The Clemson and Florida State lawsuits are as polarizing a subject as you’ll find in college athletics these days.
If you think it’s going to be quick and easy for one side or the other, you’re accused of playing favorites.
@chapelfowler of theState.com writes a very interesting article where he pulls multiple legal experts together asking if Clemson can win their lawsuit against the ACC.
It’s well worth a read, and you can get behind the paywall by just answering a few questions. What were some of the highlights?
Where will the case be heard?
In his experience, New York-based corporate lawyer Irwin A. Kishner said the issue of venue is “usually settled pretty quickly up front” since most contracts specifically say (or make very clear) where any potential lawsuits should happen.
David McKenzie, an intellectual property lawyer based in North Carolina, agrees. The Clemson-ACC lawsuit, he predicted in an interview, “ultimately will go to Charlotte.”
Can Clemson break the GOR?
Given those details, Kishner and McKenzie see the “sophistication” argument as a no-go. “You can make a credible argument that both sides were represented by very sophisticated legal advisors,” Kishner said. “You would’ve thought the issue would’ve been studied to a certain extent, right? Ultimately, I think it’s a tough battle to wage.”
What about the Damages Claim?
Jayaratnam argued that zeroing in on the actual “price” of, say, Clemson departing the ACC could be a more feasible path toward the school’s ultimate goal — a smaller exit fee, or no exit fee at all — as opposed to challenging the grant of rights contract.
“It could be that a court says, ‘There’s no way it’s $570 million to leave,’” Jayaratnam told The State in January. “But the court could say, ‘But it is $130 million,’ which I think (schools) would be willing to pay.”
So Can Clemson win?
Kishner usually refrains from predictions since every case in his field of sports media law is unique and fact-specific. In an initial review of the Clemson vs. ACC case, though, he said it’s a bit of a “coin flip.” If he had to pick a side? It’s the ACC.
Jayaratnam wrote, referencing Clemson’s argument that the ACC’s grant of rights wouldn’t apply to home games played post-ACC departure. If a court decides that’s the “proper interpretation” of the grant of rights, “then both FSU and Clemson could live happily under the agreement” and pay a one-time exit fee (which would still be in the millions, of course) if they chose to leave the ACC.
At that point, McKenzie said, if you’re the judge “you really don’t have to go much farther than sitting James Barker down and asking him, ‘Is this your signature?’ And then ask the next question: ‘Did you receive money under this agreement?’” “And the answer to those questions are definitely yes.”
Well, there you have it. Three distinct and separate lawyers that make it clear at a minimum that Clemson at best could get out for a significant cost north of $100 Million for each. Certainly with that number Clemson and FSU would find a way to pay, but at worst for them virtually everything from the ACC perspective is upheld, and we’re in that nearly $1 Billion range combined.
As I’ve said before on the blog, there is no debate that Clemson and FSU are going to make every effort to leave the ACC, but we’re still far off from any resolution to this.
