(03-07-2018 11:46 AM)Tom in Lazybrook Wrote:  

(03-07-2018 11:21 AM)Frank the Tank Wrote:  

(03-07-2018 11:06 AM)Tom in Lazybrook Wrote:  

(03-07-2018 10:55 AM)Frank the Tank Wrote:  

(03-07-2018 09:40 AM)TrueBlueDrew Wrote:  Honestly I don't see how Miami has a leg to stand on when Every. Single. Other. School. in Florida and even Georgia Southern moved their game location or date without hassle. It's painfully obvious that Miami just doesn't want to play Arkansas State and saw Hurricane Irma as their out. Hopefully the court will rule that they should just pay the buyout and stop whining.

I think a lot of the fans on here want to believe that this matters that other schools were able to reschedule... but it honestly won't here. Like I've said before, a hurricane is probably #1 or #2 on the list of classic force majeure situations - if you can't invoke it in a hurricane, then it's difficult in any situation.

If the Arkansas State argument is that Miami breached the agreement because it wasn't a force majeure situation as evidenced by other Florida schools playing games in 2017, then Arkansas State will lose and lose VERY badly (and risk losing any claim to liquidated damages entirely). The Miami decision to not play the game in 2017 will NOT be questioned. Period.

I don't think that's what Arkansas State is attempting to argue, though. Instead, the question is whether the force majeure situation means that Miami isn't obligated to pay the liquidated damages if the parties can't agree to a rescheduled game. That's a much more nuanced question that the contract isn't 100% clear on and what the court would need to clarify.

In looking at the clause, I think Miami has the better case because the liquidated damages clause is only invoked where there is a cancellation due to a breach of contract and a cancellation due to force majeure is NOT a breach. Essentially, Arkansas State would have to show that Miami not agreeing on the rescheduled dates constitutes a breach, which I really think is a stretch. If Miami is offering dates in 2024/25, then I don't think it's going to matter much if Arkansas State thinks that there are better dates open for them in earlier years. There isn't an obligation for Miami to reschedule the game at the very first available date for them - a lot of people are reading that requirement into the agreement when it's simply not there. It's not even necessarily an obligation for Miami to reschedule the game and/or pay the liquidated damages at all if they had a valid force majeure cancellation of the game (although that's what the court should be clarifying here).

Regardless, this isn't a P5 vs. G5 or big guy vs. little guy question, which is what a lot of fans are trying to turn this into. Whether Miami can afford to pay it or has more brand leverage is 100% irrelevant. If they don't owe it, then they have no obligation to pay any amount out of the goodness of their hearts. If they owe it, then they need to pay. It's a pure contractual question as opposed to some type of grander P5/G5 question.

This is purely a P5/G5 question. Basically, Miami wanted a free home game.

There was no hurricane warning when Miami would have needed to leave for the game. I'm not sure there was even an emergency going on Thursday and there certainly wasn't a hurricane warning. Attending the game would have made the players and staff SAFER.

Then, when Miami inevitably decides to PLAY (any hurricane with any forecast track supposed to hit near South Florida within a 48 period after the game) a game in a similar situation, sues them on issue number 1. You think Miami is going to cancel their game with LSU in Arlington TX next year or their game in Orlando vs Florida in 2019 if there's one or two hurricane tracks heading near South Florida 48 or 72 hours after the game is set to be played? Either way, anyone scheduling any game with Miami in the future is dumb as a box of rocks. Even a payday game.

I agree on the need for new contracts. They should definitely directly specify that the team out the money for the home game is due interest on the cancellation using FM until the game is played. It should directly specify that the team invoking FM has an absolute obligation to make up the game at the first opportunity. It also should specify directly specific penalties for non-performance that are heavily punitive.

But either way, Arkansas State isn't out any money by suing. Miami has no intention of playing the game and has no intention of paying the buyout until the present value of the buyout is effectively worthless.

And no, they wouldn't dare do this to a P5.

From a fan's mind, it might be a P5/G5 question. And you may be right that Miami wouldn't do this to a P5 school. However, that is 100% irrelevant to the court. The question is essentially whether Miami owes liquidated damages or not under the terms of the contract. Whether they would do the same to LSU in a similar situation is speculative and irrelevant with respect to the four corners of this specific contract.

You're also going way overboard with the interpretation of the force majeure clause - courts do NOT want to take the stance that you're taking and they've shown that over literally centuries of case law. If a school insisted upon a force majeure clause in the manner that you've proposed, that school would never get another contract signed again. The force majeure clause is about as standard in contracts as the signature page. This is emotional because it's SPORTS, but the force majeure clause is probably the least controversial portion of any agreement. Taking a hard line on that clause is simply not realistic whatsoever and will just result in a never getting contracts signed at all.

LOL. If Miami can maximize its value from a FM clause, I see no reason why any other team (say, perhaps App State - which is returning to Miami as either a return of a home game or at a discounted payday price) would simply say....screw it, there's a hurricane somewhere around South Florida and we're just going to cancel the game AND we will agree to reschedule in about 50 years.

I don't understand your argument, which appears to be this

"Miami can screw Ark State without any consequences, but if any other school did the same to them, they'd have to work in good faith with Miami because they'd never get another game with anyone else otherwise. Also, this isn't a G5/P5 issue." I don't think so.

Now, as far as the legal ramifications go, even if Arkansas State loses the case they show a few things

1) The reason why the new contracts going forward are going to clean this up. And it will be cleaned up.

2) That youre not going to jank Arkansas State around without consequence

3) That Miami is a bad actor who is looking to cheat others in their contracting.

4) That screwing over Miami with regards to scheduling around hurricanes is completely fair game. Another school needs to move a game with someone else so Miami can reschedule a hurricane delayed game? LOL. I think that you'll find schools saying "I'm sorry but Miami is going to have to pay for that. We'd do it for anyone else, but not them".

The presumption here is that the invocation of a force majeure clause is "screwing" the other party. That's simply not the case... and it's simply not how the courts look at it through many years (and literally centuries) of case law.

I understand the emotional feeling of *wanting* Miami to have to pay because they believe that Miami might be taking advantage of the language of contract to get out of a road game that they don't want to play anymore. Miami may also never have done this to another P5 school. That all might be true. However, the point is that it is completely and 100% irrelevant even if all of that is true. I can't emphasize that enough. The language in the four corners of this particular contract are all that matter here. To the extent that there is an ambiguity in the language of that contract (e.g. whether the force majeure cancellation means that the liquidated damages clause doesn't apply anymore), then the court will rule on that front. However, it will not take into account whether Miami is just using this as a "loophole" to get out of a contract because if that loophole is valid, then Miami is free to use it. Miami's *intent* behind why it wants to challenge this agreement (whether it's nefarious or not) is simply not relevant from a contractual perspective.

My point on the negotiation of force majeure clauses in the future is simply that it's impractical. I've looked at thousands of agreements in my career with pretty much the exact same force majeure clause and have probably spent a grand total of 10 minutes negotiating them. This isn't something that parties that actually want to get contracts completed will die in the ditch on in practicality when there are so many other issues. If I'm a Florida-based school and some other school wants to start imposing additional force majeure requirements, then I'll go find another school to schedule. It's not about it being a loophole but rather that force majeure clauses are supposed to deal with unpredictable situations and trying to hold someone liable for an unpredictable situation is something that our legal system justifiably pushes back on.