Case Document 1 Filed 07/15/19 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER CIVIL ACTION NO. EDUCATION, Plaintiff, JURY TRIAL DEMANDED V- IMG COLLEGE, LLC, Defendant. COMPLAINT Plaintiff, University of Pittsburgh?Of the Commonwealth System of Higher Education by and through its undersigned counsel, Buchanan Ingersoll Rooney PC, alleges as follows for its Complaint against Defendant, IMG College, LLC INTRODUCTION 1. This lawsuit arises from intentional breach of its contractual obligations to Pitt under a License Agreement, in retaliation for Pitt exercising its contractual right by allowing the License Agreement to expire on its own terms. Rather than pay Pitt monies that are undisputedly owed under the License Agreement, IMG has improperly Withheld in excess of $3 .6 million and has refused to cure following a demand for payment by Pitt. Pitt has fully performed its obligations under the License Agreement and seeks judicial intervention in order to obtain compliance and Pitt?s bene?t of the bargain. Case Document 1 Filed 07/15/19 Page 2 of 8 PARTIES 2. Founded in 1787, Pitt is one of the oldest universities in the United States. Pitt is a state-related institution of higher learning and a non-pro?t corporation with its principal place of business in Pittsburgh, 3. Pitt operates an intercollegiate varsity athletic program on its Pittsburgh campus through a Department of Athletics (the ?Athletic Program?). Pitt?s successful Athletic Program is a NCAA Division I member, and Pitt is a member of the Atlantic Coast Conference 4. IMG is a Delaware limited liability company with its principal place of business in Winston-Salem, North Carolina. two members are residents of the States of Ohio (International Merchandising Company, LLC) and Georgia or North Carolina (Ashely Page). 5. IMG touts itself as the nation?s leading collegiate sports marketing company with exclusive marketing rights to nearly 90 universities and colleges. 6. In November 2013, Pitt and IMG (collectively, the ?Parties?) entered into a written License Agreement, effective as of July 1, 2012, as amended effective June 1, 2015 (collectively, the ?License 1 The License Agreement and all invoices referenced herein are not currently attached hereto because of their confidential nature. IMG is in possession of all documents referenced in the Complaint. 2 Case Document 1 Filed 07/15/19 Page 3 of 8 JURISDICTION AND VENUE 7. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. ?l332(a) because there is diversity of citizenship among the Parties and the amount in controversy exceeds $75,000, exclusive of interest and costs. 8. Venue is proper in the Western District of pursuant to 28 U.S.C. ?139l(b) as a district in which IMG resides and/or conducts business, and in which a substantial part of the events giving rise to the claim occurred. 9. In the License Agreement at issue in this action, the Parties agreed that any dispute arising out of the License Agreement ?shall be adjudicated in, and only in, a federal or state court of appropriate jurisdiction located in Allegheny County, IMG further expressly agreed and consented to personal jurisdiction and venue in this Court. THE LICENSE AGREEMENT 10. Under the License Agreement, IMG received an exclusive license to Pitt?s ?inventory? of marketing rights with respect to Pitt?s Athletic Program, which included: the right to arrange for certain radio broadcasts of Pitt athletic events not subject to other network commitments; to produce, and, if requested, to distribute and sell certain Athletic Department publications and materials; to obtain and directly contract with third-party sponsors; and, with certain enumerated exceptions, to exploit other marketing, promotional and commercial rights associated with Pitt?s Athletic Program (the ?License?). Case Document 1 Filed 07/15/19 Page 4 of 8 11. The License Agreement had a term of seven years and unless extended, expired on its own terms on June 30, 2019. Pitt did not elect to extend the License Agreement following the end of the term. As a consequence, the License Agreement expired on June 30, 2019. Financial Obligations under Article IX 12. ?nancial obligations are largely contained in Article IX of the License Agreement. 13. In exchange for the grant of the License, IMG agreed to make certain payments to Pitt, including a ?Guaranteed Royalty,? which was due annually on June 1 of each year that the License Agreement was in effect. 14. Under Section 9.2 of Article IX of the License Agreement, IMG agreed to pay Pitt the following on June 1, 2019: a broadcast rights royalty a publication rights royalty compensation for game tickets and parking passes provided to IMG by Pitt and an additional amount for 2019 Case Document 1 Filed 07/15/19 Page 5 of 8 15. In addition to the foregoing amounts, under Section 9.4 of Article IX of the License Agreement, IMG also agreed to pay Pitt additional consideration for ?exceptional performance? .2 16. IMG did not make any of the aforementioned payments to Pitt which were due on June 1, 2019. 17. On June 6, 2019, Pitt, through its counsel, demanded payment. 18. To date, IMG has not paid, and has intentionally withheld, $3,535,000 owed to Pitt under Article IX of the License Agreement. Financial Obligations Under Article VII 19. Under Sections 7.5 and 7.6 of Article VII of the License Agreement, IMG agreed to reimburse Pitt, within 30 days after delivery of an invoice from Pitt, for travel costs incurred by Pitt on behalf of IMG staff and sponsors. These costs included, all non-charter air transportation and all travel-costs associated with post-season games. 20. On June 6, 2019, Pitt delivered to IMG an itemized invoice of travel costs totaling $26,364.65. 21. Despite Pitt?s submission of the June 6, 2019 invoice, IMG has not paid, and has intentionally withheld, $26,364.65 owed to Pitt under Article VII of the License Agreement. 2 In 2018, Pitt?s football team appeared in the ACC championship game, entitling Pitt to an exceptional performance payment. 5 Case Document 1 Filed 07/15/19 Page 6 of 8 IM ?5 Other Financial Obligations Under the License Agreement 22. Pursuant to the rights granted under the License Agreement, IMG directly contracted with UPMC to be a Sponsor of Pitt?s Athletic Program. 23. To assist IMG in meeting its obligations to UPMC under that contract, Pitt, and not IMG, generated the content displayed on Pitt?s Pitt LiveWire? platform. 24. Therefore, in each year that the Pitt LiveWire? platform was in place, IMG was obligated to pay Pitt $25,000 for Pitt?s contribution to marketing efforts regarding the Pitt LiveWire? platform. 25. On June 6, 2019, Pitt delivered to IMG an invoice for $25,000 with respect to the Pitt Live Wire? sponsorship. 26. Despite Pitt?s submission of the June 6, 2019 invoice, IMG has not paid, and has intentionally withheld, $25,000 owed to Pitt. 27. Additionally, under the License Agreement, IMG agreed to facilitate Pitt?s online auctions and was obligated to pay Pitt 80% of all revenue generated in 2019 by the online auctions. 28. IMG has not paid, and has intentionally withheld, $23,534.86 of online auction revenue owed to Pitt. Case Document 1 Filed 07/15/19 Page 7 of 8 29. In total, IMG has not paid, and has intentionally withheld, $3,609,899.51 owed to Pitt pursuant to and in connection with License Agreement in retaliation for Pitt?s decision not to extend the term of the License Agreement. Pitt is Contractual Right 0 Not Extend the License Agreement 30. Before the expiration of the License Agreement on June 30, 2019, the Parties negotiated in good faith regarding whether to extend the term of the License Agreement. 31. On March 13, 2019, Pitt, through its Director of Athletics, Heather Lyke, noti?ed IMG in writing of its decision not to extend the License Agreement beyond its stated June 30, 2019 expiration date. Pitt subsequently decided to license its Athletic Program marketing rights to another marketing company following expiration of the License Agreement. 32. Therefore, the Parties did not agree to extend the term of the License Agreement beyond June 30, 2019. COUNT I BREACH OF CONTRACT 33. Pitt incorporates Paragraphs 1 through 32 of the Complaint as if set forth herein in their entirety. 34. Under the License Agreement, IMG agreed to pay Pitt royalties, reimbursement for travel costs, online auction revenue and other fees when due. 35. By intentionally failing to pay monies when due, IMG breached the License Agreement. Case Document 1 Filed 07/15/19 Page 8 of 8 36. Pitt noti?ed IMG of its breach as required pursuant to the notice provisions in the License Agreement. 37. has not cured its failure to pay monies owed to Pitt. 38. - Pitt has fully performed all of its obligations under the License Agreement. 39. As a result of lMG?s breach of the License Agreement, IMG has caused Pitt damage. WHEREFORE, Plaintiff Pitt respectfully demands judgment in its favor and against Defendant IMG for breaches of the License Agreement, awarding compensatory damages in an amount to be proved at trial, which amount exceeds $75,000, exclusive of interest and costs, and such other relief as the Court deems just and proper. A TRIAL BY JURY IS DEMANDED. Dated: July 15, 2019 BUCHANAN INGERSOLL ROONEY By: s/ Gretchen L. ankowski Gretchen L. ankowski (Pa. ID. No. 74540) gretchen.iankowsk@bipc.com Phone: 412?562?1417 Sydney Rochelle Normil (Pa. ID. No. 320989) sydnev.normil@bipc.com Phone: 412-562-1545 One Oxford Centre 301 Grant Street, 20th Floor Pittsburgh, PA 15219?1410 Fax: 412-562?1041 Counsel for Plaintiff University of Pittsburgh? Of the Commonwealth System of Higher Education 8 Case Document 1-1 Filed 07/15/19 Page 1 of 2 1344 (Rev- 02/19) CIVIL COVER SHEET The 44 civil cover sheet and the information contained herein neither replace nor supplement the ?ling and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Con erence of the United States 1n September 1974,13 required for the use of the Clerk of Court for the purpose of Initiating the civil docket sheet (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM I. PLAINTIFFS DEFENDANTS University of Pittsburgh?Of the Commonwealth System of Higher IMG College, LLC Education County of Residence of First Listed Plaintiff Allegheny County County of Residence of First Listed Defendant (EXCEPT IN US. PLAINTIFF CASES) (IN U. S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVE Attorne (Firm Name, Address, and Tele?hane Number) Attorneys (If Known) Gre chen L. ankowski, Esquire, Buc anan lngersoll Rooney PC One Oxford Centre, 301 Grant St 20th Floor, Pittsburgh, PA 15219 412-562-8800 II. BASIS OF JURISDICTION (Place an in One Box Only) 111. CITIZENSHIP OF PRINCIPAL PARTIES (Place an in One Box for Plaintiffr (F or Diversity Cases Only) and One Boxfor Defendant) CI 1 US. Government El 3 Federal Question PTF DEF PTF DEF Plaintiff (US. Government Not aParty) Citizen of This State 1 El 1 Incorporated or Principal Place 5 4 Cl 4 of Business In This State El 2 US. Government 5 4 Diversity Citizen of Another State El 2 2 Incorporated and Principal Place CI 5 12? 5 Defendant (Indicate Citizenship of Parties in Item 111) of Business In Another State Citizen or Subject of a El 3 El 3 Foreign Nation El 6 El 6 Foreign Country IV. NATURE OF SUIT (Place an in One Box Only) Click here for: Nature ofSuit Code Descriptions. if i517110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure El 422 Appeal 28 USC 158 El 375 False Claims Act 120 Marine 1:1 310 Airplane 1:1 365 Personal Injury - ofProperty 21 USC 881 El 423 Withdrawal 130 Miller Act El 315 Airplane Product Product Liability Cl 690 Other 28 USC 157 3729(a)) El 140 Negotiable Instrument Liability 367 Health Carol 400 State Reapportionment El 150 Recovery of Overpayment El 320 Assault, Libel Pharmaceutical PR HT. ifai- ?1 El 410 Antitrust Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking El 15] Medicare Act Cl 330 Federal Employers? Product Liability 830 Patent El 450 Commerce El 152 Recovery of Defaulted Liability El 368 Asbestos Personal 835 Patent - Abbreviated El 460 Deportation Student Loans l] 340 Marine Injury Product New Drug Application Cl 470 Racketeer In?uenced and (Excludes Veterans) 345 Marine Product Liability 840 Trademark Corrupt Organizations El 153 Recovery of Overpayment Liability PERSONAL PROPERTY 31.; 480 Consumer Credit of Veteran?s Bene?ts El 350 Motor Vehicle El 370 Other Fraud El 710 Fair Labor Standards 861 HIA (1395ff) El 485 Telephone Consumer CI 160 Stockholders? Suits El 355 Motor Vehicle Cl 371 Truth in Lending Act El 862 Black Lung (923) Protection Act 12" 190 Other Contract Product Liability Cl 380 Other Personal 0? 720 Labor/Management El 863 (405(g}} El 490 Cable/Sat TV El 195 Contract Product Liability El 360 Other Personal Property Damage Relations El 864 SSID Title XVI El 850 Smarines/Commodities;I CI 196 Franchise Injury El 385 Property Damage 740 Railway Labor Act 865 RSI (405(g)) Exchange El 362 Personal Injury - Product Liability CI 751 Family and Medical 890 Other Statutory Actions Medical Malpractice Leave Act . [3 891 Agricultural Acts .. CIVIL - 790 Other Labor Litigation FEDERAL El 893 Environmental Matters 210 Land Condemnation 440 Other Civil Rights Habeas Corpus: El 791 Employee Retirement El 870 Taxes (US. Plaintiff El 895 Freedom of Information 220 Foreclosure El 441 Voting Cl 463 Alien Detainee Income Security Act or Defendant) Act El 230 Rent Lease Ejectment El 442 Employment El 510 Motions to Vacate 871 Party El 896 Arbitration 240 Torts to Land El 443 Housing/ Sentence 26 USC 7609 El 899 Administrative Procedure 245 Tort Product Liability Accommodations El 530 General Act/Review or Appeal of El 290 All Other Real Property CI 445 Amer. wlDisabilities El 535 Death Penalty . Agency Decision Employment Other: Cl 462 Naturalization Application El 950 Constitutionality of El 446 Amer. - El 540 Mandamus Other 465 Other Immigration State Statutes Other El 550 Civil Rights Actions El 448 Education 555 Prison Condition 560 Civil Detainee - Conditions of Con?nement V. ORIGIN (Place an in One Box Only) H1 Original El 2 Removed from El 3 Remanded from El 4 Reinstated or El 5 Transferred from El 6 Multidistrict El 8 Multidistrict Proceeding State Court Appellate Court Reopened Another District L1t1gat1on - Litigation - (Specl?l) Transfer Direct File Cite the U. S. Clvil Statute under which you are ?ling (Do not cite Jurisdictional statutes unless diversity). 28 U. s. c. ?1332 Brief descri non of cause: Breach 0 License Agreement VI. CAUSE OF ACTION VII. REQUESTED IN Cl CHECK IF THIS IS A CLASS ACTION DEMAND CHECK YES only if demanded in complaint: COMPLAINT: UNDER RULE 23, F-R-CV-P- In exces of $75 000 JURY DEMAND: 119?. Yes RELATED . IF ANY (See instructions): JUDGE DOCKET NUNIBER DATE SIGNATURE OF ATTORNEY OF RECORD 07/15/2019 ls/ Gretchen L. Jankowski FOR OFFICE USE ONLY RECEIPT AMOUNT APPLYING IFP JUDGE MAG. IUDGE Case Document 1-1 Filed 07/15/19 Page 2 of 2 JS 44A REVISED June, 2009 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF THIS CASE DESIGNATION SHEET MUST BE COMPLETED PART A This case belongs on the Erie Johnstown @Pittsburgh) calendar. 1. ERIE CALENDAR ~If cause of action arose in the counties of Crawford, Elk, Erie, Forest, McKean. Venang or Warren, OR any plaintiff or defendant resides in one of said counties. 2. JOHNSTOWN CALENDAR -If cause of action arose in the counties of Bedford, Blair, Cambria, Clearfield or Somerset OR any plaintiff or defendant resides in one of said counties. 3. Complete if on ERIE CALENDAR: I certify that the cause of action arose in County and that the resides in County. 4. Complete if on JOHNSTOWN CALENDAR: I certify that the cause of action arose in County and that the resides in County. PART (You are to check ONE of the following) This case is related to Number .Short Caption This case is not related to a pending or terminated case. OF RELATED CASES: CIVIL: Civil cases are deemed related when a case filed relates to property included in another suit or involves the same issues of fact or it grows out of the same transactions as another suit or involves the validity or infringement of a patent involved in another suit EMINENT DOMAIN: Cases in contiguous closely located groups and in common ownership groups which will lend themselves to consolidation for trial shall be deemed related. HABEAS CORPUS RIGHTS: All habeas corpus petitions filed by the same individual shall be deemed related. All pro se Civil Rights actions by the same individual shall be deemed related. PARTC I. CIVIL CATEGORY (Select the applicable category). 1. Antitrust and Securities Act Cases Labor?Management Relations Habeas corpus Civil Rights Patent, Copyright, and Trademark Eminent Domain I All other federal question cases All personal and property damage tort cases, including maritime, FELA, Jones Act, Motor vehicle, products liability, assault, defamation, malicious prosecution, and false arrest . 9.(3 Insurance indemnity, contract and other diversity cases. 10.C) Government Collection Cases (shall include HEW Student Loans (Education), A. Overpayment, Overpayment of Social Security, Enlistment Overpayment (Army, Navy, etc.), HUD Loans, GAO Loans (Misc. Types), Mortgage Foreclosures, SBA. Loans, Civil Penalties and Coal Mine Penalty and Reclamation Fees.) I certify that to the best of my knowledge the entries on this Case Designation Sheet are true and correct Gretchen L. Jankowski Date: 07/15/2019 ATTORNEY AT LAW NOTE: ALL SECTIONS OF BOTH FORMS MUST BE COMPLETED BEFORE CASE CAN BE PROCESSED. Case Document 1-2 Filed 07/15/19 Page 1 of 1 A0 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the Western District of University of Pittsburgh?Of the Commonwealth System of Higher Education P/ainzI?Ts) V. Civil Action No. IMG College, LLC Defendant?) SUMMONS IN A CIVIL ACTION TO: (Defendant?s name and address) IMG College, LLC 540 North Trade Street Winston Salem, NC 27101?2915 A lawsuit has been ?led against you. Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if you are the United States or a United States agency, or an of?cer or employee of the United States described in Fed. R. Civ. P. 12 (20(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff attorney, whose name and address are: Gretchen L. Jankowski, Esq. Sydney Rochelle Normil, Esq. Buchanan lngersoll Rooney PC One Oxford Centre 301 Grant St, 20th Floor Pittsburgh, PA 15219 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must ?le your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk