(03-07-2018 01:22 PM)Frank the Tank Wrote:  

(03-07-2018 01:05 PM)johnbragg Wrote:  

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

Provision 14 (Force Majeure) ends with

Quote:Any games not played as scheduled shall be rescheduled as exigencies may dictate or permit.

Isn't it a more reasonable interpretation that
1. Force Majeure applies to playing the game in 2017. Miami made a call, their call stands.
2. The force majeure clause of the contract calls for the game to be rescheduled "as exigencies may dictate or permit." But there is no force majeure stopping the game from being played on mutually available dates in 2020 or 2022 or 2023.* Doesn't that imply "as soon as reasonably possible"? So requiring a strong reason to veto a date, not just "We'd like to start playing 7 home games a year"?

IF "2" is valid, Miami is pretty clearly in breach, and not because of a hurricane but because of their desire to start playing 7 home games. So Arkansas State gets the buyout money.

* "Mutually available" as defined by currently existing commitments, not commitments Miami would like to undertake.

Not necessarily - if the parties wanted to have "as soon as reasonably possible" standard for the rescheduling, then it would have stated that. In fact, that's a common statement for force majeure procedures, e.g. "The parties shall resume their obligations under the Agreement as soon as reasonably possible after the force majeure event occurs." They didn't state that here and a court is generally going to want the parties to mutually agree upon a date as opposed to forcing one upon the other.

Is a court going to look at an offer of a game being played in 2021/22 versus 2024/25 as material? That's a bit difficult to say, but it's also a bit difficult to state that Miami has breached the agreement as a result of the parties not coming to an agreement on a rescheduling date. At face value, it doesn't seem that Miami offering a 2024/25 date is unreasonable regardless of whether they have other earlier open dates, particularly in the context of college football scheduling where there are so many moving parts over a decade or more. The parties not coming to an agreement on a rescheduled date that, on its face, seems pretty standard in the context of the college football industry doesn't seem to warrant a breach of contract claim. It might be an unresolved dispute, but there isn't necessarily a breach that would trigger a liquidated damages clause. However, that's just my 10,000-foot view.

I may have watched too much Judge Judy, but isn't the judge going to ask Miami "why can't you play the game on 9/12/2020, or 9/10 or 9/24/2022, or 9/2 or 9/16/2023?" All of those dates are open on UM's and ASU's schedules, according to FBSchedules.com

I don't know if a contractor is a valid analogy, but if the contractor was supposed to come on 9/10/2017, and I paid a deposit (ASU @ UM 2014), isn't the contractor obligated to schedule as soon as possible, not "I'm holding these dates open for other, unspecified jobs"? Or return the deposit?

EDIT: And what, in law, does the phrase "as exigencies may dictate or permit" mean?