Wag back in the dark ages of college conferences, (remember Southwest conference?) FSU was looking to join a bigger, badder outfit. I don’t recall any details other than ACC was their preference due to weaker teams and FSU’s ability to dominate in football.
So they were the big dog, along with Miami at some point. They got gobs of wins under Bobby Bowden and some national notice.
Now they whine. All their wins vs Northwest South School of Cosmetology don’t really mean so much.
Anyone have a better recollection of those times? Give us some history, please.
Welp, we are certainly jostled from our comfort zone and amidst a tempest.
I think FSU does make a valid argument that the conference’s competitive level rendered an undefeated season not enough for the CFP committee, which is badly flawed, by itself, but regardless, seems to have chosen wisely, if in only in terms of competitive edge, by passing over FSU. Granted the FSU’s roster was decimated by transfers and holdouts, I doubt its full roster could have done much better against Georgia.
FSU's chances were killed by their QB being injured, not the conference schedule. If anything the schedule helped their argument by allowing them to keep winning despite the injury.
Twist makes a good point that the selection committees have been generally kind to Clemson/FSU. I would add this year had a particularly strong crop of contenders. It is probably something of an outlier year in how many programs had a very strong case. FSU probably makes it every other time. Maybe even UGA too as a 1-loss SEC team, coming off consecutive championships.
How much would you say does the matter of “football prowess” I.e. win/loss record and recency bias play an obfuscating role in media coverage (both social- and mainstream-) of these matters? Can a coherent non-legal conversation even be had without considering “football prowess” and do the powers that be in these matters instead look at other numbers like revenue, media metrics, attendance, etc. when looking at just the facts that would matter in a legal dispute such as this?
How many ways are there to value a football program beyond win/loss numbers and how much do they matter when it comes to conference membership and pie cutting?
The very idea that value (whether based on one measure or the other) is a basis to nullify contractual obligations is itself novel. In general, the fact that you no longer think your contracts are advantageous to you, or that you think you could do better if you were allowed to sign some different contract with someone else, is not a legal basis for nullifying contracts you voluntarily agreed to in the past.
So it doesn't really matter if this is framed as "this contract doesn't reflect our value in terms of wins/losses" or "this contract doesn't reflect our value as a media product." Neither presents a cognizable legal claim.
I think the crux will be a matter of "unconscionability" (a term I just learned this minute), which correlates to the "wilting flower" analogy made by our esteemed WFC contributor.
"unconscionability: A defense against the enforcement of a contract or portion of a contract. If a contract is unfair or oppressive to one party in a way that suggests abuses during its formation, a court may find it unconscionable and refuse to enforce it. A contract is most likely to be found unconscionable if both unfair bargaining and unfair substantive terms are shown. An absence of meaningful choice by the disadvantaged party is often used to prove unfair bargaining."
Cal fans: Help me understand something. I understand FSU wanting out of the ACC because they aren't making SEC or Big-10 money and they desperately want into one of those conferences (the SEC probably makes the most sense) for the money and likely invites to the college football playoff starting this year. However, have either of those conferences expressed any interest in having them join? It seems as if FSU is taking a big risk trying to get out of the ACC if nothing is lined up. Thoughts?
FSU is a premier team in a premier market and one of the SEC / B1G would take them. I don't have inside info but they wouldn't really need a committed invite in advance to know they'd get one.
Rajiv: You are probably right BUT it still seems like a big gamble. Neither the Big-10 or the SEC are making any noise about further expansion anytime soon and let's not forget that the two teams that did get in at the last minute (Washington and Oregon) had to come in at half shares. I guess that I am looking at it from the standpoint of leverage and I'm not sure that FSU really has any, especially if they don't have a conference to call home.
My reading on this is that FSU is spending money on this lawsuit expecting it to fail, but that maybe they get some small wins with the conference for their tantrum and, most importantly, gain some PR cover with their aggrieved fans and donors. The secrecy around the GOR is indeed "bizarre." I wonder if that will be allowed to hold after this legal effort. And it does make you ask why they need to be so secretive with its contents, which doesn't really help the perception of the conference or its aims. I'm shocked that the legal teams for each institution would sign a contract they don't have access to, but they did. And that's the crux of this, FSU and its conference partners signed off on all of this every step of the way.
I think you're probably right about the inspiration for this lawsuit. But it's hard to overstate how unwise this is.
First, it's never a good idea to leap into litigation for emotional reasons.
Second, it's never a good idea to file a lawsuit you know has no good faith basis in law or fact.
Third (and this might be the most important), if you know the most likely outcome is that you will be forced to consummate the very business transactions you are trying to get out of, it is incredibly stupid to gratuitously insult and provoke your partners in those transactions. It means you are, with no immediate benefit, needlessly burning bridges that you are very likely to need in the future.
I feel like they are using a BS lawsuit as a PR stunt but that effort in my mind is way overshadowed by the 66-3 humiliation they suffered at the hands of Georgia, which totally justifies the CFP decision. They also seem ignorant of the fact that this is the last year of the 4 team CFP; it will expand to 8 next year. So a team that runs the table in a P4 conference will never be left out again.
I think they lose to UGA in even the best of circumstances, but they did have massive player attrition via the portal, etc. going into that game. And you can't underestimate the emotional component of getting jumped by the selection committee. I think back to that Texas Tech bowl game after we got jumped by Texas in '05. The team's heart just wasn't in it.
True but didn’t Georgia suffer the same disappointment? Totally different than us playing an upstart T Tech. Also 66-3 is the score of a game against a bad FCS, just an out and out slaughter for the ages.
Yes, but the difference being that UGA lost on the field. FSU lost for reasons mostly beyond their control. Feels different than just getting beat. I liked nothing more than seeing FSU get slaughtered, but can't help but think back to how flat we looked against TT when handed similar cards.
Seems to me if the bookie odds go down because a team loses a key player, that decline should also be reflected in that team being the choice of arms length judges for which team plays (in a perfect world) in deciding whether the injured team should or should not be selected in competing in a tournament. It's a fair vehicle to making the choice of who gets into a tournament. The same reduction in the likelihood of being selected to play in a tournament happpens all of the time, but not as clearly demonstrated as happened in this case.
I'm now in the process of writing another segment of my suggestion of reconstructing the Pac 12. The main gist of that plan that the Pac 12 should realign with part of the Mountain West and include UNLV, San Diego St, and Hawaii, along with Boise St. and Fresno St, plus OSU and Wash St. so that Cal could play at UNLV, San Diego St., and Hawaii every other year, very fun place for Cal grads, undergrads, and even prospective Cal players to visit (some of the best tourist spots in the country) every other year (i.e. home and away. I fondly recall my trip to Austin almost a decade ago to watch Cal squeek out a win over Texas, plus my adventures in Austin, including going to four BBQ joints in one day and spending time in the Texas foothills going wine tastsing (pretty good, but not nearly as good as in California and Oregon).
2) "If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither on your side, pound the table."
FSU is basically doing the 3rd option since neither the facts nor the law seem to be on their side. But presumably they will be able to use the lawsuit to rile up their fans and donors in support much like a certain former US president who finds himself in perpetual legal jeopardy. Also probably using this to pressure ACC with internal politics to get appeasement (like getting an oversized share of Cal, Furd, and SMU's media money). They're the U$C of the ACC.
But everything I've read indicates that FSU will be in the ACC until it decides to buy itself out. Big 10 deal runs through 2030 and SEC runs through 2034. I could see them buying out on the SEC timeline.
"The rights buyback is the sum of money that the ACC pays to FSU per years remaining on the GOR. . . . If they leave, they have to pay the value of the rights back."
As I've said before, I don't see the basis for this widely repeated claim about having to pay the value of the rights back. It seems to be the consensus—FSU even says it's the case in their complaint—but why?
It's not in the GOR (at least not the publicly available version); that doc doesn't state dollar values for anything, provisions for buying back rights, or really any terms for breach.
The liquidated damages clause of the ACC Constitution (1.4.5) is the only contractual language that's directly on point about terms for breach, and that's the clause that says FSU pays 3x the ACC operating budget in order to leave. It doesn't say anything about paying back media rights, does it?
The key issue is this: the ACC Constitution allows for FSU to leave, for a price. The GoR *doesn't* have any terms that allow for terminating or reversing the grant of rights. So theoretically, FSU could leave the ACC but still be bound by the fact that it granted its IP/media/broadcast to the ACC, which sold them to ESPN.
That would be super weird! But sometimes things are weird. 🤷🏽♂️ It isn't obvious to me that the necessary resolution to this weirdness is FSU paying TO the ACC the amount FSU would have RECEIVED had they stayed. And unless it's spelled out in one of the contracts in a way that I missed, it's objectively not an "liquidated damages" amount—LDs are, by definition, spelled out in advance. This rights-buyback thing wasn't spelled out in advance.
A common sense thing would be to say FSU is only bound by the GOR to the ACC to the extent it's in the ACC, since the GOR is about the media rights of conference teams and being able to sell ACC conference teams' media rights to ESPN. But if of course contracts don't have to be common sense. The GOR explicitly says the rights transfer applies "regardless of whether such member institution remains a member of the conference during the entirety of the term.". You could even imagine a world in which FSU gets to leave the ACC, but the ACC negotiates selling FSU's media rights, at a markup, to ESPN or Fox. Extra weird. Probably depends on the exact language in the ACC-ESPN contract and the final GOR, which aren't public.
Anyway bottom line, the "rights buyback" thing is made up. It's not liquidated damages (because it wasn't spelled out in advance), and LDs are the only basis of FSU's complaint. But even in terms of actual damages, it's arbitrary and doesn't match up with any logical amount.
The $572M includes the forfeiture of rights, so they're saying that number would be their total economic loss, not all of which is direct payments to the ACC (only the first $130M or so is that, rest is forgone income).
Arguably, they could make that number bigger if they apply a reasonable estimation of their market value rather than basing it on the ACC distribution.. if we're talking about opportunity or economic costs.
RE: $572, see page 20 of their complaint, they include a table:
I agree the complaint is actually portraying total economic loss of $572MM. My point is that that's been widely misinterpreted as "FSU would have to write a check for $572,000,000," including $130MM liquidated damages and $429MM to **buy back their IP rights**. But there's no provision to buy back what was granted by the GoR.
I really appreciate the legal take from a true golden bear. Even if the case is seemingly without merit, stranger things happen in courts of law every day. Anything that contributes to the wholesale changing of the college football conference and media rights landscape I'm for. Anything that worsens the current situation I oppose.
The idiocy of the playoff argument is that, if Jordan Travis hadn't snapped his leg in half, they would have made the playoff. It wasn't just about strength of schedule, even though that was a factor and a valid one for the playoff committee to consider.
Wag back in the dark ages of college conferences, (remember Southwest conference?) FSU was looking to join a bigger, badder outfit. I don’t recall any details other than ACC was their preference due to weaker teams and FSU’s ability to dominate in football.
So they were the big dog, along with Miami at some point. They got gobs of wins under Bobby Bowden and some national notice.
Now they whine. All their wins vs Northwest South School of Cosmetology don’t really mean so much.
Anyone have a better recollection of those times? Give us some history, please.
They were independent for a long time, until the early 90s. They probably could have gotten in to the SEC then but they chose the ACC.
Them rascal Noles.
Welp, we are certainly jostled from our comfort zone and amidst a tempest.
I think FSU does make a valid argument that the conference’s competitive level rendered an undefeated season not enough for the CFP committee, which is badly flawed, by itself, but regardless, seems to have chosen wisely, if in only in terms of competitive edge, by passing over FSU. Granted the FSU’s roster was decimated by transfers and holdouts, I doubt its full roster could have done much better against Georgia.
FSU's chances were killed by their QB being injured, not the conference schedule. If anything the schedule helped their argument by allowing them to keep winning despite the injury.
Twist makes a good point that the selection committees have been generally kind to Clemson/FSU. I would add this year had a particularly strong crop of contenders. It is probably something of an outlier year in how many programs had a very strong case. FSU probably makes it every other time. Maybe even UGA too as a 1-loss SEC team, coming off consecutive championships.
They may or may not have a valid argument re:CFP committee. It’s just wholly immaterial from their claims on this joke of a lawsuit.
True ‘nuf. Moot for the suit.
"I doubt its full roster could have done much better against Georgia." Thzt's what the committee and the rest of us were thinking too!
Thanks for this. Looking forward to Part 2.
How much would you say does the matter of “football prowess” I.e. win/loss record and recency bias play an obfuscating role in media coverage (both social- and mainstream-) of these matters? Can a coherent non-legal conversation even be had without considering “football prowess” and do the powers that be in these matters instead look at other numbers like revenue, media metrics, attendance, etc. when looking at just the facts that would matter in a legal dispute such as this?
How many ways are there to value a football program beyond win/loss numbers and how much do they matter when it comes to conference membership and pie cutting?
The very idea that value (whether based on one measure or the other) is a basis to nullify contractual obligations is itself novel. In general, the fact that you no longer think your contracts are advantageous to you, or that you think you could do better if you were allowed to sign some different contract with someone else, is not a legal basis for nullifying contracts you voluntarily agreed to in the past.
So it doesn't really matter if this is framed as "this contract doesn't reflect our value in terms of wins/losses" or "this contract doesn't reflect our value as a media product." Neither presents a cognizable legal claim.
I think the crux will be a matter of "unconscionability" (a term I just learned this minute), which correlates to the "wilting flower" analogy made by our esteemed WFC contributor.
"unconscionability: A defense against the enforcement of a contract or portion of a contract. If a contract is unfair or oppressive to one party in a way that suggests abuses during its formation, a court may find it unconscionable and refuse to enforce it. A contract is most likely to be found unconscionable if both unfair bargaining and unfair substantive terms are shown. An absence of meaningful choice by the disadvantaged party is often used to prove unfair bargaining."
- https://www.law.cornell.edu/wex/unconscionability
Good morning!
Thanks for your take. If this gets to court next year at this time maybe FSU will look more like TCU than Alabama.
Cal fans: Help me understand something. I understand FSU wanting out of the ACC because they aren't making SEC or Big-10 money and they desperately want into one of those conferences (the SEC probably makes the most sense) for the money and likely invites to the college football playoff starting this year. However, have either of those conferences expressed any interest in having them join? It seems as if FSU is taking a big risk trying to get out of the ACC if nothing is lined up. Thoughts?
FSU is a premier team in a premier market and one of the SEC / B1G would take them. I don't have inside info but they wouldn't really need a committed invite in advance to know they'd get one.
Rajiv: You are probably right BUT it still seems like a big gamble. Neither the Big-10 or the SEC are making any noise about further expansion anytime soon and let's not forget that the two teams that did get in at the last minute (Washington and Oregon) had to come in at half shares. I guess that I am looking at it from the standpoint of leverage and I'm not sure that FSU really has any, especially if they don't have a conference to call home.
My reading on this is that FSU is spending money on this lawsuit expecting it to fail, but that maybe they get some small wins with the conference for their tantrum and, most importantly, gain some PR cover with their aggrieved fans and donors. The secrecy around the GOR is indeed "bizarre." I wonder if that will be allowed to hold after this legal effort. And it does make you ask why they need to be so secretive with its contents, which doesn't really help the perception of the conference or its aims. I'm shocked that the legal teams for each institution would sign a contract they don't have access to, but they did. And that's the crux of this, FSU and its conference partners signed off on all of this every step of the way.
I think you're probably right about the inspiration for this lawsuit. But it's hard to overstate how unwise this is.
First, it's never a good idea to leap into litigation for emotional reasons.
Second, it's never a good idea to file a lawsuit you know has no good faith basis in law or fact.
Third (and this might be the most important), if you know the most likely outcome is that you will be forced to consummate the very business transactions you are trying to get out of, it is incredibly stupid to gratuitously insult and provoke your partners in those transactions. It means you are, with no immediate benefit, needlessly burning bridges that you are very likely to need in the future.
I agree wholeheartedly with all of those points.
a
Even though they're expecting it to fail, could they be indirectly asking the ACC to lower the buyout?
Yes, and/or to force some recommendation for some other type of mediation maybe.
I feel like they are using a BS lawsuit as a PR stunt but that effort in my mind is way overshadowed by the 66-3 humiliation they suffered at the hands of Georgia, which totally justifies the CFP decision. They also seem ignorant of the fact that this is the last year of the 4 team CFP; it will expand to 8 next year. So a team that runs the table in a P4 conference will never be left out again.
I think they lose to UGA in even the best of circumstances, but they did have massive player attrition via the portal, etc. going into that game. And you can't underestimate the emotional component of getting jumped by the selection committee. I think back to that Texas Tech bowl game after we got jumped by Texas in '05. The team's heart just wasn't in it.
True but didn’t Georgia suffer the same disappointment? Totally different than us playing an upstart T Tech. Also 66-3 is the score of a game against a bad FCS, just an out and out slaughter for the ages.
Yes, but the difference being that UGA lost on the field. FSU lost for reasons mostly beyond their control. Feels different than just getting beat. I liked nothing more than seeing FSU get slaughtered, but can't help but think back to how flat we looked against TT when handed similar cards.
Actually the playoff expands to 12 next year, so they would be even safer!
Gobears49
Seems to me if the bookie odds go down because a team loses a key player, that decline should also be reflected in that team being the choice of arms length judges for which team plays (in a perfect world) in deciding whether the injured team should or should not be selected in competing in a tournament. It's a fair vehicle to making the choice of who gets into a tournament. The same reduction in the likelihood of being selected to play in a tournament happpens all of the time, but not as clearly demonstrated as happened in this case.
Gobears
https://www.youtube.com/watch?v=HZA7my9tScc
I'm now in the process of writing another segment of my suggestion of reconstructing the Pac 12. The main gist of that plan that the Pac 12 should realign with part of the Mountain West and include UNLV, San Diego St, and Hawaii, along with Boise St. and Fresno St, plus OSU and Wash St. so that Cal could play at UNLV, San Diego St., and Hawaii every other year, very fun place for Cal grads, undergrads, and even prospective Cal players to visit (some of the best tourist spots in the country) every other year (i.e. home and away. I fondly recall my trip to Austin almost a decade ago to watch Cal squeek out a win over Texas, plus my adventures in Austin, including going to four BBQ joints in one day and spending time in the Texas foothills going wine tastsing (pretty good, but not nearly as good as in California and Oregon).
a
The argument that we'll make the ACC weaker is complete BS.
Cal is 5-2-1 all time against the ACC, and is sitting on a 4-game winning streak. Stanford is 8-6 all time, and is sitting on a 6-game winning streak.
California 24, North Carolina 17, 2018-09-01T20:00:00.000Z
California 35, North Carolina 30, 2017-09-02T16:20:00.000Z
California 52, Maryland 13, 2009-09-06T02:00:00.000Z
California 24, Miami 17, 2008-12-28T01:00:00.000Z
California 27, Maryland 35, 2008-09-13T16:00:00.000Z
California 37, Clemson 13, 1992-01-01T00:00:00.000Z
California 22, Duke 22, 1963-10-12T00:00:00.000Z
California 7, Duke 21, 1962-10-13T00:00:00.000Z
Stanford 14, Pittsburgh 13, 2018-12-31T19:00:00.000Z
Stanford 25, North Carolina 23, 2016-12-30T19:00:00.000Z
Stanford 50, Duke 13, 2012-09-09T02:30:00.000Z
Stanford 44, Duke 14, 2011-09-10T19:30:00.000Z
Stanford 40, Virginia Tech 12, 2011-01-04T01:30:00.000Z
Stanford 68, Wake Forest 24, 2010-09-19T03:15:00.000Z
Stanford 17, Wake Forest 24, 2009-09-12T16:00:00.000Z
Stanford 14, Georgia Tech 24, 2001-12-27T21:00:00.000Z
Stanford 37, North Carolina 34, 1998-09-19T00:00:00.000Z
Stanford 17, North Carolina 28, 1997-09-13T00:00:00.000Z
Stanford 17, Georgia Tech 18, 1991-12-25T00:00:00.000Z
Stanford 21, Clemson 27, 1986-12-27T00:00:00.000Z
Stanford 10, Duke 6, 1972-09-23T00:00:00.000Z
Stanford 3, Duke 9, 1971-10-02T00:00:00.000Z
1) PUNCH TWIST
2) "If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither on your side, pound the table."
FSU is basically doing the 3rd option since neither the facts nor the law seem to be on their side. But presumably they will be able to use the lawsuit to rile up their fans and donors in support much like a certain former US president who finds himself in perpetual legal jeopardy. Also probably using this to pressure ACC with internal politics to get appeasement (like getting an oversized share of Cal, Furd, and SMU's media money). They're the U$C of the ACC.
But everything I've read indicates that FSU will be in the ACC until it decides to buy itself out. Big 10 deal runs through 2030 and SEC runs through 2034. I could see them buying out on the SEC timeline.
Thanks for the awesome article!
"The rights buyback is the sum of money that the ACC pays to FSU per years remaining on the GOR. . . . If they leave, they have to pay the value of the rights back."
As I've said before, I don't see the basis for this widely repeated claim about having to pay the value of the rights back. It seems to be the consensus—FSU even says it's the case in their complaint—but why?
It's not in the GOR (at least not the publicly available version); that doc doesn't state dollar values for anything, provisions for buying back rights, or really any terms for breach.
The liquidated damages clause of the ACC Constitution (1.4.5) is the only contractual language that's directly on point about terms for breach, and that's the clause that says FSU pays 3x the ACC operating budget in order to leave. It doesn't say anything about paying back media rights, does it?
The key issue is this: the ACC Constitution allows for FSU to leave, for a price. The GoR *doesn't* have any terms that allow for terminating or reversing the grant of rights. So theoretically, FSU could leave the ACC but still be bound by the fact that it granted its IP/media/broadcast to the ACC, which sold them to ESPN.
That would be super weird! But sometimes things are weird. 🤷🏽♂️ It isn't obvious to me that the necessary resolution to this weirdness is FSU paying TO the ACC the amount FSU would have RECEIVED had they stayed. And unless it's spelled out in one of the contracts in a way that I missed, it's objectively not an "liquidated damages" amount—LDs are, by definition, spelled out in advance. This rights-buyback thing wasn't spelled out in advance.
A common sense thing would be to say FSU is only bound by the GOR to the ACC to the extent it's in the ACC, since the GOR is about the media rights of conference teams and being able to sell ACC conference teams' media rights to ESPN. But if of course contracts don't have to be common sense. The GOR explicitly says the rights transfer applies "regardless of whether such member institution remains a member of the conference during the entirety of the term.". You could even imagine a world in which FSU gets to leave the ACC, but the ACC negotiates selling FSU's media rights, at a markup, to ESPN or Fox. Extra weird. Probably depends on the exact language in the ACC-ESPN contract and the final GOR, which aren't public.
Anyway bottom line, the "rights buyback" thing is made up. It's not liquidated damages (because it wasn't spelled out in advance), and LDs are the only basis of FSU's complaint. But even in terms of actual damages, it's arbitrary and doesn't match up with any logical amount.
The $572M includes the forfeiture of rights, so they're saying that number would be their total economic loss, not all of which is direct payments to the ACC (only the first $130M or so is that, rest is forgone income).
Arguably, they could make that number bigger if they apply a reasonable estimation of their market value rather than basing it on the ACC distribution.. if we're talking about opportunity or economic costs.
RE: $572, see page 20 of their complaint, they include a table:
https://news.fsu.edu/wp-content/uploads/2023/12/12.22.2023-Final-Complaint-4.pdf
I agree the complaint is actually portraying total economic loss of $572MM. My point is that that's been widely misinterpreted as "FSU would have to write a check for $572,000,000," including $130MM liquidated damages and $429MM to **buy back their IP rights**. But there's no provision to buy back what was granted by the GoR.
I really appreciate the legal take from a true golden bear. Even if the case is seemingly without merit, stranger things happen in courts of law every day. Anything that contributes to the wholesale changing of the college football conference and media rights landscape I'm for. Anything that worsens the current situation I oppose.
The idiocy of the playoff argument is that, if Jordan Travis hadn't snapped his leg in half, they would have made the playoff. It wasn't just about strength of schedule, even though that was a factor and a valid one for the playoff committee to consider.