Guest Post: ACC vs. Clemson: The ACC's Motion to Dismiss

Ed note: TwistNHook is continuing on with his legal analysis of lawsuits between Clemson and the ACC that started by looking at Clemson’s initial suit the ACC’s counter suit, and Clemson’s motion to dismiss. Meanwhile, here’s a link to all of his prior analysis of FSU vs. ACC posts.

Good morning, friends!  Let’s continue our journey through the 4 different lawsuits percolating throughout the American South.  Today, we are focused on the one in South County in a county with a population of approximately 130,000.  This is a super rural county in the northwest corner of SC next to Georgia and NC.  Billion dollar deals hang in the balance.  

Today, we are dealing with the Motion To Dismiss/Stay that the ACC filed in the Clemson v. ACC lawsuit in Pickens County, SC.  The ACC opens with a brief summary of how Clemson has loved the ACC until it didn’t work for them.  In fact, when Maryland successfully left the ACC, Clemson authorized a lawsuit in NC to seek more than $52 million in damages, even though Maryland is as sovereign an entity as Clemson.  They reiterate all the times Clemson signed all the documents in dispute here and made comments about how great they are.  

They emphasize that the issues in SC are part of a separate lawsuit involving FSU ongoing in NC.  They emphasize that one judge should make this decision (and it just happens to be ACC’s preferred judge) and not multiple Judges in multiple states.  They note that that preferred Judge has already made the jurisdiction decision in the FSU case.  Finally, they note that one of the Clemson action requests a SC Judge determine the scope of authority of a NC Judge.  The ACC argues that no reality exists where a SC Judge can rule on the authority of a NC Judge (and vice versa).  

One thing I noticed about this motion is that they didn’t go through the causes of action individually to argue why each one individually should be dismissed (outside of #5).  I am not an expert in SC law, so maybe I am unaware of some reason why the ACC cannot do this.  However, if they can, then I think they should try to do that.  Either the ACC lawyers missed this (unlikely), SC law does not allow it, or the Clemson lawsuit is better drafted than the FSU one such that ACC could not create an argument to individually dismiss each cause of action.  

Personal Jurisdiction

General jurisdiction is the ability for a state Court to make decisions over a person or entity.  According to the ACC, it exists where an organization is formed or has its principal place of business.  The ACC argues that the ACC is not formed in SC and does not have its principal place of business in SC.  As such, SC does not have general jurisdiction over the ACC and Judges cannot make rulings about it.  ACC argues that the Clemson lawsuit does not handle this point at all.  

The ACC notes that they own or lease no real property in SC, are not registered to do business there, have no offices or employees in SC, and do not even have an agent for service of process there.  The ACC is arguing that there are minimal contacts in SC, because they are trying to avoid the Court finding specific jurisdiction.  This is slightly different from general jurisdiction.  General is when you are actively in the state, specific is if you maybe are not actively in the state but you come into the state enough to create jurisdiction.  

Clemson argued this in their complaint, noting how many times the ACC has held events in SC (including multiple ones in the greater metropolitan Myrtle Beach area!).  This is why I think the ACC has started holding all their championship games in NC itself.  

The motion argues that there are 2 elements to proving specific jurisdiction in SC:  power and fairness.  

To prove the power element, Clemson has to prove:

1. Duration of activity of non resident within state

2. Character and circumstances of acts

3. Inconvenience resulting to the parties

4. State’s interest

To prove fairness, the Court considers the burden of the Defendant, South Carolina’s interests, efficiency of the litigation, and the Plaintiff’s interests.  Naturally, the motion finds that all these factors weigh in the ACC’s benefits.  

While Clemson listed a number of actions the ACC has done in SC, the ACC argues that South Carolina Code 36-2-803(a) requires the lawsuit to arise from the “acts enumerated.”  Basically, the lawsuit has to relate to the contacts.  

The ACC argues that holding the golf championship at Coastal Carolina etc does not relate to whether or not the rights assigned to the GOR for football games include rights after Clemson leaves.   The ACC argues that the items listed consist of a small portion of all actions the ACC takes.  The ACC argues that the profit made by the events listed consist of a miniscule portion of profit made by the ACC.  As such, the ACC argues that these events held in SC are not systematic and are unrelated to the lawsuit such that they do not confer specific jurisdiction.  

The ACC indicates that the sole issue at dispute in the lawsuit is payment of funds in relation to IP rights.  Nothing in the GOR requires the Clemson football games to be played in SC.  The only thing the GOR requires is that Clemson receive money in exchange for giving the ACC its IP rights in its football broadcasts.  

In fact, the vast majority of the contract takes place outside of SC itself.  The purpose of the rights being assigned is so the games can be broadcast throughout America, not just local to Pickens County.  

Clemson argues that the ACC is making money based off of Clemson football games, so that counts as contacts in SC.  The ACC argues that that this is not true.  All revenue generated by Clemson football games stays with Clemson.  ACC makes money off of the broadcasts, not the ticket sales, food etc

Clemson argues that because other ACC teams come into SC for games with Clemson etc. that should count as contacts for jurisdiction.  The ACC argues that each individual ACC team is separate from each other and the ACC itself.  This is supported by FSU and Clemson, in part, who argue that they are separate from the ACC and do not owe fiduciary duties to the ACC.  Thus, VaTech or Syracuse coming to SC is not equal to the ACC coming into SC.  This would also mean that Clemson going to Massachusetts or Virginia would open them up to litigation there (which they oppose under the sovereign immunity law).  

The ACC also argues that they have not held an event in SC since 2021.  To that, I say BOOO!!  Hold more events in Myrtle Beach in mid June and late December!!!  Preferably events Cal attends.  Either way, the ACC argues that this means there are insufficient contacts for jurisdiction.  The motion argues that Clemson’s amended complaint fails to argue how holding a track championship or golf event in SC proves that the ACC can be sued there.

The motion also cites to South Carolina cases that explicitly state that the state for litigation is the state where the contracts were signed.  The ACC argues that since the ACC Commissioner signed the contracts last, that makes them NC contracts.  Therefore, NC should be the situs for the lawsuit.  

Next, the ACC indicates that they do not specially advertise in SC.  They argue that they generally promote the ACC throughout America.  Additionally, they argue that buying tickets to an event in SC cannot confer jurisdiction.  That would mean that any school or any conference that comes to SC would open itself up to litigation there.  

Basically, the ACC goes through every one of the Amended Complaint’s arguments about jurisdiction and tries to undercut them.  Will the Judge agree with them?  

Slander Of Title

The next issue is Slander Of Title.  This is a new cause of action in the Amended Complaint.  In this cause of action, Clemson argues that the ACC has been lying about who owns Clemson’s IP rights and its affecting Clemson’s ability to jump to the Big10 or SEC.  The lie is that the ACC owns Clemson’s IP rights even if Clemson leaves the conference.  

Here, the ACC argues less about the validity of that argument but more about whether it imbues SC with jurisdiction.  The law cited indicates that the defendant has to aim the lie at the forum itself (ie SC).  Here, the ACC argues that the alleged lie has nothing to do with SC itself and is not designed specifically to SC citizens.  As such, the motion argues that slander of title itself cannot be used to justify jurisdiction.  

Motion To Stay

The next argument that the ACC raises is their Motion To Stay.  They use the word “abate” but that means stay.  The first argument there is that the matter is already in dispute in NC, so we should use that court.  It doesn’t make sense to have multiple jurisdictions fighting over the same issue.  You could end up with different rulings in different areas.  

The ACC acknowledges that Clemson gets deference for its preferred location.  However, it argues that there are two items that should diminish that for Clemson.  One is that the ACC alleges Clemson filed its lawsuit 2 days prior to the NC hearing on jurisdiction to try to avoid any problems raised in that NC suit.  For example, if NC ruled that NC was the proper jurisdiction and then Clemson filed, Clemson would be in a weaker position to argue that SC was the right spot.  

The other issue raised is that the ACC alleges that Clemson was discussing these issues with the ACC.  The ACC states that Clemson reached out to the ACC and then filed anyway.  The ACC argues that Clemson shouldn’t get their preferred location when they ambushed the ACC like that.  

By the way, if I was the ACC, I would have started doing something when Clemson refused to show up for the January, 2024 hearing about the FSU lawsuit.  Every other school (besides FSU) showed up and voted in favor of suing FSU.  I would have started drafting that lawsuit and potentially even filed it in NC just to be safe.  That’s just me, though.  

Lastly, the ACC argues that under Clemson’s analysis, basically every single ACC school could sue in their preferred location and get priority there.  That means that the ACC could be dealing with 12 different states worth of interpretations of the relevant contracts here.  To the ACC, that seems bizarre and reflects the need for everything in NC.  

Fifth Cause Of Action

Lastly, the ACC focuses on one of Clemson’s causes of action.  As I noted above, if I were the ACC, I would have tried to go at each one individually (as Clemson did in their Motion To Dismiss in NC).  They only focus on the 5th cause of action, which relates to sovereign immunity.  The ACC argues that they cannot sue in SC over sovereign immunity.  This is to say that Clemson cannot ask a SC judge to declare that a NC Judge has no authority over Clemson.  

The ACC argues that that argument has to be raised in NC (which Clemson has raised there).  You can’t ask a Judge in one state to rule on the authority of a Judge in another state.  I am sure that a SC Judge would be unhappy if somebody in another state tried to limit their authority.  The motion also notes that the NC Judge already rejected this sovereign immunity argument on similar lines (which I analyze in my post on the FSU Motion To Dismiss Order and also on the Clemson Motion To Dismiss post).  

Conclusion

I am starting to get a feel on how the NC and FL Judge’s are going to approach everything here.  I still do not have a clear picture on the SC Judge’s approach.  This will be the first item raised in front of them.  What will their approach be?  The ACC has raised many issues and provided many legal citations here.  Will it be enough?  Let’s see what Clemson’s opposition says and we can go from there.  Thanks for reading, I appreciate it!