By Reubin Turner, Senior Staff Writer
A trial in the trademark infringement lawsuit between Baylor University and The Baylor Alumni Association could be nixed if the university’s motion for summary judgment is granted by the court.
The motion, filed in the 74th Judicial District Court of McLennan County on July 22, is a common legal procedure that outlines the argument for either the plaintiff or the defendant and why the court should rule in their favor while forgoing a trial.
This is the first time the university has laid out explicitly its argument in the case Baylor University v. The Baylor University Alumni Association.
The case stems from the university’s termination of the association’s right to use the Baylor trademark.
Lori Fogleman, vice president for media communication, said nowhere in the bylaws or the constitution of the BAA does it mention that they are to be an independent voice for alumni of the university. She also said the university leaders believe the BAA is no longer effective in engaging alumni.
“University leaders have longed recognized the need to interact and engage with alumni for decades,” Fogleman said. She said the university began publishing Baylor Magazine in 1983 as an effort to reach out to alumni.
“Regardless of the statements of the BAA, we’re reaching out to alumni, and we’re doing it successfully.”
Indefinite duration of the contract between the two entities, vague terms and the fact that the BAA is under no obligation to perform, are all reasons cited in the motion as to why the university was within its right to terminate their original license with the association on Sept. 8, 2013.
According to the court document, “the agreements have an indefinite duration and are therefore terminable at will be either party.”
The document also states that because the contract does not specify a time period for the university to honor a license to the BAA, under Texas law, the contract is terminable at will be either party.
Baylor also states that because the terms of the contract are illusory, it is hard for the court to enforce its terms, which also makes it terminable at will by either parties. The court document cites several cases that have ruled in favor of the plaintiff on these terms.
One of the cases cited is one regarding the New Jersey Institute of Technology and its former alumni association. Breach of contract was cited as a chief complaint from the plaintiff (the alumni association in this case), and the state Superior Court Chancery Division for New Jersey ruled in favor of the university writing in a 46-page opinion that since the university owned the trademark and the terms of the contract were vague and unenforceable, they legally had a right to terminate the contract.
The original license was terminated on May 31, 2013 after a letter was sent to the BAA from the Baylor Board of Regents following a negotiation that had been reached between Baylor and the BAA.
The termination of this license was suspended, however, to allow members of the BAA to vote in favor of the transition agreement the following September.
On Sept. 7, 2013, the transition agreement failed to meet the supermajority it needed in order to become an entity that was not independent of the university. Todd Nesbitt, president of the BAA, said in an interview with the Waco-Tribune Herald that this supermajority was not required by their bylaws as many have been led to believe, rather this is “state law relative to the dissolution of a non-profit.”
According to the agreement, The Baylor Line, a magazine published by the BAA, would have come under control of the Baylor Line Corporation, a new alumni association that would have been created by the university. The agreement would have allowed the BAA to transition leadership and employees over to the new association, as previously reported by the Lariat.
The university would have then granted them a new license to “provide an independent platform” to Baylor regarding its role in higher education by allowing it to continue to publish the Baylor Line.
While the transition agreement did not reach the required supermajority, 55 percent voted in favor of the agreement. It was also supported by a number of executives within the BAA, including then-president Collin Cox.
Nesbitt stated in the interview that while a majority did support the transition agreement, he feels as though the association was strong-armed by the university to support an agreement that didn’t allow the BAA to remain a separate entity. He also stated that he believes a small number of regents and members of the Baylor administration helped to drive the fight between the university and the BAA.
Nesbitt was referring to the email released this summer by order of the court. The emails contained an exchange between Tommye Lou Davis, vice-president of constituent engagement, and Buddy Jones, then-president of the oard of regents.
In the emails, Jones expressed that he hated the BAA, to which Davis responded, “that makes two of us.” In the emails, there is also an exchange that suggests the university may not have been truthful in its intentions for tearing down the Hughes-Dillard Alumni Center. The center was the headquarters for the alumni association.
““Can’t wait to tear that building DOWN!!!! If it is tied to the stadium, few will complain! 🙂 How sweet it will be!” wrote Davis in an email to Jones. Davis was referring to the university’s argument that the space the alumni center was occupying was needed for a plaza related to the new stadium.
In a guest editorial in the Waco-Tribune Herald, President and Chancellor Ken Starr wrote that despite what the email may suggest, university leadership remains committed to peace and finding a solution.
“The members of Baylor’s volunteer board merit our heartfelt thanks, as they continue their work to ensure that the light emanating from our cherished university will, by God’s grace, shine ever more brightly into the future.”