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Miami sued Arkansas State BEFORE AState sued them
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Post: #61
RE: Miami sued Arkansas State BEFORE AState sued them
(03-07-2018 10:07 AM)quo vadis Wrote:  
(03-07-2018 09:05 AM)johnbragg Wrote:  As far as I can tell, UCF cancelled GT @ UCF, so no buyout there. UCF is going to GT in 2020.

FIU @ Indiana looks like it was rescheduled to...2024. Point for Miami. (Indiana played at FIU in 2016 and returns in 2018.)

Also, LA-Monroe vs FSU was rescheduled and played last year, which FSU was initially not going to do but as their season went into the toilet they became desperate to get a win to make them bowl eligible. But that was again a case of the home team canceling to begin with.

That game was scheduled to be played in Tallahassee.

2014 Florida-Idaho is most instructive in seeing the difference in school leadership. Game officials would not permit that game to be played because of lightning, a clear and obvious force majeure and Florida paid the guarantee in exchange for Idaho returning at a later agreed date AND Florida agreed to pay Idaho's reasonable travel costs for the return date.
03-07-2018 10:18 AM
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quo vadis Offline
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Post: #62
RE: Miami sued Arkansas State BEFORE AState sued them
(03-07-2018 10:18 AM)arkstfan Wrote:  
(03-07-2018 10:07 AM)quo vadis Wrote:  
(03-07-2018 09:05 AM)johnbragg Wrote:  As far as I can tell, UCF cancelled GT @ UCF, so no buyout there. UCF is going to GT in 2020.

FIU @ Indiana looks like it was rescheduled to...2024. Point for Miami. (Indiana played at FIU in 2016 and returns in 2018.)

Also, LA-Monroe vs FSU was rescheduled and played last year, which FSU was initially not going to do but as their season went into the toilet they became desperate to get a win to make them bowl eligible. But that was again a case of the home team canceling to begin with.

That game was scheduled to be played in Tallahassee.

Yes, i already said that above.
03-07-2018 10:19 AM
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Frank the Tank Offline
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Post: #63
RE: Miami sued Arkansas State BEFORE AState sued them
(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.
03-07-2018 10:55 AM
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Tom in Lazybrook Offline
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Post: #64
RE: Miami sued Arkansas State BEFORE AState sued them
(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 a game in a similar situation (any hurricane with any forecast track supposed to hit near South Florida within a 48 period after the game), 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'm hoping for a nice big fat hurricane to be off the coast of Miami next Labor Day (not to hit, but to be in the area). Lets see if Miami just cancels on LSU and tells them sucks to be you. Of course they'd send the team to Arlington and play the game. I promise you that if a hurricane is anywhere near South Florida (and by near - I mean any forecast tracks showing it could go near there), Arkansas State will be watching what Miami does in that case.

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.

Oh and by the way, if Miami wins, then any team that 'just doesn't want to play at Miami' could simply cancel without consequence, so long as there's a hurricane somewhere. Sorry, there was a hurricane somewhere in the Atlantic Basin....sucks to be you. This is really a dumb move on their part. They have more liability than other schools because they friggin play half their season during Hurricane season in an active hurricane area.

And no, they wouldn't dare do this to a P5.
(This post was last modified: 03-07-2018 11:22 AM by Tom in Lazybrook.)
03-07-2018 11:06 AM
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Frank the Tank Offline
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Post: #65
RE: Miami sued Arkansas State BEFORE AState sued them
(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.
03-07-2018 11:21 AM
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ark30inf Offline
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Post: #66
RE: Miami sued Arkansas State BEFORE AState sued them
(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.
You are right, it isn't a P5/G5 issue. Because any other P5 would have found a mutually agreeable reschedule or paid their buyout obligation.



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03-07-2018 11:31 AM
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Tom in Lazybrook Offline
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Post: #67
RE: Miami sued Arkansas State BEFORE AState sued them
(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. So supposedly rich and powerful, but they can't pony up $650,000 after they already got their revenue from the home game.

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 SHOULD 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 (or charge a truly unreasonable premium)".

You know this can bite Miami on the butt, badly. Say there's a real hurricane impacting Miami's game with Florida in 2 years. They both still need the game. And they can still play it, but only if say CMU and another MAC team moved a conference game later in the year. In the past, the MAC teams would probably accommodate them, for a reasonable accommodation. Now, I see no reason why CMU and the other MAC team shouldn't (not just couldn't - but shouldn't) tell them. Sorry, our price is 2 million to move the game (or a rock solidly contracted home game at our place next year). In the past, G5 teams have been VERY accommodating to those types of requests. I don't think that's going to be the case going forward, especially if it involves Miami. And I think that most athletic directors would understand quite well why the G5 school would be taking a hard line with Miami.
(This post was last modified: 03-07-2018 11:55 AM by Tom in Lazybrook.)
03-07-2018 11:46 AM
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Frank the Tank Offline
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Post: #68
RE: Miami sued Arkansas State BEFORE AState sued them
(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.
03-07-2018 12:04 PM
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johnbragg Offline
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Post: #69
RE: Miami sued Arkansas State BEFORE AState sued them
(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.
03-07-2018 01:05 PM
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RE: Miami sued Arkansas State BEFORE AState sued them
(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.

Thats the way I read it. The force majeure clause excuses the 2017 cancellation--BUT REQUIRES it to be rescheduled. If that doesnt happen---the the liquidated damages clause would be triggered. Since there is no specific timetable for the reschedule--its basically going to come down to what the judge see's as "reasonable" and "typical". My guess is 7 years from now, when other earlier openings exist, is probably not going to be considered "reasonable".
(This post was last modified: 03-07-2018 01:14 PM by Attackcoog.)
03-07-2018 01:09 PM
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Frank the Tank Offline
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RE: Miami sued Arkansas State BEFORE AState sued them
(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.
03-07-2018 01:22 PM
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johnbragg Offline
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Post: #72
RE: Miami sued Arkansas State BEFORE AState sued them
(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?
(This post was last modified: 03-07-2018 01:38 PM by johnbragg.)
03-07-2018 01:32 PM
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ark30inf Offline
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Post: #73
RE: Miami sued Arkansas State BEFORE AState sued them
(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.
If 'as exigencies permit' means 'when we wanna' instead of 'next open date that has not been filled' then I guess maybe.

Personally, I don't think A-State is "behaving unreasonably" in thinking that an open date that is unfilled is more exigent than one years down the road.

I thought exigencies demanded prompt action...not whenever we feel like getting around to it. As far as I know the emergency is now over and there are dates that exigencies permit.

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03-07-2018 01:34 PM
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Post: #74
RE: Miami sued Arkansas State BEFORE AState sued them
(03-07-2018 01:05 PM)johnbragg Wrote:  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"?

Unless there is a specific legal meaning for "as exigencies may dictate or permit", that sounds vague enough that Miami would be within the contract to offer a game date in 2024 or 2025. The language is vague -- doesn't allow Miami to just walk away for free, doesn't allow Arkansas State to choose the date for rescheduling -- and both sides have to live with that.

I still think this is just a dispute over whether Miami pays $0 or $650,000 or some number in between.
03-07-2018 01:39 PM
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Post: #75
RE: Miami sued Arkansas State BEFORE AState sued them
(03-07-2018 01:39 PM)Wedge Wrote:  
(03-07-2018 01:05 PM)johnbragg Wrote:  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"?

Unless there is a specific legal meaning for "as exigencies may dictate or permit", that sounds vague enough that Miami would be within the contract to offer a game date in 2024 or 2025. The language is vague -- doesn't allow Miami to just walk away for free, doesn't allow Arkansas State to choose the date for rescheduling -- and both sides have to live with that.

I still think this is just a dispute over whether Miami pays $0 or $650,000 or some number in between.
Not sure what the legal meaning is, but the general meaning is...as soon as possible after the need to deal with the emergency situation is over.

Now does that mean that the game must be rescheduled to occur as soon as exigencies permit...or that the game rescheduling must be done as soon as exigencies permit?

The latter makes no sense to me as that allows the plumber to reschedule the work for 2029 with no penalty.

If that turns out to be the case then you better start spelling it out in future contracts, especially with Miami.





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03-07-2018 03:01 PM
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RE: Miami sued Arkansas State BEFORE AState sued them
This thread is why I sincerely hate our law system.

It's so biased and favors whoever is willingly to play the most dirty.
03-07-2018 04:03 PM
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Post: #77
RE: Miami sued Arkansas State BEFORE AState sued them
(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.

I think you spending too much time on this as if this were a normal clause. It is not, in fact it is in my experience a rather restricted clause.

This contract should be void with respect to any of the games in the event it becomes impossible to play such game(s) by .....


Impossible. In Arkansas that is not a term of art and would have a normal definition "not able to occur, exist, or be done".

There was a hurricane headed toward Miami but that does not make the game unable to be played. Miami believed it was in the best interest of the players to ignore the suggestions to evacuate and send players home to make their own decision as to evacuation.

That is a choice however it was not an impossibility.

Remember also AState and ESPN reached an agreement to move the game to Friday if Miami were willing. The 'Canes could have been wheels up out of MEM at midnight and wheels down at MIA no later 2:30am Saturday and 20 hours before wind gusts hit 50mph which was the threshold to close the tower. AState offered to pay the charter costs.

Even Saturday, Miami would have been delayed because the threat of the airport closing would have meant the charter would have likely declined returning to Miami. But Miami's inability to return doesn't make playing the game an impossibility, it makes it inconvenient.

Miami was well within their rights to cancel but they could have played and elected not to and need to pay the liquidated damages.
03-07-2018 04:05 PM
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Post: #78
RE: Miami sued Arkansas State BEFORE AState sued them
(03-07-2018 01:39 PM)Wedge Wrote:  
(03-07-2018 01:05 PM)johnbragg Wrote:  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"?

Unless there is a specific legal meaning for "as exigencies may dictate or permit", that sounds vague enough that Miami would be within the contract to offer a game date in 2024 or 2025. The language is vague -- doesn't allow Miami to just walk away for free, doesn't allow Arkansas State to choose the date for rescheduling -- and both sides have to live with that.

I still think this is just a dispute over whether Miami pays $0 or $650,000 or some number in between.

I don't believe anyone at either school really wants this game to be played at this point.

The reschedule provision is a turd.

Miami provided the contract. At least in Arkansas, the rule is that when a term is unclear and cannot be resolved by plain meaning of the words the contract is to be read in the manner that is favorable to the party that didn't draft the agreement, but even that gets to be murky because there are negotiated changes noted with hand written changes.

However Miami's position is that by wanting one of the two earlier available dates, AState is being unreasonable. Miami desires 7 home games in 2021. They have six home games already scheduled with App St and Mich St at home. In 2020 they have two dates remaining to fill and have five at home, hosting Temple and traveling to Mich St.
03-07-2018 04:12 PM
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Tom in Lazybrook Offline
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Post: #79
RE: Miami sued Arkansas State BEFORE AState sued them
Seriously, how bad of a jerk do you have to be as P5 to have a G5 school say, screw you, we don't want to play you at home? Just pay us the 1/3 of our normal payday fee and get lost.
(This post was last modified: 03-07-2018 06:31 PM by Tom in Lazybrook.)
03-07-2018 06:30 PM
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Post: #80
RE: Miami sued Arkansas State BEFORE AState sued them
(03-07-2018 04:05 PM)arkstfan 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.

I think you spending too much time on this as if this were a normal clause. It is not, in fact it is in my experience a rather restricted clause.

This contract should be void with respect to any of the games in the event it becomes impossible to play such game(s) by .....


Impossible. In Arkansas that is not a term of art and would have a normal definition "not able to occur, exist, or be done".

There was a hurricane headed toward Miami but that does not make the game unable to be played. Miami believed it was in the best interest of the players to ignore the suggestions to evacuate and send players home to make their own decision as to evacuation.

That is a choice however it was not an impossibility.

Remember also AState and ESPN reached an agreement to move the game to Friday if Miami were willing. The 'Canes could have been wheels up out of MEM at midnight and wheels down at MIA no later 2:30am Saturday and 20 hours before wind gusts hit 50mph which was the threshold to close the tower. AState offered to pay the charter costs.

Even Saturday, Miami would have been delayed because the threat of the airport closing would have meant the charter would have likely declined returning to Miami. But Miami's inability to return doesn't make playing the game an impossibility, it makes it inconvenient.

Miami was well within their rights to cancel but they could have played and elected not to and need to pay the liquidated damages.

To me, ARK will cloud the issue if they start yacking about "wheels up" and "hotel accommodations in Jonesboro". It wouldn't make much sense for a judge to rule that Miami could have played but 'chose' not to in the context of a hurricane.

Where I am coming to think ARKS is on firmer ground is the notion that the presumption of the rescheduling clause should be to play sooner rather than later. There should be a bias in favor of playing in 2021 rather than 2024, the clause should be read so as to wrap up the contract as soon as reasonably possible, and merely wanting to play a home game on an open date isn't a good enough reason to dodge that.

So IMO a good ruling would be to give Miamai a choice- play in 2021 with the $650k buyout, or play in 2025 for considerably more, say $1 million buyout.
(This post was last modified: 03-07-2018 10:43 PM by quo vadis.)
03-07-2018 10:43 PM
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