Guest Post: Florida State vs. the ACC - the ACC Strikes Back!

What does a never-ending legal battle mean? BILLABLE HOURS HOORAY!

TwistNHook is back again for Part 4 of an unknown number of posts attempting to break down the legal battle between FSU and the ACC in real time, to be hindered only by my increasing inability to post these faster than Twist can write them! Will I run out of screen shots of sad Florida State fans before the legal battle resolves? STAY TUNED!

Part 1: ACC Stability
Part 2: FSU vs. ACC Part 1
Part 3: FSU vs. ACC Part 2

Last post (which was technically two posts), we discussed the FSU v. ACC lawsuit.  But did you know that there is actually *another* lawsuit?  The ACC v. FSU lawsuit.  This was filed the day before the FSU lawsuit (more on that later).  So, I read that lawsuit and then drafted a post.  Then, the ACC filed an amended lawsuit.  So, I read *that* lawsuit and redid the post.  That is what you are reading now.  

What did the ACC add in their amended lawsuit?  Well, when they filed their initial lawsuit, it was before the FSU Board Of Trustees filed their lawsuit.  So, the ACC legal team did not have the FSU lawsuit when they drafted theirs.  The amended lawsuit responds to many of the issues raised in the FSU lawsuit, such as release of confidential documents etc.  The initial lawsuit only had 2 causes of action (i.e. justifications for the lawsuit).  The amended lawsuit has 6.  One of those causes of action explicitly requests that FSU no longer be able to conduct ACC business.  So, the amended lawsuit has a lot more teeth.  Let’s get into it!

VENUE

The first and potentially most important part of this lawsuit is that it was filed in Mecklenburg County in North Carolina.  For those who are not knowledgeable about North Carolina counties, Mecklenburg County is Charlotte’s County.  While FSU filed their lawsuit in their home county of Leon County, Florida, the ACC filed its lawsuit in its home county in NC.  

This immediately sets up a dispute over venue.  Should these lawsuits be heard in FL or NC?  What is funny here is that the ACC filed their lawsuit in NC the day before the FL lawsuit but didn’t say anything to anybody about it until after FSU filed their lawsuit.  They were not sure what FSU was about to do, but wanted to have the lawsuit in their back pocket just in case.  

Once FSU filed, the ACC revealed its lawsuit to the world.  Curious what would have happened if FSU didn’t file.  Would they have just quietly dismissed the lawsuit and said nothing?  So, why did ACC ambush FSU with its legal filing.  

I view this as some litigation gamesmanship.  In the dispute over venue, the ACC can say that they filed first.  In the dispute over venue, the ACC can say that there is already a pending matter in NC.  If I were the ACC, I would next move to file a motion in Leon County to transfer the FL matter to NC.  

I cannot write as to the likelihood of success with this motion as I am not specifically knowledgeable about the relevant law.  What I can note is a few things:

1. The ACC 100% wanted to file first to maximize likelihood of success. 

2. The ACC lawsuit seems extremely focused on proving venue from the outset.  They knew this would be a major issue and they want to make sure they are successful.  They repeatedly refer to the fact that the relevant contracts are allegedly North Carolina contracts.  They were executed last by the ACC Commissioner in North Carolina, they say, so that makes them North Carolina contracts.  
   
   They have a whole section about how many times Florida State and people working for Florida State came/come to North Carolina.  They discuss how the FSU President voted to place the ACC headquarters in Charlotte, NC.  This led to the ACC receiving a $15,000,000 tax break from NC, which trickled down eventually to FSU.  They tie this to FSU receiving tax benefits from NC and, therefore, being beholden to NC Law.  

   
   They note that FSU teams come regularly to North Carolina to compete.  They note that FSU has come to North Carolina five times for the ACC Championship (as recently as December, 2023).  They note that FSU men’s and women’s basketball both come to North Carolina for the ACC Tournament.  

3. A case has been brought to my attention that may be relevant here.  The name of the case is Banco Bilbao Vizcata S.A. v Naiz, SA, 615 S 2d 233.  This is a Florida case from the 90s.  It states: “The pendency of an action in a court of competent jurisdiction will abate a later action filed in a court of like jurisdiction.  Abatement is proper where the two pending actions involve the same parties and substantially the same causes of action.”

What does this mean?  Basically, if one lawsuit is filed first in a similar venue as the Florida suit, the Florida suit can be stopped.  In that case, it was a Florida case and a case in Spain.  The Spanish case was first and the lawyers there were able to stop the Florida case from proceeding.  That could be relevant here, because the ACC suit was filed first.

The ACC is basically arguing here as many connections between Florida State and North Carolina as possible to maximize success arguing a motion to transfer venue.  They even cite to the same Florida Statute that FSU cites to in their lawsuit.  This Florida State states that Florida State can “sue and be sued...in all courts of law or equity.”  We will see how this plays out, but the lawsuit ambush coupled with the large section on venue leads me to believe the ACC will be successful transferring venue up to North Carolina.  

Another thing that is important to note here is that they have a brief portion in this lawsuit about how FSU cannot argue sovereign immunity regarding the Grant Of Rights.  I presume this is because they expected Florida State might argue that they can get out of the GOR due to sovereign immunity (ie laws don’t apply to them).  As I noted in my previous posts on this topic, FSU did not argue that.  FSU did not argue that, mostly due to how unbelievably stupid an argument it is.  However, the ACC did not know what the FSU lawsuit looked like so they wanted to cover everything.

STATEMENT OF FACTS

Next, ACC provides its statement of facts.  The FSU statements of facts was very one sided and cartoonish.  This statement of facts is more straight ahead of basic, in my view.  That is important, because it builds trust with a Judge.  They go through all of the relevant contracts (GOR, ACC Bylaws, ACC Media Deals).  A few key parts of this statement of facts:

1. They emphasize the success that the ACC has had.  FSU argues that ACC has failed to maximize competitive opportunities for FSU and other ACC schools.  So, the ACC goes through some of the success that ACC teams have had.  They also have a section on all the success that FSU itself has had since 2013 (football natty, softball natty etc.)  

2. The media deals are apparently trade secrets, so everything is redacted.  The ACC explicitly notes that they extended the GOR, in part, to create conference stability.  They didn’t want to have trouble collapsing (similar to what ended up happening with the Pac-12).  

3. They have the receipts regarding Florida State signing the relevant contracts here.  This includes an explicit quote from a member of the FSU Board Of Trustees (the entity suing the ACC right now).  This quote is “I was in concert with President Barron that this was the best thing that could happen...  It ensures that we don’t lose any members.  Nobody can afford to leave now.” 

   
   This quote is used to show that FSU knew when it signed these contracts, it would be tough to leave.  FSU knew the purpose of these contracts was to make the withdrawal penalty exorbitant, so how can they complain now?

4. FSU complained that the ACC lied to them.  The alleged lie was that ESPN demanded the ACC teams extend the GOR to get the 2016 ACC-ESPN media deal.  FSU states that that never occurred.  The ACC explicitly states that ESPN required this, so they are doubling down on this statement.  

5. The statement of facts has a whole section about warranties (ie promises) that the ACC made in entering into the media deals.  However, it redacts most of this, so I am not entirely sure what they are trying to say.  They redact the sums of money that have been paid to FSU. 

6. They reference something that FSU completely omits from their statement of facts.  The ACC suit notes that FSU demanded unequal payments based on success and that the ACC agreed to it.  They even have a quote from the FSU AD about how happy he is about the unequal payments and how they are “thrilled about being in this league and we want to stay in it.”  These quotes are from a news article on May 17, 2023, so just a few months ago.  

7. In the amended lawsuit, the ACC puts in an explicit section about the Withdrawal Payment that was not in the initial lawsuit.  It explicitly discusses that the ACC’s math indicated a team leaving could lead to over $200,000,000 worth of damage to the ACC.  This section explicitly discusses that the massive increase of the withdrawal payment was designed to imprison a team in the ACC, no matter how unhappy they may be, to avoid losses caused to the Conference by any withdrawal.  

8. The FSU lawsuit spends a lot of time complaining about the 2016 contracts (i.e. the Amended Grant Of Rights and the ESPN Media deals).  The FSU lawsuit makes it sound like the ACC lied to FSU and bullied poor, little FSU into signing the Amended Grant Of Rights (which functionally increased the withdrawal penalty by like 300 mil).  The amended lawsuit has specific information on FSU representatives being involved in the discussions on these contracts.  FSU representatives were present at discussions with ESPN employee(s) and then ratified everything.  The amended lawsuit makes it sound as if FSU was involved every step of the way.  

9. The amended lawsuit discusses the December 22, 2023 FSU Board Of Trustees meeting where they authorized the filing of their lawsuit.  The ACC lawsuit makes it sound like this was not done in appropriate observance of the FSU Board Of Trustees Operating Procedures.  This is probably not a major issue, but the ACC wants to throw everything in.

10. The amended lawsuit discusses that FSU misrepresented basic facts during this 12.22.23 meeting.  For example, FSU claims that it never had a copy of the GOR and Amended GOR.  The amended lawsuit indicates that FSU does have such copies (which would explain how they attached them to their lawsuit).  

11. The amended lawsuit also notes that FSU released confidential information from the ESPN media deals and GOR/Amended GOR.  One thing to note is that in paragraph 172, the amended lawsuit alleges that on December 22, 2023 itself, ESPN notified FSU that it had disclosed confidential information.  This is important, because if FSU tries to leave the ACC and go to the Big10, they are going from an ESPN conference to a Fox conference.  Upsetting ESPN would make it more difficult to do this, because ESPN would be more likely to sue/fight.  

This is how the ACC lawsuit sets the stage for their requests/causes of actions.  They basically make FSU sound like a whiny child who is throwing a temper tantrum.  They make it sound like FSU signed a bunch of contracts at a time when it worked better for them, but are unhappy with it now.  To FSU, they ACC says “WELL, THAT’S TOO DAMN BAD!”  In part 2, we will discuss the specific causes of action that the ACC requests.