Guest Post: The ACC's Sur-Reply

And this was written BEFORE Clemson filed a copycat suit of their own!

Ed Note: With Clemson trying to steal from FSU’s playbook, will Write For California have to send Twist to Pickens County, South Carolina? As always, here’s all of Twist’s recent posts if you want to start from the beginning:

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
Part 9: Florida State’s Motion to Dismiss, Part 1
Part 10: Florida State’s Motion to Dismiss, Part 2
Part 11: ACC Opposition Motion
Part 12: FSU reply to ACC Opposition

More and more filings keep coming!  We discussed the Motion, the Opposition, and the Reply, now we have a Sur-reply.  In CA, a sur-reply is not often filed.  In NC, it may be more likely to be filed.  I am not sure.  In this instance, one was filed.  A sur-reply is when the opposing party wants to get the last word.  

So, let’s go through this and see what they say.  The major issue that they focus on is whether they had standing to file the initial complaint in NC.  This is important, because Florida is a “first to file” state.  So, it can be a race to the Courthouse and FSU lost that race.  FSU could be screwed if the ACC lawsuit in NC is deemed first filer status, because they could stall their FL lawsuit.  

FSU’s main focus is proving that the ACC lacked the ability to file the NC lawsuit, because in that case it would be the FL lawsuit that was first filed.  That is what we discussed in the last post about the Reply.  

One of the main arguments to me here by the ACC is quite funny.  It’s basically that scene in Jurassic Park where Newman shows how little interest there is in what the other guy is saying by yelling it super loud and then saying “See, nobody cares!”

Basically, FSU is arguing that the ACC failed to follow internal ACC bylaws and the ACC’s response is “nobody cares.”  The ACC argues that the Court should not get involved in the internal dealings of the bylaws.  The ACC argues that the Court should only get involved if the bylaws are breached in a fraudulent way or if the vote violates due process.  Most importantly, the ACC argues that it doesn’t have to affirmatively prove that it followed the bylaws.  It argues that the Court should just take its word for it.  

Additionally, they argue that the ACC had a meeting on January 12, 2024 where it approved the Amended Complaint.  The filing provides more details about this meeting.  It indicates that notice of this meeting was given to every single team in the ACC except for FSU.  It indicates that they did not give notice to FSU, because FSU was suing them and requesting to be deemed withdrawn from the ACC.  

Apparently, none of the other teams leaked this information to FSU.  Then, more than 3/4ths of the teams showed and waived notice.  Every team that appeared voted for the lawsuit.  There are 15 teams.  That requires 12 teams to show up for the 3/4ths vote to waive notice to FSU.  Without FSU, there are 14 teams (math alert!).  If more than 3/4ths of the teams showed up and waived notice and the maximum amount of available teams that could waive notice is 14, then at least 13 teams waived notice.  MATH ALERT!!!!  

That means if my math is correct (and it probably isn’t!), no more than 1 other ACC team supports FSU, if any.  If all 14 other teams supported FSU, the ACC probably would have written that all other ACC teams showed up to waive notice for the meeting.  They did not, so it logically follows that 14 teams received notice of the meeting.  1 team did not attend the meeting, because what team would refuse to vote to waive notice but then vote against FSU otherwise.  The other 13 voted against the lawsuit.  Curious what that other potential team is.  UNC?  Clemson?  Miami? (ed. note: this was written before Clemson sued, so lol it’s Clemson)

The upshot of this meeting is that it approved the Amended Complaint.  The ACC argues that this accomplished two goals:

The first goal is that it approves both the Amended Complaint and the initial Complaint.  This is a major issue, because if true, it basically obliterates FSU’s key argument.  There are several pages worth of legal analysis indicating that ACC’s position is correct.  They discuss NC case law, case law from other states, and even reference FL case law.  They say that across all these states (including NC and FL), the law is the same.  Even if you failed to follow your bylaws in approving an initial complaint, approving an Amended Complaint can cause a previous lawsuit to be valid.  

“Material” Litigation

The second goal is creating a delineation between the claims in the initial complaint and the Amended Complaint.  The ACC is trying to argue that the initial complaint was not “material” and did not require a vote, but they concede the Amended Complaint was material.  Why does this matter?

This matters, because if the ACC can prove that the initial complaint was not “material” litigation, then no vote was needed.  To you and me, it may certainly seem material (aka important) so what does this mean that the ACC say it isn’t?  They look to the language of the bylaws.  There is nothing specifically defining materiality for the lawsuit itself.

However, there is a definition of material for “material media rights agreement.”  Materiality is “a concrete revenue impact” or a determination from the Commissioner.  The Sur-reply argued that concrete revenue impact is an annual value of more than 5% of the Conference’s gross revenues.  They argue that the initial Complaint only requested to confirm the status quo (i.e. the GOR is valid).  It had nothing to do with the gross revenues etc.  

Separately, the Amended Complaint argued that FSU should pay the ACC damages.  Lots and lots of damages.  This, thus, is material and can be contrasted with the initial complaint.  

They also do something that kinda cracked me up.  One FSU filing had a back and forth in legal letters between FSU and ACC.  It is super awkward to read.  In one, FSU tries to say that even though they sued the ACC to get out, nothing has changed and FSU remains “an active and vibrant member” of the ACC.  The ACC uses some legal judo here to argue that FSU is saying that nothing has changed.  Thus, the initial Complaint is not material, because, as FSU states, the status quo has been maintained.  

They also have a declaration from the ACC Commissioner stating that this lawsuit is not a material lawsuit.  That is an easy get, I would think.  He states that the ACC had to file the lawsuit to protect the ESPN media deals.  If ACC didn’t then ESPN could sue them for breach of contract.  

So, the ACC argues that, under either definition, the initial complaint was not material and no vote was needed.  We will see if the Court agrees on Friday.  

Personal Jurisdiction

There is another issue that the ACC discusses in its Sur-reply.  It is whether NC has jurisdiction over FSU.  They argue that NC does and that FSU’s other actions in this lawsuit (like opposing a Motion To Seal) mean that FSU accepted NC jurisdiction through a general appearance.  FSU had argued that the parties stipulated to protect FSU from accepting jurisdiction.  The ACC argues that FSU is misinterpreting the stipulation and nothing in the stipulation precluded FSU from making a general appearance later.  

Conclusion

Long story short, I may be wrong, but I think we are done with all the filings so far.  Hopefully, because I am getting tired of all this blogging!  It’s been a decade since I did this much.  I’m old, out of shape, and tired!  

Now we are coming to the true inflection point here on Friday.  If FSU wins on their motion, they have a chance.  If the ACC wins, FSU probably has no chance.  Even if FSU wins, the resulting appeal may slow any chance FSU has.  Let’s see how things go!