However this is resolved legally, Miami comes out of this with a huge black eye, and well they should. And so should the ACC for not stepping in here to urge Miami to honor at least the spirit of the contract they signed.

(02-14-2018 09:52 PM)Wedge Wrote:  -- Arkansas State said, nope, send us a check asap or we'll sue you in state court in Arkansas

It would seem to be impossible for there to be a conflict between Arkansas State and the The U in which Arkansas State comes across as the Bad Guy and The U as the Victim ...

... but if AS goes ahead with this suit, that's the way it will be.

Seems like AS is doubling-down on dumb. They already took hits in the press five months ago when they whined about Miami canceling, and now they are going to dredge it up again?

(02-14-2018 11:36 PM)chiefsfan Wrote:  Force Majure only applies if it is practically impossible for Miami to travel to Jonesboro for the game (Since there was obviously not a hurricane in Arkansas) both sides have admitted it was very possible for Miami to make the trip. They CHOSE not to make the trip in order to allow student athletes to help their families with the storm.

If you read our letter, that's what our claim is from the beginning.

I'll defer to the lawyers we have in the house, but it would surprise me if a court were to interpret "impossible" in a strict, logical or mathematical sense. If that's the definition of the word here, then it would have little practical meaning, because it's probably the case that is "possible" to somehow play the game even if the USA were under a nuclear attack at the time. Very few things like this are literally impossible. To me, clause 14 is meant to indicate that the game can be canceled if there is a significant, unexpected emergency that makes the game being played by either team unreasonable under the circumstances.

So IMO it will come down to whether Miami's actions were 'reasonable' given the spirit of the Force Majeur clause, and I think it very likely a court will conclude that it was.

(02-14-2018 11:39 PM)Attackcoog Wrote:  

(02-14-2018 10:46 PM)msm96wolf Wrote:  I posted this question on the Sunbelt page where the was more discussion after I posted here, but where does the lawsuit get filed? The agreement was an ACC Contract which is based in NC or does it happen in Arkansas home of ASU? In addition, Miami scheduling is 1 OOC away game which is part of their scheduling philosophy which is what most ACC teams do. The agreement has to work for both teams not what works best for ASU only.

Again, I think this goes to arbitration and there will be a ~500K payout and Ark St will likely not be on any future ACC schedules or ACC Payday games.

One of the advantages a plantiff has is deciding the venue.

Not always. Sometimes these contracts specify how a dispute is to be handled, via arbitration or the location of a court. Doesn't appear that is the case here.

In any event, it's not clear if an Arkansas judgment could be enforced against Miami. I think that issue arose when the ACC sued Maryland in North Carolina. In that case, the ACC was able to get Maryland to the negotiating table because it had significant money it owed Maryland that it was holding hostage.

I'm not sure Arkansas State has anything similar on Miami. I doubt it.

(02-15-2018 11:58 AM)quo vadis Wrote:  

(02-14-2018 09:52 PM)Wedge Wrote:  -- Arkansas State said, nope, send us a check asap or we'll sue you in state court in Arkansas

It would seem to be impossible for there to be a conflict between Arkansas State and the The U in which Arkansas State comes across as the Bad Guy and The U as the Victim ...

... but if AS goes ahead with this suit, that's the way it will be.

Seems like AS is doubling-down on dumb. They already took hits in the press five months ago when they whined about Miami canceling, and now they are going to dredge it up again?

Their public comment at the time was a bad look. But, I don't think what they are doing here is dumb.

Arkansas State is thinking: Miami wants to reschedule for 2024 and then they are going to cancel and pay the buyout in 2022, so let's just make them pay the buyout now instead of waiting 4 more years to get the money.

(02-15-2018 12:23 PM)Wedge Wrote:  

(02-15-2018 11:58 AM)quo vadis Wrote:  

(02-14-2018 09:52 PM)Wedge Wrote:  -- Arkansas State said, nope, send us a check asap or we'll sue you in state court in Arkansas

It would seem to be impossible for there to be a conflict between Arkansas State and the The U in which Arkansas State comes across as the Bad Guy and The U as the Victim ...

... but if AS goes ahead with this suit, that's the way it will be.

Seems like AS is doubling-down on dumb. They already took hits in the press five months ago when they whined about Miami canceling, and now they are going to dredge it up again?

Their public comment at the time was a bad look. But, I don't think what they are doing here is dumb.

Arkansas State is thinking: Miami wants to reschedule for 2024 and then they are going to cancel and pay the buyout in 2022, so let's just make them pay the buyout now instead of waiting 4 more years to get the money.

If I'm ASU, I really don't trust Miami's word on anything. Basically, they got what now amounts to a typical FBS "buy" game that they didn't pay for.

There is a difference between invoking the *legal doctrine* of impossibility and interpreting the word "impossible" within a *contractual* force majeure clause.

The doctrine of impossibility is an excuse for nonperformance of duties under a contract. This isn't a contractual provision - it's a legal defense that excuses performance of a contract...regardless of what the contract states. Some jurisdictions interpret it as related to commercial impracticability (ie, can only be done at an excessive and unreasonable cost), but most interpret it as circumstances that make performance of the contract *literally* impossible. An example might be a contract to wash my boat, but my boat is sinks to the bottom of the lake before you had a chance to wash it.

That is not the case here. Miami *could* have made the trip...and without significant additional cost or burden. Miami cannot rely on the legal defense of impossibility - and they are not claiming to do so.

However, the fact that the force majeure clause uses the word "impossible" doesn't mean it invokes the legal defense of impossibility. Rather, it is a contractual provision that focuses on an "unforeseen catastrophe or disaster." It lists specifically two natural disasters as illustrative examples, including flood. The clause also refers to government and public authority orders. I don't know the precedent cases in either Arkansas or Florida that might affect the force majeure interpretation. But, subject to contrary precedence, it would appear to be reasonable for a judge to interpret the force majeure clause in the context of the types of unforeseen catastrophes and disasters that could significant impact the local community and travel, schedules, and access...even though the clause uses the word "impossible."

This is exactly what Miami's attorney is relying on. He focuses on statements and actions by government authorities that officially declared a State of Emergency in southern Florida. I'm not sure how the hurricane damage on Miami's campus compares to that of FAU, FIU, Florida St., UCF, or USF, but he paints a fairly compelling picture of significant damage and destruction to Miami's campus and the fact that the campus was closed for 19 days. Regardless of what the other Florida schools did the weekend of September 9, I would not be surprised at all if a judge interpreted the force majeure clause to excuse Miami from travelling to and from Jonesboro back to Miami during a major hurricane.

HOWEVER, a major weakness in Miami's letter is its interpretation of the contractual provision that states that any games not played will be rescheduled "as such exigencies may dictate or permit." It's hard to claim it reasonable to push the game back 7 or 8 YEARS (and 11 or 12 years after the original contract) when you have reasonable open dates in 2020 *AND* 2021. The original games were to be played within 1 and 3 years after the original contract.

And, I agree that Arkansas State is likely better off to make the $650K liquidated damages an issue now, rather than postponing the issue until 2024, when Miami backs out again. Because of the time value of money principle, a payment now is more valuable than the same payment in 6 years.

I believe there have been at least two other situations that have gone to the point of a lawsuit being filed. UNLV I believe filed a breach lawsuit over a schedule one time and I know Louisville and Duke went to court at one point. The Duke v Louisville case was just over a decade ago and had a provision that only required the breaching party to pay if the other party was unable to secure a replacement football game after a good faith effort. Louisville was unable to secure an FBS opponent and replaced them with Murray State, and the judge in Kentucky ruled that Murray was an adequate replacement.

(02-15-2018 01:20 PM)arkstfan Wrote:  I believe there have been at least two other situations that have gone to the point of a lawsuit being filed. UNLV I believe filed a breach lawsuit over a schedule one time and I know Louisville and Duke went to court at one point. The Duke v Louisville case was just over a decade ago and had a provision that only required the breaching party to pay if the other party was unable to secure a replacement football game after a good faith effort. Louisville was unable to secure an FBS opponent and replaced them with Murray State, and the judge in Kentucky ruled that Murray was an adequate replacement.

The Louisville-Duke case was a source of some embarrassment for Duke. Louisville said it was unable to find a replacement opponent as good as Duke, and the judge ruled basically that no opponent was worse than Duke, which was going through a 20 year period of futility second to none in the FBS. They averaged one win per season from 1990-2008.

(02-15-2018 01:18 PM)YNot Wrote:  HOWEVER, a major weakness in Miami's letter is its interpretation of the contractual provision that states that any games not played will be rescheduled "as such exigencies may dictate or permit." It's hard to claim it reasonable to push the game back 7 or 8 YEARS (and 11 or 12 years after the original contract) when you have reasonable open dates in 2020 *AND* 2021. The original games were to be played within 1 and 3 years after the original contract.

I agree that this is a possible point where AS will be seen to be correct. But, I still don't think so. The reason is, the clause doesn't state that either party has to suffer an onerous financial penalty to reschedule if the original game was canceled for a valid reason. If I understand the letters, AS is asking Miami to give up a home game in 2020 or 2021 to reschedule them. That would cost Miami a a lot of money, making it unreasonable.

Second, games are often scheduled 7 or 8 years out, that's not unusual in college football. If Miami was offering a game in 2034, that would be unreasonable, but 2024 is within the current window of when teams are scheduling games.

For those reasons, I think a judge will tell AS to take 2024 or leave it.

(02-15-2018 11:58 AM)quo vadis Wrote:  

(02-14-2018 09:52 PM)Wedge Wrote:  -- Arkansas State said, nope, send us a check asap or we'll sue you in state court in Arkansas

It would seem to be impossible for there to be a conflict between Arkansas State and the The U in which Arkansas State comes across as the Bad Guy and The U as the Victim ...

... but if AS goes ahead with this suit, that's the way it will be.

Seems like AS is doubling-down on dumb. They already took hits in the press five months ago when they whined about Miami canceling, and now they are going to dredge it up again?

The press we have gotten out of this has been mostly positive so far. Astate and the city of Jonesboro lost millions off that game. Asking for a contracted 650k seems like a simple request to recoup losses.

Now Miami press hates us, but no one cares what they think

(02-15-2018 02:11 PM)quo vadis Wrote:  

(02-15-2018 01:18 PM)YNot Wrote:  HOWEVER, a major weakness in Miami's letter is its interpretation of the contractual provision that states that any games not played will be rescheduled "as such exigencies may dictate or permit." It's hard to claim it reasonable to push the game back 7 or 8 YEARS (and 11 or 12 years after the original contract) when you have reasonable open dates in 2020 *AND* 2021. The original games were to be played within 1 and 3 years after the original contract.

I agree that this is a possible point where AS will be seen to be correct. But, I still don't think so. The reason is, the clause doesn't state that either party has to suffer an onerous financial penalty to reschedule if the original game was canceled for a valid reason. If I understand the letters, AS is asking Miami to give up a home game in 2020 or 2021 to reschedule them. That would cost Miami a a lot of money, making it unreasonable.

Second, games are often scheduled 7 or 8 years out, that's not unusual in college football. If Miami was offering a game in 2034, that would be unreasonable, but 2024 is within the current window of when teams are scheduling games.

For those reasons, I think a judge will tell AS to take 2024 or leave it.

Not really. If I read Miami's schedule correctly, even if they played AT ASU in 2020, they STILL would get 6 home games.

If you are saying they would give up a 7th home game (which is not mandatory for ANYONE), then yes, you probably would be correct.

Right now, according to the FBS schedules website, Miami is scheduled to play at Michigan St, and home vs. Temple in 2020...meaning they could play an FCS team at home and play at ASU, and still have 6 home games.

What am I missing. Miami needs to man up and play at Arkansas State.

http://www.fbschedules.com/ncaa/acc/miam...icanes.php

(02-15-2018 02:30 PM)BullsFanInTX Wrote:  

(02-15-2018 02:11 PM)quo vadis Wrote:  

(02-15-2018 01:18 PM)YNot Wrote:  HOWEVER, a major weakness in Miami's letter is its interpretation of the contractual provision that states that any games not played will be rescheduled "as such exigencies may dictate or permit." It's hard to claim it reasonable to push the game back 7 or 8 YEARS (and 11 or 12 years after the original contract) when you have reasonable open dates in 2020 *AND* 2021. The original games were to be played within 1 and 3 years after the original contract.

I agree that this is a possible point where AS will be seen to be correct. But, I still don't think so. The reason is, the clause doesn't state that either party has to suffer an onerous financial penalty to reschedule if the original game was canceled for a valid reason. If I understand the letters, AS is asking Miami to give up a home game in 2020 or 2021 to reschedule them. That would cost Miami a a lot of money, making it unreasonable.

Second, games are often scheduled 7 or 8 years out, that's not unusual in college football. If Miami was offering a game in 2034, that would be unreasonable, but 2024 is within the current window of when teams are scheduling games.

For those reasons, I think a judge will tell AS to take 2024 or leave it.

Not really. If I read Miami's schedule correctly, even if they played AT ASU in 2020, they STILL would get 6 home games.

If you are saying they would give up a 7th home game (which is not mandatory for ANYONE), then yes, you probably would be correct.

Right now, according to the FBS schedules website, Miami is scheduled to play at Michigan St, and home vs. Temple in 2020...meaning they could play an FCS team at home and play at ASU, and still have 6 home games.

What am I missing. Miami needs to man up and play at Arkansas State.

http://www.fbschedules.com/ncaa/acc/miam...icanes.php

Does Miami have an insurance policy to pay for the missed game due to the hurricanes last year. Or won't the insurance company put up the money because they "VOLUNTARILY" missed the game.

(02-15-2018 04:39 AM)arkstfan Wrote:  

(02-15-2018 03:47 AM)Stugray2 Wrote:  We'll see what the court says. Or more likely they settle for something less than the full amount and drop the suit, as lawyers will easily eat up $500K for both sides.

I doubt AState would hire outside counsel. State agencies in Arkansas rarely use employ outside counsel. The only expense would be if they want depose Miami officials or Coach Richt


Sent from my iPhone using Tapatalk

They do, Lawyers are on contract, but they have charges beyond the normal fees. Carrying out a lawsuit is one of those. They will bill for all the costs of discovery and any and all court time. Even a few weeks in court would consume a large chunk of that $500K.

They will settle.

(02-15-2018 01:18 PM)YNot Wrote:  This is exactly what Miami's attorney is relying on. He focuses on statements and actions by government authorities that officially declared a State of Emergency in southern Florida. I'm not sure how the hurricane damage on Miami's campus compares to that of FAU, FIU, Florida St., UCF, or USF, but he paints a fairly compelling picture of significant damage and destruction to Miami's campus and the fact that the campus was closed for 19 days. Regardless of what the other Florida schools did the weekend of September 9, I would not be surprised at all if a judge interpreted the force majeure clause to excuse Miami from travelling to and from Jonesboro back to Miami during a major hurricane.

I think that would be an interesting wrinkle.

If I were a judge, and I'm not, then I might also consider what the Miami football team did during those 19 days of closure. In other words, did they conduct practice even if at an off-campus facility? Did they prepare as a unit in any way for another game? Well, they must have because they played Toledo on September 23rd and that was 14 days after the vacated Arkansas State date. I'm assuming that date fell within the 19 day window.

Maybe another way of asking the question...did the hurricane prevent you from doing anything you would have normally done outside of traveling to Jonesboro? If the answer is 'no' then I might not be too sympathetic to Miami's argument.

(02-15-2018 02:11 PM)quo vadis Wrote:  

(02-15-2018 01:18 PM)YNot Wrote:  HOWEVER, a major weakness in Miami's letter is its interpretation of the contractual provision that states that any games not played will be rescheduled "as such exigencies may dictate or permit." It's hard to claim it reasonable to push the game back 7 or 8 YEARS (and 11 or 12 years after the original contract) when you have reasonable open dates in 2020 *AND* 2021. The original games were to be played within 1 and 3 years after the original contract.

I agree that this is a possible point where AS will be seen to be correct. But, I still don't think so. The reason is, the clause doesn't state that either party has to suffer an onerous financial penalty to reschedule if the original game was canceled for a valid reason. If I understand the letters, AS is asking Miami to give up a home game in 2020 or 2021 to reschedule them. That would cost Miami a a lot of money, making it unreasonable.

Second, games are often scheduled 7 or 8 years out, that's not unusual in college football. If Miami was offering a game in 2034, that would be unreasonable, but 2024 is within the current window of when teams are scheduling games.

For those reasons, I think a judge will tell AS to take 2024 or leave it.

Miami is not being asked to give up anything. The offer to Miami was play in one of those seasons in lieu of paying. Contract does not require that there be any offer of rescheduling.

Miami hasn't scheduled the games at home vs FCS so they aren't really being asked to give up a home game because those games don't exist. I might have New Year's Eve blocked for a date with Jennifer Anniston but am I really giving up a date with Jennifer Anniston if I've never met or spoke to her and make other plans?

Miami's desire is to play at home. They are only mandated to play five home games under NCAA rules, no one is asking Miami to only play four.

There is no provision that requires Arkansas State to accept any offer to reschedule. The offer is a courtesy and nothing more.

The Miami position is we can't play on the requested dates because we don't want to.

(02-15-2018 02:11 PM)quo vadis Wrote:  

(02-15-2018 01:18 PM)YNot Wrote:  HOWEVER, a major weakness in Miami's letter is its interpretation of the contractual provision that states that any games not played will be rescheduled "as such exigencies may dictate or permit." It's hard to claim it reasonable to push the game back 7 or 8 YEARS (and 11 or 12 years after the original contract) when you have reasonable open dates in 2020 *AND* 2021. The original games were to be played within 1 and 3 years after the original contract.

I agree that this is a possible point where AS will be seen to be correct. But, I still don't think so. The reason is, the clause doesn't state that either party has to suffer an onerous financial penalty to reschedule if the original game was canceled for a valid reason. If I understand the letters, AS is asking Miami to give up a home game in 2020 or 2021 to reschedule them. That would cost Miami a a lot of money, making it unreasonable.

Second, games are often scheduled 7 or 8 years out, that's not unusual in college football. If Miami was offering a game in 2034, that would be unreasonable, but 2024 is within the current window of when teams are scheduling games.

For those reasons, I think a judge will tell AS to take 2024 or leave it.

The difference here is that this isn't a new contract for future games. It is an existing contract that was to be completed within 4 years. The first game was already played in 2014. To now try to push the game out by an additional 7 or 8 years - and 10 or 11 years after the first game - doesn't seem reasonable...and especially when you have an opening in 2020 where you could fairly easily accommodate the game.

But, that's why we have a court system and judges who make these determinations.

(02-15-2018 02:30 PM)BullsFanInTX Wrote:  Not really. If I read Miami's schedule correctly, even if they played AT ASU in 2020, they STILL would get 6 home games.

If you are saying they would give up a 7th home game (which is not mandatory for ANYONE), then yes, you probably would be correct.

Right now, according to the FBS schedules website, Miami is scheduled to play at Michigan St, and home vs. Temple in 2020...meaning they could play an FCS team at home and play at ASU, and still have 6 home games.

What am I missing. Miami needs to man up and play at Arkansas State.

http://www.fbschedules.com/ncaa/acc/miam...icanes.php

Miami played 3 OOC home games in 2017, but only 2 OOC home games in 2015 and 2016.

Miami's future OOC scheduling *strategy* appears to be 2 home games, 1 road, and 1 neutral ('18 v. LSU in Arlington, '19 in Orlando v. Florida, '21 v. Alabama in Atlanta). I agree that Miami needs to play at Arkansas St. sooner rather than later....or pay the $650K and move on.

I'm sure BYU would be willing to accommodate Miami in Provo for a 2024 date, and travel to Miami in November 2025. :)

(02-15-2018 02:42 PM)Stugray2 Wrote:  

(02-15-2018 04:39 AM)arkstfan Wrote:  

(02-15-2018 03:47 AM)Stugray2 Wrote:  We'll see what the court says. Or more likely they settle for something less than the full amount and drop the suit, as lawyers will easily eat up $500K for both sides.

I doubt AState would hire outside counsel. State agencies in Arkansas rarely use employ outside counsel. The only expense would be if they want depose Miami officials or Coach Richt


Sent from my iPhone using Tapatalk

They do, Lawyers are on contract, but they have charges beyond the normal fees. Carrying out a lawsuit is one of those. They will bill for all the costs of discovery and any and all court time. Even a few weeks in court would consume a large chunk of that $500K.

They will settle.

These Lawyer work for the Arkansas State University System. There fees are already covered. The only way other legal fees could be charged is if ASU System brings in an outside law firm which I do not see happening.
http://www.asusystem.edu/offices/general-counsel/

Quote:The General Counsel's Office handles legal issues for the Arkansas State University System. The Office discharges its responsibilities by providing legal advice on issues, providing legal review on contracts and agreements, recommending action on legal affairs of ASU, and representing ASU in legal matters.

Just seems like Miami should have to pay up. It's rather apparent that they wanted to get out of the game beforehand and are using the hurricane as an excuse to not pay.

(02-15-2018 03:24 PM)NIU007 Wrote:  Just seems like Miami should have to pay up. It's rather apparent that they wanted to get out of the game beforehand and are using the hurricane as an excuse to not pay.

In fairness. $650,000 unbudgeted for in February is probably not simple for even most P5's but I would wager if they wanted to admit the liability and kick it to the end of the fiscal year when the conference distribution normally takes place that hasn't come out.