(03-06-2018 10:25 AM)Attackcoog Wrote:  

(03-06-2018 09:45 AM)Frank the Tank Wrote:  

(03-05-2018 11:40 PM)quo vadis Wrote:  

(03-05-2018 10:13 PM)arkstfan Wrote:  

(03-05-2018 06:24 PM)quo vadis Wrote:  IMO, if ARK wins, it will not be because of dates, it will be because the court decides "force majeur" didn't apply, and Miami could have played.

I don't think that's likely either, but to me it's more likely than that ARK will win on the dates. The contract says zero about playing sooner rather than later. It doesn't say that the home team of a canceled game is entitled to play so as to maximize their economics regardless of how that impacts on the away team, and rightly so, since the away team was not able to play.

Bottom line: If FM applies, Arkansas State isn't entitled to any consideration w/regard to rescheduling moreso than Miami, because Miami is 100% blameless for the cancellation.

The force majeure clause doesn't look good for Miami. If it said "impractical" or "inconvenient" they would have an argument. It was absolutely inconvenient, there is a straight face argument that can be made that it was impractical to play. Impossible is very tough hurdle.

What is interesting is that one of Miami's arguments is that it is entitled to a declaratory judgment because Arkansas State is being unreasonable in asking Miami to play on a date Miami has open but does not want to make available.

I think that clause looks great for Miami. There was a Federal and State of Emergency in their area at the time. If I'm a judge, that's all i need to know to not second-guess decisions made by school officials, really it should take about 10 seconds for the judge to find in Miami's favor on that.

As I said before, there's no reason for a "clause" of any kind to handle truly impossible situations, because it goes without saying that no party can be held in breach of contract for failing to do something that is impossible to do. The existence of the clause is meant to explain what should happen in the event an emergency makes playing onerous, unwise, etc.

This is why the venue matters.

Who is going to be more sympathetic regarding the application of a force majeure clause regarding a hurricane in Florida: a Florida judge or an Arkansas judge? My guess is that a Florida judge is going to take a “you need to do what you need to do in a hurricane” stance on a force majeure clause, whereas an Arkansas judge is going to pry more into why other schools like FIU were able to fulfill their own contracts. More importantly, a Florida judge isn’t likely going to want a set a precedent of having school administrators worrying about force majeure clauses not applying in hurricane situations.

Frankly, force majeure clauses are considered “boilerplate” - they’re so standard and non-controversial that few people even bother negotiating them. When I speak about force majeure clauses as an attorney, a hurricane is probably the #1 or #2 example of an event where they would apply. Essentially, if a force majeure clause doesn’t apply in a hurricane situation, then it pretty much defeats the entire purpose of such clause.

Assuming that this was a fairly standard force majeure clause, my 10,000-foot view is that Miami was perfectly justified from a contractual perspective in not playing the game in 2017 due to Hurricane Irma being a force majeure event. I have a really hard time believing that a Florida judge is going to dispute that item.

Now, whether this absolves Miami from having to pay liquidated damages and/or reschedule the game is really where the dispute lies. I haven’t seen the exact contract language about how the resolution of rescheduling the game should go or what needs to occur after a force majeure event occurs. Generally speaking, judges would much rather see a financial resolution as opposed having to issue an injunction (e.g. forcing someone to play a game at all, much less on a specific date). Once again, from a 10,000-foot view, it seems as though Arkansas State’s claim is better rooted in arguing for the liquidated damages to be paid. On the other hand, I don’t think a judge wants any part of trying to figure out whether it’s reasonable for a game to be played in 2021 versus 2024/25 or some other date. That doesn’t seem to be relevant (especially since it’s customary in the college football industry to have scheduling arrangements many years in advance). It seems like the case is going to come down to whether liquidated damages will need to be paid or not (and there won’t ever be a rescheduled game played unless the parties come to a separate settlement).

I guess what I find interesting is that this is even an issue. Miami can simply pay the $650K liquidated damages and walk away with a very cheap one-and-done buy game. From a business prospective, thats a screaming bargain on the FBS "one and done" market. So, whats this court fight really about? Is Miami trying to use the force majeure clause to walk away with no cost what so ever?

YES. That's exactly what Miami appears to want to do. They want to use a hurricane, that didn't impact their travel to the game (the hurricane hit on a MONDAY and teams routinely travel on away games on Thursday or earlier, well in advance of any declared emergency), in order to stiff Arkansas State for the return game AND any payment for failure to perform.

Arkansas State is specifically suing for the paltry $650,000 cancellation fee. They agreed to forego about $175,000 in present value dollars to delay the game until 2021, for free. They were willing to work with Miami. Its not Arkansas State's fault if the new football coach doesn't like away games at G5 teams. But Arkansas State is still arguing "just pay us the measly cancellation fee".

I'm really looking forward to Miami trying to argue that they really want to play the game in 2024. I'm sure Arkansas State would agree, if Miami was willing to pay the interest on delayed revenue and offer up a huge penalty for non-performance in 2024 (which would cost them nothing - unless they were just planning on cancelling again). Arkansas State now gets 2 million a game for payday games. I think a reasonable cancellation fee would be 500 grand higher than that amount, so if Miami didn't show up in 2024, they'd owe State 2.5 million.

The present value of $650,000 discounted at 5% interest to be paid in 7 years is $340,000. But heck, there's no guarantee Miami has any intention of paying that in 2024 WHEN (not if) they cancel the game. I presume Miami will just use some hurricane or any natural disaster, occurring anywhere in the Atlantic basin to simply cancel and delay the payment for another 10 years, reducing its value further.

Basically, Miami's attitude is "thanks for the free home game, chumps". And "Lets use a natural disaster to enrich ourselves"