Guest Post: FSU's Amended Complaint

Florida State's efforts in Florida court aren't going well, can a new filing turn things around?

Ed note: Last week TwistNHook provided an update on the FSU/ACC battle in North Carolina court, so naturally this week is an update on their battle in Florida court. Meanwhile, if you’d like to catch up, here’s a link to all of his initial analysis of FSU vs. ACC. Any and all complaints related to his use of the term ‘Cal Berkeley’ can be directed to his Twitter account and not towards the proprietors of this fine Cal fan website!

Hello, my friends!  Hope you are doing well.  There is a lot happening in Florida right now and we need to dig into that.  We’ve been so focused on South Carolina that we’ve been a bit delayed on Florida.  Let’s check in on Florida and see what next steps are.

Dismissed!

Last we saw Florida proceedings, the Judge had dismissed Florida’s State First Amended Complaint.  The Florida Judge indicated that the 1AC failed to show that Florida had jurisdiction over the ACC.  This was a surprising result for me, because of FSU’s fancy pants lawyers.  I thought that the FL judge would stay the FL matter, but not dismiss it.  He did the exact opposite.  He didn’t stay the matter but he did dismiss it.  

This gave FSU an opportunity to file a 2nd Amended Complaint.  In this 2nd Amended Complaint, FSU would have to allege sufficient facts/law to show that FL has jurisdiction over the ACC.  If they do not, then their complaint could be dismissed for good.  That would be catastrophically bad for FSU’s attempts to leave the ACC.  It would be most likely fatal.  So, this 2AC is extremely important for FSU.  

Delay, who is it good for?

Before we delve into this, I will note that FSU’s focus is getting out of the ACC as soon as possible for the cheapest amount of exit money possible.  For a team to get out of the ACC, they have to give notice by 8.15 to be out for the next season.  For example, if a team gives notice of withdrawal by 8.15.24, they would be out for the 2025 season.  They would also have to pay 500+ million in exit costs.  

FSU filed their lawsuit in late December 2023 and requested that the Court state that they gave notice of withdrawal as of 8.14.23.  This would cause them to be out for the 2024 season.  At the current pace, they will not make it to any substantive argument by August 15, 2024.  There is a chance this overall is still ongoing as of August 15, 2025.  Delay benefits the ACC and nothing is going well for FSU to date.  

FSU Board

Let’s dig in.  First thing first is that FSU starts whole 2AC noting that the plaintiff is the FSU Board, acting for and on behalf of its steward, FSU.  In multiple other filings, FSU tries to make a delineation between FSU and the FSU Board.  For example, in one of their appellate filings, FSU argued that even if FSU itself has “sufficient connections” to North Carolina, the FSU Board does not.  Do any of the board members vacation in Asheville???????  Either way, any attempt to delineate between FSU and the FSU Board seems to be undercut by the first line of the 2AC. 

The 2AC opens up with my favorite part of lawyering, telling us that the other side totally agrees with you!  You can trust FSU to tell us what ACC wants.  The 2AC starts with saying that there are only 2 key issues:  whether FSU’s rights are necessary to perform FSU’s obligations under the ESPN agreement and whether the exit cost is a withdrawal penalty.  FSU states that “fortunately, the ACC concedes both.”  You may be surprised to learn that a) those aren’t really the solely two issues in the case (or even in the 2AC) and b) the ACC concedes neither.  

In lawyering, you are trying to sell the Court on something.  It is not uncommon that a party will try to explain the other side’s arguments to the Court.  The worse your explanation of the other side’s positions will be, generally the less credibility you build with the Court.  In this instance, FSU misstates the issues raised in their complaint and then says that the ACC totally rolled over.  Not think there is a lot of credibility built there.  

What is interesting to me is that FSU has taken some of the arguments from Clemson and added them here.  The “no rights outside of what is necessary to perform the ESPN contracts” is straight from Clemson.  It was not in the previous iterations of this complaint.  What is weird is that Clemson is trying to differentiate themselves from FSU.  They are desperately arguing that they are totally different from FSU in part because FSU is doing so poorly to date.  They are arguing that FSU is trying to invalidate the GOR and GOR withdrawal penalty, but they, Clemson, are not.  So, FSU stealing Clemson’s “We’re totally different from FSU!” arguments is a bit weird.  Will be weird to see how they harmonize them with their original arguments of “THE ACC IS TERRIBLE AND THIS CONTRACT IS INVALID.”  

As for the “ACC conceded everything” party, FSU takes 2 comments from the ACC president (in 2022) and from an ACC lawyer (in 2024) and says that that’s all the Court needs.  It’s just two random comments, I do not think that they are super relevant here.  

Takings

Another thing that is important to understand here is that FSU is reframing this as a “North Carolina Taking.”  They use that as a header on page 3 and refer to the NC case as the “North Carolina Taking Case” in bold every time.  Putting aside the needless cartoonishness of this phraseology, FSU is doing this because the FL Judge made comments about how this seems like a taking case.  Playing to your direct audience (i.e. the FL Judge) is a smart strategy.

However, I am not seeing how this is a taking case.  A taking, to my knowledge, is when the government seizes private property (like eminent domain).  This is a private company (ACC) fighting with an extension of FL (FSU) over a contract.  FSU is trying to argue that the ACC is “taking” all of FSU’s IP rights in its home broadcasts until 2036.  FSU gave its rights to the ACC in a series of contracts and now there is a dispute on the scope and nature of that “giving.”  So, I am not seeing how this is a taking.  

Jurisdiction

Next, FSU gets into their jurisdiction argument.  This is important, because if they mess it up again, then FSU’s attempt to leave the ACC will be over before it really even began.  The FSU argues a few different things in the “kitchen sink” approach.  Certainly, one or more of these arguments will get FSU in the door.  The first item that they argue is that the ACC has two different members as residents in FL, FSU and Miami. They argue that this is sufficient for jurisdiction.  I thought that that was the argument for federal jurisdiction, not state jurisdiction.  I could be wrong, certainly.  This is the easiest argument for FSU, because nothing further has to be argued.  

The next argument they have is that even if the Court does not find the ACC is a resident of FL, the Court can find jurisdiction through the “long arm statute.”  This is basically a way to forcing a non-resident into Court.  Here, FSU argues that the ACC does business in the FL.  It broadcasts many games from FL, provides funds to its FL members, advertises to Floridians, etc. etc.  I am summarizing this, but FSU basically goes through every way its lawyers can think of that the ACC does any business in any way geographically in the state of FL.  

FSU’s next argument is that even if the Court finds the ACC is not a resident and does not do substantial business in FL, the ACC also committed tortious acts to a FL residence causing injury to person or property within the state.  I have been critical of FSU’s lawyering to date, but they are finally constructing proper legal arguments, in my view.  I lack the substantive knowledge of FL Jurisdictional law to know whether these will be successful arguments.  

However, they are using the standard “even if” structure for this argument.  ACC is resident.  Even if ACC isn’t resident, they do business here.  Even if ACC isn’t resident and doesn’t do business, the did a tort causing damage to FL peoples.  Just keep throwing arguments at the Judge.  I will say that they do not cite to a lot of tortious acts in this section, but there are allegations in other parts of the 2AC.  So, perhaps that will suffice.  

We will see if this is sufficient to avoid another Motion To Dismiss.  The Motion To Dismiss was set for June 18, 2024.  As I write this, the ACC has filed an appeal of the previously denied motion to stay the FSU case.  Then, the ACC filed a motion to stay this 2AC pending the resolution of the appeal.  So, everything may be pushed back here.  

Factual Background

Next, FSU goes into its Factual Background.  They maintain the same “THE ACC IS TERRIBLE AND TOOK ADVANTAGE OF POOR OLD FSU” that they had before.  They talk about how the previous commissioner is a two timing son of a bitch who two timed FSU, that son of a bitch!  They talk about how the ACC Network is terrible and how NC State’s AD probably kicked FSU’s AD’s dog or something.  They continue to denigrate the amazing school of Cal Berkeley, who has done nothing to FSU.  I am sure we can all agree that the FSU lawyers should stop discussing Cal Berkeley and just leave Cal Berkeley alone!!!!  

One thing that cracked me up is their header “The ACC Loses The Tier 1 Wars - To Everyone.”  As a Pac12 superfan, let me tell you, FSU, you didn’t lose the Tier 1 Wars to everyone!

They again argue that the ACC mishandled conference realignment.  *stares in Pac-12*

They reiterate that they have no confidentiality agreement with anybody.  This is because they are trying to make the ESPN contracts public.  I remain confused by this.  I think that FSU is doing this because they and their fanbase are really unhappy with how ESPN treated them with the great playoff scandal of 2023 (i.e. when FSU didn’t have a functional QB so they failed to make the 4 team playoff).  Playing to your client is not great lawyering, in my view.  Playing to their fanbase is even worse.

Antagonizing ESPN like this has caused all other functional (SORRY Pac2!) conferences to file oppositions in a related case fighting the release of any TV contracts for ESPN, Fox etc.  Not sure why FSU feels the need to fight all the TV companies (esp. Fox, which is the one FSU wants money from).  But that is their approach. 

Causes Of Action

Then, they get to their causes of action.  They have 9 now.  Let’s take them in turn:

1. Cause Of Action 1 is the Clemson argument that once FSU leaves the ACC, the ACC no longer owns any of FSU’s broadcast rights.  This is designed to delete any rights buyback costs.  Given that those can be $40 mil a year between now and 2036, that can be hundreds of millions of dollars in cost savings.  This was a good argument by Clemson and FSU has taken advantage of the amendment to add this in.

2. Cause Of Action 2 is the argument that the Withdrawal penalty is an unenforceable penalty.  Here, the ACC argues that the penalty (which consists of the rights buybacks along with the exit fee of 3x the ACC budget) is not contrived as an actual cost for FSU leaving.  Instead, it is a punitive penalty to keep people stuck in the ACC.  Here, FSU is completely correct.  I am not sure, however, if that makes it unenforceable.  FSU agreed to this penalty in a written contract reviewed by its experienced legal team.  This whole cause of action is 4 short paragraphs long.  They didn’t really put their back into this one.

3. Cause Of Action 3 is that the ACC breached its constitution and bylaws.  Here, FSU has modified its argument from before.  Before, its argument was about bad things the ACC did about the management of the ACC.  Now, it is more focused on the fact that the ACC sued FSU first.  They have a lot on how the ACC has run its business since the lawsuits were filed and how FSU was excluded from a key ACC meeting (about whether to sue FSU!).  

4. Cause Of Action 4 is that the FSU Board has sovereign immunity for any claim made by the ACC in North Carolina.  This is the first time FSU has discussed sovereign immunity in their complaints in FL.  Separately, I am confused as to why they bring it up in FL.  I am not an expert in sovereign immunity, but it is basically arguing that FSU cannot be sued in NC (or really any state outside of FL).  
   

   It strikes me that no Judge outside of the state of NC can rule on the nature of NC jurisdiction.  What I mean by this is that a FL Judge wouldn’t be able to tell a NC Judge what they can and cannot do.  FSU is welcome to raise this argument in NC all it wants (although it hasn’t gone well for them over there to date).  But in FL?  Would a FL Judge agree to allow a NC Judge to dictate the authority of a FL Judge?  

5. Cause Of Action 5 is that the ACC punishments are unreasonable restraints of trade. Here, FSU basically argues that they could get more money on the open market for their rights right now.  This is 100% true.  They, thus, argue that not being able to sell their rights due to the restrictions in the GOR is an unreasonable restraint of trade. 
   

   FSU argues that these restrictions are so onerous compared to what FSU gets in money from the ACC that it is unenforceable.  FSU argues that they should be allowed to sell their rights on the open market.  In theory, only one team individually sells its rights on the open market (Notre Dame).  Every other team (including Michigan, Alabama etc.) bundle their rights in Grant Of Rights contracts for conferences.  This generally provides value for the teams as the rights are worth more together than individually.
   

   In reality, FSU probably has a Big10 invite in its back pocket that it wants to take advantage of.  The problem is that it cannot due to the contracts it signed.  FSU signed these contracts, so it strikes me that these restrictions are reasonable restraints on trade.  The only unreasonable part is that market conditions shifted since the initial signing.  Generally, changes in market conditions are not sufficient to make the restraints on trade unreasonable.

6. Cause Of Action 6 is that the Grant Of Rights is unenforceable “For Several Other Reasons.”  This is a potpourri of random reasons, most of which are discussed in one sentence.  Again, FSU not putting their back into these.

7. Cause Of Action 7 is that the ACC breached its fiduciary duties to FSU.  I am a bit confused by this, because FSU successfully argued in NC, that FSU doesn’t have fiduciary duties to the ACC.  Does it work the other way around?  The breaches consist of “failing to maximize revenue” for the rights and filing the “North Carolina Taking Case.”

8. Cause Of Action 8 is that the Withdrawal Penalty violates Public Policy and is unconscionable.  Public Policy arguments usually means that the arguing party has run out of arguments and is just saying “This is bad for society!”  Not sure how relevant IP rights are for society.  Unconscionable means that the contract is sooooo bad, it is too harsh and we all feel bad for the victim.  Again, we had two sophisticated entities with teams of lawyers negotiating these contracts.  Not sure how they can be unconscionable.

9. Cause Of Action 9 is that there is a frustration of contractual purpose.  This section is 3 short paragraphs long.  It is conclusory.  It briefly argues that the ACC failed to create a fiscally stable enterprise, which failed FSU.  

Conclusion

What I noticed is that they do not seem to want to invalidate the GOR anymore.  They have backed off on that.  They just want to say that once they leave the ACC, the ACC no longer controls FSU’s rights.  They remove most of the references to being let out as of August 14, 2023, but they do have one more at the end.  I am not sure whether this is genuine or a C+P error.  

Has FSU argued enough to get past a Motion To Dismiss here?  The ACC filed their Motion To Dismiss (along with the appeal of the earlier Motion To Stay).  The ACC is throwing everything at FSU here.  We will see what happens with the appellate Courts and go from there.  Thanks for your readership!