The average telephone call in the United States costs right around a dime. That’s a number that’s held fairly steady over the past two years in the phone business.  However, if Western Athletic Conference (WAC) Commissioner Karl Benson has his way, business done over the phone is going to rise substantially, as the University of Nevada will have to pay an exit fee of $5 million dollars after one of his calls.  Seriously.

It is a staggering fee to place on a single phone call, but that’s exactly what Benson and the remnants of the WAC are attempting to do to Nevada.

The WAC Demand

In his latest and most recent demand (a word the conference used in its press release), Benson stated the following;

“The WAC fully expects to receive the $5 million from both Fresno State and Nevada and will take legal recourse if necessary to obtain the money,” said Benson.

Why is Benson demanding $5 Million from Nevada after getting what he considers a verbal agreement with Nevada President Milton Glick?

WAC Commissioner Karl Benson

For those living under a rock the past two weeks, lets review.  The Wolf Pack and the Bulldog administrations essentially sabotaged the so-called “Albrecht Plan” (a.k.a “The Project”) to reunite longtime WAC member BYU to its original conference.  The plan, which was put into place and led by Utah State President Stan Albrecht, was a complex scheme of re-solidifying the WAC and exacting some sort of revenge on the Mountain West Conference (MWC), the WAC’s nemesis since 1999, by wooing BYU out of the MWC and into a partial agreement with the WAC.

Previously this summer, the MWC swiped Boise State, the WAC’s top football program. It was a merger that placed all Bronco sports in the MWC in-time and on schedule for the future 2011-12 athletic calendar. In the BYU-to-the-WAC scheme, it was just a partial merger.  Under the pretexts of the “Albrecht Plan”, BYU, which had much to do with with the original split of the WAC and the formation of the MWC in 1999, would not post its most lucrative sport, football, into the WAC.  Instead, the LDS church-owned Cougars would take the independent football route in hopes of working closer, and potentially more financially beneficial, with ESPN.

Stan’s Plan

That was Stan’s plan. Get the Cougars, one of Utah State’s in-state rivals, into the WAC any which way he could in order to gain some momentum back in the WAC and help his Aggies spark a more natural in-state rivalry with the popular Cougars. At the same time, his plan would essentially halt the MWC’s potential march into automatic qualifier (AQ) status with the Bowl Championship Series (BCS), as the loss of BYU is considered a significant one.

But blessed with the nose of the “Fantastic Mr. Fox”, MWC Commissioner Craig Thompson sniffed out the behind the scenes action and promptly plucked the two best chicks (programs) remaining on that farm (WAC), landing commitments from Nevada and Fresno State to join the MWC.  Thompson’s mindset appeared to be that if Benson was going to scheme in an effort to pull some of the rug out under the MWC, he was going to go Cobra Kai-style and ‘Sweep the Leg’. He already landed Boise State.

By joining the MWC, the ‘Dogs and the Pack undermined the WAC’s secret-OP and essentially destroyed any conference credibility that remained in the WAC post-Boise State.  It was a crushing blow, one that would result in BYU not even joining the WAC (the Cougars chose the West Coast Conference instead).  It was the epitome of the WAC being sent to the guillotine.

“In a 12-hour period, the WAC went from having a secure and prosperous future to once again not knowing what the future will hold,” Benson said angrily in his press conference after the Nevada and Fresno State defections.

The Dotted Line

It was during that call that Benson cleared up one very important, yet contrasting issue that circulated around the media in its initial stages of this cloak and dagger conference movement story. That item was whether or not President Glick actually signed off on the “Albrecht Plan”, now in the form of a Resolution, which was requested by BYU in an effort to get WAC solidarity before it came aboard.

Earlier reports, which were likely leaked by WAC membership, said that Nevada had signed the Resolution.  That’s exactly what the WAC membership had been told by the WAC office. In an email, which was obtained and published by the Salt Lake Tribune, that Benson composed on Monday, August 16th to the rest of the WAC, he explained that he had Nevada’s signature.

“I talked with Milt (Nevada president Milton Glick) over the weekend and updated him on the Board call from Friday. He has now signed off and thus has joined the rest of the Board in unanimously approving the Resolution to enter into an agreement with BYU.”

There was some initial confusion with the “signed off” aspect of Benson’s email, and the next day, Albrecht even bragged to the Utah State Chief of Staff Sydney Peterson that the WAC, with BYU on the verge of coming aboard, was going to strike back at the MWC and Boise State specifically.

“Syd, all signatures are in place! I don’t think John or Milt has $5 million to buy their way out. (Boise State president Bob Kustra’s) world is crumbling and he is desperate, but can you imagine this afternoon’s conversation if we didn’t have the binding agreement in place?”

The next day though, everything changed. Fresno State and Nevada, with both having been approached by the MWC at this juncture, informed the WAC of their intentions to leave the conference, accepting their respective invitations from Thompson.

“This is a momentous day for the University of Nevada, Reno,” Glick said at a news conference. “We’re very excited about this. Many of our fans have wanted this for a very long time.”

“We agreed to it because had BYU come over, and they may still, they wanted to be assured of who would be there.”

Glick’s words are extremely interesting, and lead us to a very key point in his thought process regarding the Resolution. He obviously believed that by departing for the MWC he was letting BYU know that the University of Nevada was not a solid member of the WAC anymore.  BYU had not  joined the WAC yet, and it was Nevada’s call at that point to let them know where they stood.

MWC Commissioner Craig Thompson

The Wolf Pack were out.

The Backtrack

Now, back to the Resolution and whether not Glick signed it.

After hearing Glick’s presser stating that Nevada did not sign the Resolution, a fuming Benson had cause for concern.  He had already told WAC members that he had a signature (that’s what “signed off” means), so in order to start backtracking he penned an email the following day to the distraught, remaining WAC members clarifying whether or not he actually had Nevada’s signature approving the Resolution.

“… Milt stated in his comments to the media yesterday that he did not sign the Resolution calling for the binding agreement. And this morning it has been established that he in fact did not. As I had Kathy record the agreements that arrived over the weekend and on Monday she inadvertently ‘checked off’ Nevada. However, inasmuch as Milt verbally agreed to the binding agreement with me on Saturday (WAC legal counsel) Jerry (Deavitt) believes the penalty is enforceable …”

So Benson quickly moved from the position he previously stated, saying Nevada “signed off” to the Resolution, and leading other WAC members to believe it was now a binding agreement, to saying that the verbal agreement Glick gave over the phone was enough to hold Nevada responsible for a staggering $5 million dollar exit fee.

On the surface, that was a smooth move.  He was letting his face-planted WAC members know that it was just a simple clerical misfire, like they forgot to cross a “t” or dot an “i”. Benson even exuded legal assurance in the email too, letting folks know he had Nevada by the collar still.  His recent demand for payment only backed up that non-blinking, confident approach to this conundrum.

Moving Forward

Which takes us to where we currently are in this mystery of sorts.  The major question every Wolf Pack fan following this drama is asking at this point is whether Nevada is or isn’t liable for a $5 million dollar conference exit fee based on a single jingle from Benson to Glick?

The initial, common-sense person in most of us would not only say, “No, but hell no.” Can you imagine someone picking up the phone and trying to hold you to an agreement based on a single conversation and not your actual signature? How about to the tune of $5 million?

There has to be a line somewhere, even if it this dilemma is like drawing in quicksand.

After speaking with a few people in both contract law and sports law, a potential WAC vs. the University of Nevada lawsuit is intriguing to say the least.  That’s because verbal agreements are enforceable, however, only under certain conditions.  Those conditions, plus that amount, are going to make it a very slippery slope for any lawyer to navigate.

“It sounds pretty unreasonable,” one lawyer commented, when asked about holding a school to a $5 million dollar exit fee based on just a verbal agreement.

But most of our agreements in daily life are done verbally.  If I stand in line at a sandwich shop and go through the process of ordering a ham and cheese on wheat bread with the works, which is subsequently made by the sandwich-artist, than it is expected that I pay for the sandwich when I come to that portion of the line. I don’t need to sign a document at the beginning of the line committing to the purchase of the sandwich. It is implied when they verbally ask for my order. This guy is going to pay for the sandwich I make him.

However, for a fee such as this, with all the other WAC schools actually signing the Resolution, there are a number of complications facing Benson and his legal team.  The first is that the document was constantly being revised since BYU had set up side arrangements with individual teams (which were requested by various WAC teams) in order to find a balance.  Every school had a certain carrot that they wanted in place if BYU were to partially join the WAC.  It is highly questionable whether or not Benson went over all the segments of the Resolution with Glick during what he claims is a $5 million dollar verbal commitment.

Another major hurdle for the WAC is how it explains why a verbal agreement to the resolution is just as liable when it collected signatures from everyone except Nevada?  And on that same note, why did the resolution require BYU to submit a written agreement to the WAC by September 1, 2010?

“You can’t have differentiating provisions for some of the participants in a verbal agreement,” another lawyer said.  “It has to have continuity. If they were requiring signatures for the resolution from one side, this is obviously a matter that they felt needed to be written down.”

Another debatable element of this potential legal battle is that a verbal agreement is based on “Consideration”, which means that both parties have to be gaining something in order for a contract to be in place.  Monetarily speaking, Nevada would be gaining nothing in this contract.  The master and commander of this plan admitted as much in an email (posted above), knowing full well that he was putting both schools in financial doom. In this particular situation, the WAC is the only one would be gaining profit, or gaining “Consideration”.

Under those circumstances, a verbal contract could also be argued against. There are a host of other issues in place as well, but those are the most notable that we’ve found to date.

Nuisance Value

“They could just try to make it hell for you,” the first lawyer added. “Even though they don’t have much of case, that won’t preclude the conference from making this a lengthy and expensive legal process.  They could be embroiled for months perhaps, with discovery, motions and the like. That’s one of the unfortunate parts of our legal system.

“So two things you have to consider is what does each side want and what would be the most cost-effective compromise be to ending this matter, or what is called the ‘Nuisance Value.’”

That’s a term used to describe the amount a potential defendant will pay to settle a claim, not because it is a valid claim, but because the insurer considers it worth that amount to settle and close.  In Nevada’s case, they want very much to move out of the WAC after the conclusion of the recently started 2010-11 athletic calendar and pursue their future in the MWC.  That desire on the part of Nevada’s could be a completely different legal issue.

So instead of going to court, where Nevada could win one case and lose another in a series of expensive legal battles, there is the potential of a compromise.

“We disagree with Commissioner Benson’s interpretation,” Glick wrote in a rebuttal of sorts to Benson recently. “We will be contacting the WAC directly to resolve these issues, and hope they can be resolved in an expeditious fashion.”