Guest Post: ACC vs. FSU - Florida State's Motion to Dismiss, Part 1

TwistNHook continues his (perhaps never-ending?) legal analysis as the ACC and FSU continue to duke it out.

This Florida State fan appears more pensive than sad, but I’m running out of screen grabs at this point

Ed Note: Twist covered the ACC’s Motion to Dismiss last week, so of course he had no choice but to cover Florida State’s Motion to Dismiss. So much potential for dismissal! Our thanks as always to our inexhaustible legal correspondent!

Part 1: ACC Stability
Part 2: FSU vs. ACC Part 1
Part 3: FSU vs. ACC Part 2
Part 4: The ACC Strikes Back Part 1
Part 5: The ACC Strikes Back Part 2
Part 6: Florida State's Amended Complaint
Part 7: The ACC's Motion to Dismiss, Part 1
Part 8: The ACC’s Motion to Dismiss, Part 2

The deep dive into the ACC/FSU legal wranglings continues.  In other posts, we have discussed the underlying lawsuits (one filed in North Carolina and the other filed in Florida).  In this post, I wanted to discuss a Motion To Dismiss And/or Stay filed by FSU.  FSU filed this motion in North Carolina court.  

They filed before the ACC filed their motion.  In any litigation, you have to analyze who the status quo works for.  Here, it works for the ACC.  As such, you will see the ACC slowing the process down.  They will wait until the last second to file their motions.  FSU, however, wants to change the status quo.  Therefore, you will find them filing things as quickly as possible.  They will also try to move things forward as fast as possible (which is probably why they stipulated to part of the ACC’s motion to seal).  

They filed their motion early and got a date of March 22, 2024 at 9:30 AM EST (which means if I wanna follow it live I gotta get up early!).  This is set in the North Carolina Business Court, which is a specialized court set up for complex business litigation.  Looking at the Leon County docket for the ACC Motion, it does not appear that it has been fully processed yet and a hearing date set.  I have no idea that date will be for the ACC Motion to dismiss.  However, that will most likely be after 3.22.24.  If so, the FL court will be looking to the NC Court to see what they do.  

If the NC Court does dismiss and/or stay the NC action, then presumably the FL Court would not do so with the FL action.  However, if the NC Court denies FSU’s motion here, then, presumably, the FL Court would stand down.  There is some reality where both motions are denied and both lawsuits proceed.  That would be somewhat bizarre, but is a possibility.  

That would most likely benefit the ACC, because FSU wants simplicity.  They want a simple judicial order that states the GOR and/or withdrawal penalties are void.  If there are multiple lawsuits and potential for complicated rulings, then they are not in a strong position to leave the ACC.  Fox (who funds the Big10 medial deals) wants legal simplicity and may be hesitant to agree to FSU coming in if there is not legal finality.  

So, with that stage set, let’s dig in to this motion and see what is going on.  This is the mirror image of the ACC motion insomuch as FSU argues that NC lacks jurisdiction, but if NC has jurisdiction, they should dismiss the case, but if they do not dismiss the case, the case should be stayed.  

They list the following reasons that the Court should approve the requested relief:

1. The ACC filed prematurely

2. The ACC failed to follow its appropriate procedures for filing a lawsuit

3. Sovereign Immunity precludes the filing of this in NC

4. The ACC lawsuit fails to plead that the FSU Board approved the GOR

5. NC law does not support the ACC’s request to “impose broad, extra-contractual, fiduciary duties on each of its members.”

In reading both of these motions, I personally believe that the ACC Motion goes further into depth in each of its arguments.  It cites to more law than the FSU Motion does.  This is something I raised in regards to the underlying lawsuits themselves.  The FSU Motion is somewhat more top level.  

Premature Filing

In this section, the motion argues that the ACC lawsuit was premature and should be dismissed. Interestingly, the ACC Motion in FL argues almost the exact same thing.  Both of them cannot be right that each lawsuit was premature!  There can only be one!  

FSU argues here that the ACC filing was due to speculation that the FSU board could authorize a filing.  The motion argues that the FSU board could have not authorized a filing or that the Board could have authorized the filing, but then FSU itself decided not to follow that authorization.

This strikes me as ahistorical.  I’m old enough to remember December 2023 and I remember how angry FSU was in December 2023.  They’d been talking about this filing for some time.  The ACC Motion in FL notes that the a draft lawsuit had previously leaked.  

It is not a situation where the ACC lawsuit came out of the blue.  FSU was clearly focused on filing a lawsuit to get the GOR thrown out and the ACC upset that apple cart by striking first.

I think that FSU is a bit frustrated by their legal strategy being thrown off immediately.  In footnote 1 on page 1, the motion notes that the ACC had a process server waiting for FSU’s general counsel as she left the FSU Board meeting.  This was the December 22, 2023 Board meeting where they authorized the lawsuit.  As the general counsel was leaving to file their FL lawsuit, the process server ambushed her with the service of the NC lawsuit.  

Oh to be a fly on the wall then!!!!

The motion cites to law indicating that “future or anticipated” legal action does not give rise to a lawsuit like the ACC’s lawsuit in NC.  The motion quotes language stating that “it is necessary that litigation appear unavoidable.”  I think in this situation, the litigation appeared unavoidable.  The FSU lawsuit draft leaked.  They set a meeting to authorize the lawsuit.  Any thought that hypothetically FSU could have decided not to file etc is just ahistorical.  

Most importantly, the Motion here tries to argue that “at a minimum, the filing date for this action should be deemed January 17, 2024, the date on which the Amended Complaint was filed.”  They want to somehow be deemed the first filed case.  However, firstly, that is most weird time travel nonsense (similar to their “going back in time to August 2023” stuff in their FL complaint).  Also, FSU amended their complaint in FL after the ACC did in NC.  

So, FSU is comparing their initial filed complaint with the ACC Amended complaint.  Does not make a lot of sense there.  

Two Thirds Vote To File Lawsuit

This is a somewhat minor procedural argument, but it is probably FSU’s strongest argument in the whole motion.  Section 1.6.2 of the ACC Manual seems to indicate that a 2/3rds vote of the member institutions is required to initiate any material litigation.  Here are the ACC Bylaws.

The language there starts on page 21 and continues onto page 22.  This does seem relevant and could trip up the ACC.  I am somewhat certain that if they put this to a vote, more than 2/3rds of the teams would vote in favor of the lawsuit (especially if the 3 new teams are included).  However, allegedly such a vote was not done prior to filing the lawsuit.  

I am curious as to what the ACC will say in response.  In their FL motion, they touch briefly on it and kind of just brush this aside.  They didn’t have a substantive response.  

My question here is what the remedy is.  Assuming that the vote did not occur, will that cause the NC Court to dismiss the case?  Is there some alternative remedy that they may apply?  Of all of the arguments FSU puts forward, this is the strongest in my opinion.  

Sovereign Immunity

At the outset, it is important to understand that FSU did not raise this in their complaint in FL.  I am not sure why they did not do so if this is a relevant issue in the motion here.

Their argument here is basically that FSU can only be sued in FL, period.  I find this odd, because a logical extension would require the ACC to sue its member institutions in multiple states at the same time to resolve an issue.  

A few problems immediately arise here.  Florida Statutes 1001.72(1) explicitly states that FSU can be sued “in all courts of law and equity.”  This indicates that Courts outside of FL could be the landing spot for FSU lawsuits.  FSU tries to argue around this by saying that “all courts of law and equity” really means “all Florida courts of law and equity.”  

Speaking solely to CA-based laws on statutory construction, Courts need to look at the plain language of the statute in interpretation first.  The plain language does not include the word “Florida.”  That would mean that it would be all courts.  

Also, it is perplexing that under this analysis Florida actors can go anywhere and everywhere and do anything and everything and then solely be sued in Florida.  A person in Florida could go to Maine and punch somebody in the face.  Even though all the actions occurred in the state of Maine and all the evidence and witnesses are there, the lawsuit would have to be in Florida?  That does not make any sense.

Also, this would destroy the ability to contract with any Florida actor, because it basically means that all Florida actors can throw up sovereign immunity and hide behind Florida courts.  Why would the Big10 want to contract with FSU if they have to sue them in Leon County, FL and not Chicago (or wherever the Big10 HQ is)?  This is most likely why it was not raised in the FSU lawsuit itself.

The FSU lawsuit kind of says the opposite (without actually saying it).  They cite to Florida Statute 47.011, which states:

47.011 Where actions may be begun.—Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. This section shall not apply to actions against nonresidents.

The key phrase is the last sentence there, which explicitly states that it does not apply to actions against nonresidents.  This implies that actions against nonresidents can be litigated outside of Florida.  This further supports the analysis that “all courts” etc means all courts and not all Florida Courts.  

I think that the NC Court is likely to find that a NC Court can be used for litigation over a NC contract where one of the entities is located in NC and runs the business from NC.  

Fails To Plead The FSU Board Signed The GOR

Although the sovereign immunity argument is bizarre, this may be the most bizarre argument FSU has ever put forward.  This portion argues that the FSU Board (and not the FSU President) is the only entity that has the statutory authority to contract on behalf of FSU.

This indicates that the contracts executed by the FSU President are/could be void because the FSU Board never signed them and/or approved them.  This is not brought up in the FSU lawsuit, potentially due to how unbelievably fucking stupid it is.  If it wasn’t unbelievably fucking stupid, they would have brought it up because it would be a way out.  If the contracts are void, because nobody actually appropriately signed them, then bam you have an easy out.  

Now, it is important to understand that the contracts here have been in place since 2013 etc.  So, under this argument, these contracts have been void for 11 years.  But nobody at the highly trained FSU legal office raised this issue?  Why did FSU accept the hundreds of millions of dollars in benefits from these contracts if they were void?  Why didn’t anybody on the Board seek to approve these contracts since they benefitted FSU so much?  Under this argument, everybody at FSU is fucking stupider than stupid and went 11 years without realizing nothing truly ever existed.  While collecting a king’s ransom.  

This is also stupid because Paragraph 6 of the 2013 GOR states that each Member Institution confirms that “such Member Institution...has the right, power, and capacity to execute, deliver, and perform this Agreement and to discharge the duties set forth herein.”  This language specifically notes that FSU confirms to the ACC that they are able to execute the agreement.  So, now FSU tries to argue that Eric J. Barron, the FSU President who signed it on April 19, 2013 never had the ability to execute the document?  That would be a direct breach of the agreement itself!  

Like, there are some arguments that could make sense here.  But adding in this sovereign immunity and Board never approved the contracts arguments are so dumb that they lose credibility with any judge.  Especially since they were never actually raised in the FL lawsuit.  

There is so much going on here, we’ve decided to split this up into 2 parts.  Please be on the look out for part 2 soon!