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Miami sued Arkansas State BEFORE AState sued them
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Tom in Lazybrook Offline
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Post: #21
RE: Miami sued Arkansas State BEFORE AState sued them
(03-05-2018 07:19 PM)quo vadis Wrote:  
(03-05-2018 06:46 PM)YNot Wrote:  I'm not as confident as Quo on the rescheduling issue. I think it is reasonable for Arkansas St. to demand Miami reschedule the game sooner. Miami has not proven the inability to play the game in 2021 - just a strong desire to have an FCS home game instead of a road game at Arkansas St.

True, but on the other hand, ARK hasn't proven an inability to play in 2024 either - the too just have a strong desire to play it sooner rather than later, and again, IMO the contract doesn't seem to say anything about playing sooner or later.

How about this: schedule it when Miami wants, in 2024, but boost the buyout significantly, from say $650k to $1 million. If Miami wants their preference then they can pay more for it.

I think the buyout should be a lot more punitive, seeing as Miami has apparently no interest of ever playing in Jonesboro.

I think that any additional buyout should have no FM provisions. Show up or pay up. And Miami should pay interest at 5 percent or so on the 650k from 2017 to the date of the game (or the date of the payoff).

The contract should have a special provision if Miami tries to cancel the game, again at the last minute, thus making it impossible for them to reschedule another good home game.

So here's what would be fair

1) Game in 2024
2) Miami pays Arkansas State 5% interest on the 650k between 2017's cancellation and the game date ($310,000).
3) 1.2 Million if cancelled prior to 2022. 2.4 million if cancelled before 2023. 4.8 Million if cancelled after that.
4) No FM clause in the contract. Only out in the contract is Arkansas State's.

BTW, the amount of interest at 5 percent a year on 650000 from 2017 to 2024 is 310,000. Its not a nominal amount. That's what Miami's decision to not play Ark State and substitute a game in 2024 for it will cost Arkansas State. And Arkansas State is willing to just eat that interest until 2021, which represents 179,000 dollars. But that's not good enough for Miami.

Basically the value of 650,000 in 2024 today is 340,000.

----

If you give Miami an out, they'll take it. They already had a really low buyout, but even that's not good enough for them.
(This post was last modified: 03-05-2018 07:54 PM by Tom in Lazybrook.)
03-05-2018 07:51 PM
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msm96wolf Offline
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Post: #22
RE: Miami sued Arkansas State BEFORE AState sued them
(03-05-2018 07:51 PM)Tom in Lazybrook Wrote:  
(03-05-2018 07:19 PM)quo vadis Wrote:  
(03-05-2018 06:46 PM)YNot Wrote:  I'm not as confident as Quo on the rescheduling issue. I think it is reasonable for Arkansas St. to demand Miami reschedule the game sooner. Miami has not proven the inability to play the game in 2021 - just a strong desire to have an FCS home game instead of a road game at Arkansas St.

True, but on the other hand, ARK hasn't proven an inability to play in 2024 either - the too just have a strong desire to play it sooner rather than later, and again, IMO the contract doesn't seem to say anything about playing sooner or later.

How about this: schedule it when Miami wants, in 2024, but boost the buyout significantly, from say $650k to $1 million. If Miami wants their preference then they can pay more for it.

I think the buyout should be a lot more punitive, seeing as Miami has apparently no interest of ever playing in Jonesboro.

I think that any additional buyout should have no FM provisions. Show up or pay up. And Miami should pay interest at 5 percent or so on the 650k from 2017 to the date of the game (or the date of the payoff).

The contract should have a special provision if Miami tries to cancel the game, again at the last minute, thus making it impossible for them to reschedule another good home game.

So here's what would be fair

1) Game in 2024
2) Miami pays Arkansas State 5% interest on the 650k between 2017's cancellation and the game date ($310,000).
3) 1.2 Million if cancelled prior to 2022. 2.4 million if cancelled before 2023. 4.8 Million if cancelled after that.
4) No FM clause in the contract. Only out in the contract is Arkansas State's.

BTW, the amount of interest at 5 percent a year on 650000 from 2017 to 2024 is 310,000. Its not a nominal amount. That's what Miami's decision to not play Ark State and substitute a game in 2024 for it will cost Arkansas State. And Arkansas State is willing to just eat that interest until 2021, which represents 179,000 dollars. But that's not good enough for Miami.

Basically the value of 650,000 in 2024 today is 340,000.

----

If you give Miami an out, they'll take it. They already had a really low buyout, but even that's not good enough for them.

Miami or any other sane team would ever agree to this. It would be a flat fee. Again, I get Miami in theory could owe nothing for the FM clause, but it seems a 500K buyout would have been the best option. Only winners will be the lawyers and courts. I don't see either side getting court costs paid by the other however I am not a lawyer or stayed at a Holiday Inn Express.
03-05-2018 08:01 PM
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Tom in Lazybrook Offline
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Post: #23
RE: Miami sued Arkansas State BEFORE AState sued them
(03-05-2018 08:01 PM)msm96wolf Wrote:  
(03-05-2018 07:51 PM)Tom in Lazybrook Wrote:  
(03-05-2018 07:19 PM)quo vadis Wrote:  
(03-05-2018 06:46 PM)YNot Wrote:  I'm not as confident as Quo on the rescheduling issue. I think it is reasonable for Arkansas St. to demand Miami reschedule the game sooner. Miami has not proven the inability to play the game in 2021 - just a strong desire to have an FCS home game instead of a road game at Arkansas St.

True, but on the other hand, ARK hasn't proven an inability to play in 2024 either - the too just have a strong desire to play it sooner rather than later, and again, IMO the contract doesn't seem to say anything about playing sooner or later.

How about this: schedule it when Miami wants, in 2024, but boost the buyout significantly, from say $650k to $1 million. If Miami wants their preference then they can pay more for it.

I think the buyout should be a lot more punitive, seeing as Miami has apparently no interest of ever playing in Jonesboro.

I think that any additional buyout should have no FM provisions. Show up or pay up. And Miami should pay interest at 5 percent or so on the 650k from 2017 to the date of the game (or the date of the payoff).

The contract should have a special provision if Miami tries to cancel the game, again at the last minute, thus making it impossible for them to reschedule another good home game.

So here's what would be fair

1) Game in 2024
2) Miami pays Arkansas State 5% interest on the 650k between 2017's cancellation and the game date ($310,000).
3) 1.2 Million if cancelled prior to 2022. 2.4 million if cancelled before 2023. 4.8 Million if cancelled after that.
4) No FM clause in the contract. Only out in the contract is Arkansas State's.

BTW, the amount of interest at 5 percent a year on 650000 from 2017 to 2024 is 310,000. Its not a nominal amount. That's what Miami's decision to not play Ark State and substitute a game in 2024 for it will cost Arkansas State. And Arkansas State is willing to just eat that interest until 2021, which represents 179,000 dollars. But that's not good enough for Miami.

Basically the value of 650,000 in 2024 today is 340,000.

----

If you give Miami an out, they'll take it. They already had a really low buyout, but even that's not good enough for them.

Miami or any other sane team would ever agree to this. It would be a flat fee. Again, I get Miami in theory could owe nothing for the FM clause, but it seems a 500K buyout would have been the best option. Only winners will be the lawyers and courts. I don't see either side getting court costs paid by the other however I am not a lawyer or stayed at a Holiday Inn Express.

If Miami was actually planning on playing the game in 2024, I see no reason why they wouldn't agree to it. No payment required if you show up. And the 310,000 payment is actually for damages incurred by Ark State as the proximate result of Miami's unilateral decision to delay paying Ark State back for the home game for 7 years. Basically unless Miami is simply looking to stiff Ark State - again, then I see no reason why they'd lose anything on this new deal. And they get their FCS game in 2021. They just have to pay Ark State the cost of the float.

It really wouldn't cost Miami anything other than the cost of their decision plus protection for Arkansas State in the event that Miami isn't negotiating in good faith.

The team could have travelled, and other teams similarly situated would have. Miami's use of the FM clause appears to be pretty weak. FIU and FAU did travel. I fail to see how Miami was different.

And if the FM clause is valid in this case, why even bother offering a date in 2024? Just say, there was a hurricane somewhere and because of that 'thanks for the free home game chumps'.

Seeing as UM probably has no intention of travelling to Jonesboro in 2024 or ever, and is likely simply using the offer of a 2024 game as some sort of way to avoid paying anything (which assuming a 5% interest rate, amounts to an effective discount on the payout of 310,000) then why wouldn't Arkansas State sue if they thought they could win the case. $310,000 buys a lot of legal work (which is the approximate amount Miami is stiffing Ark State on by delaying the game)

---

You know, Miami could just play the game in 2021 and make Arkansas State eat the 178,000 in deferred interest from 2017 to 2021. Ark State is willing to do that. Even now, Arkansas State is being far more reasonable.

----

This same bs happened to South Alabama last year. We lost an away game at LSU because they decided to cancel our game at the last minute as a result of a hurricane in another week impacting the Florida LSU game. In that case, LSU did the right thing (they really weren't the bad guy in all of this-UF was). They paid the full buyout to USA (which IIRC was in the 1.5 million range) and they might have even paid Presbyterian's costs to travel to USA so that USA would have 12 games that year. That was fair. It still sucked, but at least USA couldn't claim they were put out financially.

Just because you're a P5 doesn't mean that you can just ignore deals you've made.

BTW, Arkansas State gets around 2 million for a payday game nowadays. Miami didn't provide a favor to State for scheduling this game, but saved paying some team like Georgia State a similar amount by agreeing to a home and home.
(This post was last modified: 03-05-2018 08:30 PM by Tom in Lazybrook.)
03-05-2018 08:10 PM
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billybobby777 Offline
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Post: #24
RE: Miami sued Arkansas State BEFORE AState sued them
(03-05-2018 02:46 PM)quo vadis Wrote:  
(03-05-2018 02:37 PM)dbackjon Wrote:  
(03-05-2018 02:31 PM)quo vadis Wrote:  
(03-05-2018 01:59 PM)dbackjon Wrote:  So where are the Miami defenders now? This is 100% on Miami. Miami should be forced to play a game at ASU in the next two years, or pay double buyout. Typical P5 douchebaggery.

How is this "100% on Miami"?

Miami claims that ARK-ST was threatening to sue for damages, so they sued first to try and force the venue, like ARK-ST has done with their Arkansas filing. Both sides have sued each other.


1) They could have played the game. FIU and FAU did under similar circumstances.

2) Since they cancelled, the game reschedule should be at a date of ASU's choosing, not Miami, who is trying to weasel out of a return game.

That is your personal belief, but it's not what the contract says. It says it's to be made up by the mutual agreement of the two schools, not necessarily to the benefit of one or the other. Miami wants 2024/2025, AS wants 2020/2021.

They can't agree on dates, so settling it in court is really the only option.

Quo,
You are a lawyer correct ? You would have to be, to be that contrary I would think..
03-05-2018 08:14 PM
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arkstfan Away
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Post: #25
RE: Miami sued Arkansas State BEFORE AState sued them
(03-05-2018 06:24 PM)quo vadis Wrote:  
(03-05-2018 06:11 PM)Tom in Lazybrook Wrote:  
(03-05-2018 05:34 PM)YNot Wrote:  To clarify, Miami is asking for the court to declare:

1) whether the game at Arkansas St. was properly cancelled due to a force majeure event (Hurricane Irma);

2) whether Arkansas St. acted unreasonably in refusing to agree to one of the 2024 and 2025 available game dates;

3) whether Miami may be excused from having to reschedule the game at Arkansas St. (because of Arkansas St.'s refusal to agree to the 2024 or 2025 rescheduled date and its threat to sue for liquidated damages).

So, even if the judge rules that Miami is not excused from the second game at Arkansas St., Miami could get the judge to declare that the cancellation was justified and that Arkansas St. is unreasonable to refuse one of the 2024 or 2025 dates. This essentially forces the game in 2024 or 2025.

And, interesting to see that Miami filed first. First to file rule seems to favor Florida venue for this lawsuit, plus the arguments that it was an ACC contract drafted in Florida and became binding when Miami signed the contract in Florida.

Yea but then why would it be unreasonable for Miami to offer up the year 2125 as the make up date? I think that State is going to win this one, if it turns on available dates.

You see, there's a calculatable economic cost to this. Arkansas State has been out the revenue for the game since last year. For Miami to unreasonably refuse to schedule it at the first opportunity requires Ark State to effectily forego that revenue for longer periods of time.

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.
03-05-2018 10:13 PM
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arkstfan Away
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Post: #26
RE: Miami sued Arkansas State BEFORE AState sued them
(03-05-2018 06:46 PM)YNot Wrote:  Do we really want legal precedence to cause university administrators to second guess scheduling and postponement decisions in a time of a threatening natural disaster and federal and state emergency?

But the judge isn't being asked to do that.

The claim is not that Miami should provide specific performance by arriving on the scheduled date.

Rather that Miami should have either paid the liquidated damages on or before February 15 or rescheduled on an available mutually available open date in either the first or second season such date existed.
03-05-2018 10:18 PM
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quo vadis Offline
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Post: #27
RE: Miami sued Arkansas State BEFORE AState sued them
(03-05-2018 07:51 PM)Tom in Lazybrook Wrote:  
(03-05-2018 07:19 PM)quo vadis Wrote:  
(03-05-2018 06:46 PM)YNot Wrote:  I'm not as confident as Quo on the rescheduling issue. I think it is reasonable for Arkansas St. to demand Miami reschedule the game sooner. Miami has not proven the inability to play the game in 2021 - just a strong desire to have an FCS home game instead of a road game at Arkansas St.

True, but on the other hand, ARK hasn't proven an inability to play in 2024 either - the too just have a strong desire to play it sooner rather than later, and again, IMO the contract doesn't seem to say anything about playing sooner or later.

How about this: schedule it when Miami wants, in 2024, but boost the buyout significantly, from say $650k to $1 million. If Miami wants their preference then they can pay more for it.

I think the buyout should be a lot more punitive, seeing as Miami has apparently no interest of ever playing in Jonesboro.

It should only be punitive at all if the judge finds that Miami did not have a legit "force majeur" reason for not playing.

If the judge finds they did, there should be nothing punitive about the settlement at all.
03-05-2018 11:36 PM
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quo vadis Offline
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Post: #28
RE: Miami sued Arkansas State BEFORE AState sued them
(03-05-2018 10:13 PM)arkstfan Wrote:  
(03-05-2018 06:24 PM)quo vadis Wrote:  
(03-05-2018 06:11 PM)Tom in Lazybrook Wrote:  
(03-05-2018 05:34 PM)YNot Wrote:  To clarify, Miami is asking for the court to declare:

1) whether the game at Arkansas St. was properly cancelled due to a force majeure event (Hurricane Irma);

2) whether Arkansas St. acted unreasonably in refusing to agree to one of the 2024 and 2025 available game dates;

3) whether Miami may be excused from having to reschedule the game at Arkansas St. (because of Arkansas St.'s refusal to agree to the 2024 or 2025 rescheduled date and its threat to sue for liquidated damages).

So, even if the judge rules that Miami is not excused from the second game at Arkansas St., Miami could get the judge to declare that the cancellation was justified and that Arkansas St. is unreasonable to refuse one of the 2024 or 2025 dates. This essentially forces the game in 2024 or 2025.

And, interesting to see that Miami filed first. First to file rule seems to favor Florida venue for this lawsuit, plus the arguments that it was an ACC contract drafted in Florida and became binding when Miami signed the contract in Florida.

Yea but then why would it be unreasonable for Miami to offer up the year 2125 as the make up date? I think that State is going to win this one, if it turns on available dates.

You see, there's a calculatable economic cost to this. Arkansas State has been out the revenue for the game since last year. For Miami to unreasonably refuse to schedule it at the first opportunity requires Ark State to effectily forego that revenue for longer periods of time.

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 post was last modified: 03-05-2018 11:41 PM by quo vadis.)
03-05-2018 11:40 PM
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arkstfan Away
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Post: #29
RE: Miami sued Arkansas State BEFORE AState sued them
(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:  
(03-05-2018 06:11 PM)Tom in Lazybrook Wrote:  
(03-05-2018 05:34 PM)YNot Wrote:  To clarify, Miami is asking for the court to declare:

1) whether the game at Arkansas St. was properly cancelled due to a force majeure event (Hurricane Irma);

2) whether Arkansas St. acted unreasonably in refusing to agree to one of the 2024 and 2025 available game dates;

3) whether Miami may be excused from having to reschedule the game at Arkansas St. (because of Arkansas St.'s refusal to agree to the 2024 or 2025 rescheduled date and its threat to sue for liquidated damages).

So, even if the judge rules that Miami is not excused from the second game at Arkansas St., Miami could get the judge to declare that the cancellation was justified and that Arkansas St. is unreasonable to refuse one of the 2024 or 2025 dates. This essentially forces the game in 2024 or 2025.

And, interesting to see that Miami filed first. First to file rule seems to favor Florida venue for this lawsuit, plus the arguments that it was an ACC contract drafted in Florida and became binding when Miami signed the contract in Florida.

Yea but then why would it be unreasonable for Miami to offer up the year 2125 as the make up date? I think that State is going to win this one, if it turns on available dates.

You see, there's a calculatable economic cost to this. Arkansas State has been out the revenue for the game since last year. For Miami to unreasonably refuse to schedule it at the first opportunity requires Ark State to effectily forego that revenue for longer periods of time.

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.

You seem to be under the impression the game was to be in Miami. There were evacuation orders for low lying and coastal areas. The government recommendation was to leave, not to stay.
03-06-2018 01:23 AM
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quo vadis Offline
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Post: #30
RE: Miami sued Arkansas State BEFORE AState sued them
(03-06-2018 01:23 AM)arkstfan 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:  
(03-05-2018 06:11 PM)Tom in Lazybrook Wrote:  Yea but then why would it be unreasonable for Miami to offer up the year 2125 as the make up date? I think that State is going to win this one, if it turns on available dates.

You see, there's a calculatable economic cost to this. Arkansas State has been out the revenue for the game since last year. For Miami to unreasonably refuse to schedule it at the first opportunity requires Ark State to effectily forego that revenue for longer periods of time.

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.

You seem to be under the impression the game was to be in Miami. There were evacuation orders for low lying and coastal areas. The government recommendation was to leave, not to stay.

I'll be shocked if any judge is impressed by arguments made by ARK lawyers - from months removed from the hurricane and from the comfort of a court room - about how Miami officials responded in real time in an emergency situation. Any good judge will be loathe to second guess.

But we'll see ... 07-coffee3
03-06-2018 09:29 AM
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Post: #31
RE: Miami sued Arkansas State BEFORE AState sued them
(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:  
(03-05-2018 06:11 PM)Tom in Lazybrook Wrote:  
(03-05-2018 05:34 PM)YNot Wrote:  To clarify, Miami is asking for the court to declare:

1) whether the game at Arkansas St. was properly cancelled due to a force majeure event (Hurricane Irma);

2) whether Arkansas St. acted unreasonably in refusing to agree to one of the 2024 and 2025 available game dates;

3) whether Miami may be excused from having to reschedule the game at Arkansas St. (because of Arkansas St.'s refusal to agree to the 2024 or 2025 rescheduled date and its threat to sue for liquidated damages).

So, even if the judge rules that Miami is not excused from the second game at Arkansas St., Miami could get the judge to declare that the cancellation was justified and that Arkansas St. is unreasonable to refuse one of the 2024 or 2025 dates. This essentially forces the game in 2024 or 2025.

And, interesting to see that Miami filed first. First to file rule seems to favor Florida venue for this lawsuit, plus the arguments that it was an ACC contract drafted in Florida and became binding when Miami signed the contract in Florida.

Yea but then why would it be unreasonable for Miami to offer up the year 2125 as the make up date? I think that State is going to win this one, if it turns on available dates.

You see, there's a calculatable economic cost to this. Arkansas State has been out the revenue for the game since last year. For Miami to unreasonably refuse to schedule it at the first opportunity requires Ark State to effectily forego that revenue for longer periods of time.

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).
03-06-2018 09:45 AM
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Tom in Lazybrook Offline
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Post: #32
RE: Miami sued Arkansas State BEFORE AState sued them
I think Ark State's position is that Miami should just pay them the liquidated damages now, Rather than in 2024, when they cancel or postpone the game again (as they will do - forever).
03-06-2018 10:21 AM
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Post: #33
RE: Miami sued Arkansas State BEFORE AState sued them
(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:  
(03-05-2018 06:11 PM)Tom in Lazybrook Wrote:  Yea but then why would it be unreasonable for Miami to offer up the year 2125 as the make up date? I think that State is going to win this one, if it turns on available dates.

You see, there's a calculatable economic cost to this. Arkansas State has been out the revenue for the game since last year. For Miami to unreasonably refuse to schedule it at the first opportunity requires Ark State to effectily forego that revenue for longer periods of time.

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?
(This post was last modified: 03-06-2018 10:27 AM by Attackcoog.)
03-06-2018 10:25 AM
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Tom in Lazybrook Offline
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Post: #34
RE: Miami sued Arkansas State BEFORE AState sued them
(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"
(This post was last modified: 03-06-2018 11:27 AM by Tom in Lazybrook.)
03-06-2018 11:08 AM
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Post: #35
RE: Miami sued Arkansas State BEFORE AState sued them
(03-06-2018 11:08 AM)Tom in Lazybrook Wrote:  
(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:  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"

Your math is way off. It is closer to $462k if you use that 5% which I think is overly generous.
03-06-2018 11:22 AM
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Post: #36
RE: Miami sued Arkansas State BEFORE AState sued them
(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?
Miami's prayer for relief is to ask the court to void the contract because it was a force majeure event, Miami has been reasonable in trying to reschedule and Arkansas State has been unreasonable in asking Miami to play in one of the first two years there is a mutual open date because it is unreasonable to ask Miami to play on the road for game one or give up an as yet unscheduled home FCS opponent.
03-06-2018 12:47 PM
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ark30inf Offline
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Post: #37
RE: Miami sued Arkansas State BEFORE AState sued them
(03-06-2018 09:29 AM)quo vadis Wrote:  
(03-06-2018 01:23 AM)arkstfan 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.

You seem to be under the impression the game was to be in Miami. There were evacuation orders for low lying and coastal areas. The government recommendation was to leave, not to stay.

I'll be shocked if any judge is impressed by arguments made by ARK lawyers - from months removed from the hurricane and from the comfort of a court room - about how Miami officials responded in real time in an emergency situation. Any good judge will be loathe to second guess.

But we'll see ... 07-coffee3
Judges generally don't go on emotion or where you are from as a practice.

Any ruling will serve as precedent in Florida regarding Force Majeure...and in Florida thats sort of important.

If a plumber says he can't do the work because a hurricane might hit right after and travel might be difficult....and then refuses to return the deposit...and tells you he can maybe reschedule in 9 months because he might have more profitable work come up and wants to keep his schedule open...

Does a Florida judge want to set the precedent that this is what Force Majeure is for everyone and every business in Florida from now on?

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03-06-2018 12:51 PM
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Post: #38
RE: Miami sued Arkansas State BEFORE AState sued them
(03-06-2018 12:51 PM)ark30inf Wrote:  
(03-06-2018 09:29 AM)quo vadis Wrote:  
(03-06-2018 01:23 AM)arkstfan Wrote:  
(03-05-2018 11:40 PM)quo vadis Wrote:  
(03-05-2018 10:13 PM)arkstfan Wrote:  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.

You seem to be under the impression the game was to be in Miami. There were evacuation orders for low lying and coastal areas. The government recommendation was to leave, not to stay.

I'll be shocked if any judge is impressed by arguments made by ARK lawyers - from months removed from the hurricane and from the comfort of a court room - about how Miami officials responded in real time in an emergency situation. Any good judge will be loathe to second guess.

But we'll see ... 07-coffee3
Judges generally don't go on emotion or where you are from as a practice.

Any ruling will serve as precedent in Florida regarding Force Majeure...and in Florida thats sort of important.

If a plumber says he can't do the work because a hurricane might hit right after and travel might be difficult....and then refuses to return the deposit...and tells you he can maybe reschedule in 9 months because he might have more profitable work come up and wants to keep his schedule open...

Does a Florida judge want to set the precedent that this is what Force Majeure is for everyone and every business in Florida from now on?

Sent from my SAMSUNG-SM-G870A using Tapatalk

I think you're projecting your own emotions on the case here. I could very easily see the Florida judge go the other direction because the precedent isn't about the big Power Five school University of Miami. Rather, it's about whether every educational institution in the state needs to worry about a force majeure clause being enforced when they are making what they believe is a safety decision with respect to their students and employees. It's easy to tell a school with the resources of Miami that they should just pay up, but imagine if a Florida-based high school was in the same situation. I find that to be much more likely than the plumber-type hypothetical that you presented.

Also, in your plumber hypothetical, the main difference here is that Miami hasn't paid a "deposit" on anything. I guess you're arguing that Arkansas State playing a road game at Miami is the equivalent of a "deposit", but in looking at the clauses in the complaint, I don't believe that's the case. The liquidated damages clause does seem to lean toward it not applying along as there wasn't a cancellation for breach of contract (and a force majeure cancellation is inherently NOT a breach of contract).
03-06-2018 02:37 PM
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quo vadis Offline
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Post: #39
RE: Miami sued Arkansas State BEFORE AState sued them
(03-06-2018 11:08 AM)Tom in Lazybrook Wrote:  
(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:  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.

Obviously, that hasn't been Miami's intent, as they offered to play ARK-ST in either 2024 or 2025 as per the terms of the contract.

They say they filed this suit after ARK-ST threatened to sue if Miami didn't give them either $650k or a date in 2020/2021.
03-06-2018 02:53 PM
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Tom in Lazybrook Offline
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Post: #40
RE: Miami sued Arkansas State BEFORE AState sued them
(03-06-2018 02:53 PM)quo vadis Wrote:  
(03-06-2018 11:08 AM)Tom in Lazybrook Wrote:  
(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:  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.

Obviously, that hasn't been Miami's intent, as they offered to play ARK-ST in either 2024 or 2025 as per the terms of the contract.

They say they filed this suit after ARK-ST threatened to sue if Miami didn't give them either $650k or a date in 2020/2021.

They apparently have no intention of playing that game. They'll use a hurricane, anywhere in 2024 to cancel that game too. And then offer a game in 2065 as a replacement.

Look, G5 teams dont commonly ask for the money back rather than a return game from a P5. There's a reason Ark State is doing this. Miami has no intention of playing the game, and simply wants to cheat Arkansas State out of a paltry cancellation fee.

Basically Miami intends to delay that 2024 game.

And if Miami can delay the game until 2024. Why can't they just delay it FOREVER.

BTW, Miami leaves for away games on Thursday. No Hurricane Watch or Warning was in effect 72 hours before that storm hit.
(This post was last modified: 03-06-2018 03:20 PM by Tom in Lazybrook.)
03-06-2018 03:18 PM
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