Arkstfan
-
Posts
2,682 -
Joined
-
Last visited
-
Days Won
10 -
Points
5,105 [ Donate ]
Content Type
Profiles
Forums
Gallery
GoMeanGreen.com
Posts posted by Arkstfan
-
-
5 hours ago, keith said:
Before anyone gets weirded out by the back-and-forth between me and Arkstfan, the two of us go back a long way (30 years?). We've actually met and had several conversations in person back in the day when he attended a game or two at Fouts Field (although he may not remember). Anyway, I have great respect for Arkstfan and for his knowledge and insight into the inner workings of college athletics. This is all about improving our shared understand of what's going on and what the potential outcomes might be. I think the bylaws are poorly written and probably add to the confusion around the current disagreement, but unfortunately these are the only words that have been made available to us.
Perhaps it's the legalize language that's throwing me, but below is the relevant excerpt from the LaTech board - Section 3.06 Withdrawal From Conference.
The first few sentences lay out the condition for withdrawal (i.e. written notice, 14 months in advance, leave on July 1, 3/4 vote of members could substitute for written notice, etc.).
The first highlighted part says what happens if a member attempts to leave without fully complying with the requirements. This is where the it says the Conference is entitled to "equitable relief." It does not fully define equitable relief. The only thing it mentions in any detail is that it includes an injunction requiring the member to fully comply with the requirements of withdrawal which basically means fulfilling its membership options until withdrawal can be accomplished within the confines of the requirements (14-month notice, July 1st).
It's my understanding that in legal parlance, "equitable relief" usually means non-monetary remedies. Equitable relief means an injunction or a temporary restraining order or specific performance under the contract. Not always the case, but where I see "equitable relief," I think non-monetary.
What I read the final section to say is that there is no monetary judgment (in arbitration or otherwise) that would compensate the conference for the problems created by the breaching member. In other words, there is no option to pay for monetary damages. This is probably why they balked so fiercely at the request for arbitration. It specifically says that there is no adequate remedy where the conference could be compensated by a monetary penalty and therefore the only option is equitable relief - a non-monetary remedy.
Where specifically are you finding reference to an option that would allow for the payment of monetary damages to the conference for violating the conference bylaws?
-----
3.06 Withdrawal From Conference.
No member of the Conference may withdraw from the Conference except pursuant to and as allowed by this Section 3.06. No member may withdraw from the Conference without providing the Conference prior written notice. Any and all withdrawals from the Conference shall be effective on July 1 of the year specified in the notice of withdrawal; provided, however, that the withdrawing member must afford the Conference notice at least fourteen months prior to the effective date of the withdrawal (i.e. no later than May 1 of the prior year). However, if a Member makes statements or takes actions that evidence intent of such Member to withdraw from the Conference either currently or in the future, such actions will be determined as notice of withdrawal by a three-fourths (3/4) vote of the remaining Members of the Board of Directors.In the event that a member attempts to leave the Conference without fully complying with the notice of withdrawal requirements set forth above, the Conference shall be entitled to equitable relief without having to prove actual injury, irreparable or otherwise, including, but not limited to, an injunction requiring the member to comply fully with the notice of withdrawal requirements set forth above, to fulfill all of its obligations as a Conference member, and to remain in the Conference until the earliest permissible date upon which the member could have, under the circumstances, withdrawn with full and proper prior notice as required above.
The members agree that any attempted withdrawal of a member without full compliance with the prior notice requirements set forth above would cause a disruption in the scheduling of competitions among the members for which there is no adequate remedy at law which would cause harm that would not in any respect be compensated by payment of a withdrawal fee, and for which, therefore, equitable relief is appropriate.
Some agreements aren’t enforceable, no matter what you write down.
For example many non-compete agreements are voided as against public policy because they are too broad or too onerous.
If I lost our bet on the Stanley Cup you can’t get garnish me or get a lien because it’s not a legal wager, a casino with sports book could enforce it.
In most jurisdictions specific performance is difficult to get because courts don’t like the idea of an unwilling party being forced to take actions, they’d rather reduce that to monetary damages. A court isn’t equipped to adjudicate the quality of specific performance so it’s held in disfavor.
You can’t get the relief unless a judge says you get it.
The Supreme Court has muddied the water even more with the conference having to go to each state to seek specific performance.
Based on case law in Arkansas, if you filed for injunctive relief to force Arkansas State to stay in the Sun Belt you probably wouldn’t get it. The Arkansas Supreme Court is aggressive about separation of powers. We have a constitutional amendment from like the 30’s that basically says once the state establishes an agency governed by a board the only control is the power of the purse, appoint new people when vacancies occur or sue them if they violate a state or federal constitutional provision or law.
Arkansas courts would hold where to field athletic teams is a decision of the Arkansas State University System Board of Trustees and unless the decision violates the state or federal constitution or laws, it is exclusively their decision and cannot be reviewed by anyone else.
If the SB3 have similar separation of powers doctrines an injunction forcing specific performance would not just be against public policy but unconstitutional under state law.
-
8 hours ago, Mean Green Matt said:
I’m sure there are provisions for making exceptions to the by-laws via agreement by the members.
No agreement required. Leave early it’s forego revenue and reimburse league for losses caused by early departure.
-
2
-
-
9 hours ago, keith said:
I'm sure there is a lot none of us know about in terms what's going on behind closed doors or in private conversations. The problem I see with respect to just getting them to pay penalties is that is not included as a remedy in the conference bylaws. The "remedy" documented is that any member wishing to depart the conference may only do so on July 1 of a given year provided that they first provide notice 14 months in advance of July 1. Basically, there is no remedy. You must abide by the rules set forth. I think someone here said "performance" (i.e. doing what you agreed to do) cannot be enforced as part of a contract dispute. I don't know if that's what this really is. The whole conference and conference membership agreement seems to be a little murky on the legal front.
Regardless, it seems that if the Conference leadership entered into a settlement negotiation, then it would be violating its own bylaws since there is no provision for that as a remedy. These are same bylaws all the member institutions are holding the Conference accountable for (as well as fellow members), so I'm not sure it's as cut and dry as everyone thinks it is.
This is wrong. The text provided on the LaTech board says schools leaving before 14 month notice must pay damages caused by leaving and the league may seek remedy for the damages up to and including injunction.
You and ask for injunctions but courts aren’t obligated to give them to you and the Supreme Court since those bylaws were drafted has said you can’t make a state a defendant in another state’s court and the 11th Amendment says you can’t make them a defendant in Federal Court.
SB3 have made it clear they are willing to pay said damages if they exist. CUSA has refused to comply with its bylaws to assess damages (I suspect because they know said damages are nominal).
Injunctive relief might have been viable if the schools had said today hey we want to shift early but they said that in December and anyone with reading comprehension knew it was possible if not likely back in October.
CUSA is the one not following the bylaws. The bylaws DO NOT say thou must stay 14 months. They say if you leave and give 14 month notice you merely forego league revenue for that time. If you leave sooner you forego revenue AND owe for damages caused.
-
2
-
-
12 hours ago, keith said:
If the conference by-laws are immaterial here then what if the conference parted ways with the three today and cancelled all remaining conference winter/spring sports schedules/championships with the three universities immediately?
The conference bylaws are not immaterial. They contemplate teams leaving early and payment of damages for any loss caused. The three have asked CUSA to estimate those damages so they can pay and go. It’s CUSA ignoring the bylaws not the SB3
-
3
-
-
Every single fan base in CUSA is convinced she was a bad commissioner and believes their school wanted rid of her.
Yet there seems to have never been a time when 8 schools said fire her. A 7-7 vote would have denied a contract extension yet that never seems to have happened either.
-
6
-
-
On 2/25/2022 at 3:54 PM, keith said:
With all the truckloads of cash they are going to get by joining the SBC a year early, they shouldn't have any problem paying the damages (or at least come out ahead or at worst breakeven...hopefully they've already done the math). One way or another it's going to come down to dollars. So again, I don't get it. They have immunity, just ignore whatever C-USA has to say, flip them the bird, tell the conference to pound sand or whatever and move on. Maybe it is the Sun Belt who is asking for the three to make a clean break without all the drama before they want to get involved.
The math ain’t hard man.
Sun Belt is going to give them equitable shares, it will be more than they were making in CUSA before they announced they were leaving. It absolutely will be more than they would make next year otherwise since CUSA is going to retain this year’s check and next years.
Absolutely no way at all that CUSA’s damages would be more than their share of Sun Belt money.
The estimate has been that two years of CUSA revenue loss is a cost of $3 million divide by 2 that’s $1.5 million per year.
So option 1.
Lose $1.5 million for 2021-22, lose $1.5 million for 2022-23 for total cost of $3 million.
Option 2.
Lose $1.5 million for 2021-22, get roughly $2 million in 2022-23 from Sun Belt, pay CUSA damages of say $500,000, pocket the same amount of money they would have received had they stayed in CUSA. Net cost of leaving $1.5 million
-
1
-
-
8 hours ago, keith said:
Thanks. Then I don't get why any of the three care one way or another what C-USA says or does. It seems they can just leave when they want to, not worry about any sort of exit fees and/or legal action that C-USA may or may not take. That seems like the path of least resistance. All the posturing and back and forth public squabbling is all theatre. What am I missing?
Because they know they are liable for damages caused. If TV doesn’t cut CDOA’s payment, then there may be no damages at all. If the payment is cut, then there are damages.
-
10 hours ago, keith said:
I'm no legal expert, but this would imply that Marshall University is part of the government of West Virginia as I thought sovereign immunity applied to the government not being sued without the consent of the government. I realize it's state supported, but does that make it part of the state government?
If they really have sovereign immunity then what do they care about and why would they bother entering into a legal dispute? They could do whatever they wanted to without worrying about any legal ramifications to their actions.
Does interstate commerce come into play here?
I don’t know precisely how West Virginia operates their colleges but most likely:
The state passed a law establishing the school
The state appropriates funds each year for its operation.
Some state actor (likely the Governor) is charged with appointing the members of a governing board that hires a chief executive for the school. The board approves an operating budget, major contracts, and approves major hires and promotions.
Absolutely an agency of the state.
-
On 2/23/2022 at 8:51 PM, GrandGreen said:
I doubt sovereign immunity applies. That doctrine is to protect individuals from being sued when acting on the behalf of the state within that state.
No. Sovereign immunity derives from the English common law principle that the King (or Queen) could not be sued in their own courts.
In US jurisprudence it means you cannot sue the state nor it’s agencies without their consent. You are thinking of qualified immunity which applies to the actions of individuals.
Basically the only way around sovereign immunity is a 1983 lawsuit where you allege a state actor violated your civil rights while acting under color of state law.
If a state employee runs over you in a state owned car while traveling to deliver copy paper to a branch office and kills you, your estate can sue for depriving you of your right to live while performing a state action.
-
On 2/21/2022 at 2:37 PM, keith said:
The argument of simply paying a penalty for leaving before the required 14-month/July 1 notice seems to be based on the premise of there is a price for everything and the old joke of now that we've established what you are, it's just a matter of negotiating the fee.
The problem for the 3 that want to leave early as I see it is the only specific remedies or equitable relief documented in the by-laws (at least the what has been made available) are:
"an injunction requiring the member to comply fully with the notice of withdrawal requirements set forth above, to fulfill all of its obligations as a Conference member, and to remain in the Conference until the earliest permissible date upon which the member could have, under the circumstances, withdrawn with full and proper prior notice as required above."
I'm no expert here and I'm sure there is probably enough wiggle room, but this seems fairly black and white to me. These three (or anyone wanting to leave early) should have known this and by becoming a member agreed to it. Heck, USM and Marshall probably had a hand in crafting the language exactly they way it is because they didn't want members leaving with limited notice. They just never imagined that the by-laws they wrote, voted on and accepted as a condition of membership would actually apply to them.
The relevant bylaw as posted on the Tech board contemplates that schools may wish to leave early, it contemplates that damages are to be paid for any harm caused and I’ve covered what potential damages might exist.
It further contemplates the possible remedies being damages and injunctive relief. The Supreme Court having swung hard right, in a decision written by Thomas in Franchise Tax Board v Hyatt that overturned Nevada v Hall held that states cannot be sued in the courts of another state. There is a very strong argument that none of the CUSA members that are public state universities can be sued for injunctive relief any place other than their home state.
That makes injunctive relief problematic from a jurisdictional standpoint problematic.
Beyond that, as a general principle (which varies by state) courts strongly frown on specific performance as a remedy.
If you agree to sell me the Honus Wagner baseball card and breach, I can probably get specific performance because I can’t get another one. A Willie Mays rookie card? Well you owe me the difference between the price you offered to sell it at and the price I had to pay to go buy one from another seller.
So going in knowing the principles of specific performance in the courts the conference couldn’t reasonably expect to get it unless fare more time critical.
Further there is a duty to mitigate.
If I own a contracting company building a bridge for the state and my contract has a performance penalty if I’m late, and we are preparing for a concrete pour of 1000 yards on April 3 and you are my sub to do the pour and call me today and say I can’t do it and yell at you and say I gotta contract I expect you to be here and hang up and on April 3 you don’t show up and I find another sub but they can’t do it until April 10 and charge me more for it being a rush and that delay results in my being two days later handing over the bridge and penalized $10,000 per day.
I sue you. Claiming the higher cost of the pour and the late penalty. The first thing your attorney is going to say is I should have mitigated damages. If I had called concrete subs I probably would have found one willing to do it close to your price instead of the rush price and my failure to mitigate by waiting until you didn’t show is why I got hit with the late penalty and you will argue (likely successfully) that you don’t owe the late penalty and only a reasonable amount for the concrete.
Likewise if I hung up from your call and ran to the courthouse and sued you for specific performance the court is likely going to say, call some subs get quotes and order you to pay the difference and send me on my way.
EDIT
Forgot an actual case. Louisville had a football contract with one of the ACC privates, I think it was Duke, and Duke backed out. Louisville sued for specific performance because they were an AQ (BCS era, Louisville was CUSA) and Duke’s counter was we suck in football and any opponent is a suitable replacement so we owe the cancellation fee and nothing else and the judge agreed.
-
1
-
2
-
1
-
-
On 2/21/2022 at 9:26 AM, Wag Tag said:
The first sentence sounds like advice from an attorney. $$$$$$$
And I’m not even charging
-
1
-
3
-
-
Everyone seems to think breaking a contract is some massive thing. It happens multiple times per day all across the country.
SB3 do see Sun Belt as a more attractive destination. USM and Marshall approached Sun Belt before last football season. SBC has finished ahead of CUSA in CFP performance pool distributions. Is on the ESPN platform across the board and bringing in more TV money than CUSA. Some people think it’s still a decade ago and CUSA isn’t the new WAC.
The three owe damages for what CUSA will lose in revenue. They won’t impact NCAA units or CFP distribution. Unlikely any drop or notable drop in sponsorship income. The only loss would be if the TV partners want to pay less. ESPN isn’t likely asking for a cut because they want this to go nice and smooth. So any lost revenue is from CBSSN and Stadium, the latter being a scrappy underdog searching for an audience may well want a fee cut. CBSSN is part of a major conglomerate they will do whatever their value voodoo doctors say.
If it were pro rate we are talking maybe $400,000 a head but that seem unlikely given that is what Army paid to get out early quite a few years ago. ODU probably is valued below the median for the league and Marshall and USM above the median. Straight pro rata each would owe 7.1% of the value of the contracts for the year, a combined 21.4%. If TV drops 21.4% of say $7 million that’s $500,000 per head. Pretty manageable.
If you are CUSA and the contract is $7 million and TV wants to cut the payment say 40% for losing the three that is just over $933,333 a head. Once the payment amount emerges and it becomes obvious the three represented 40% of CUSA’s TV value, that’s a big PR blow.
So do you take the PR blow that losing the three represents more than losing 3/14ths of your value or do you avoid that with tough talk and trying to make them play? It’s one thing to take a value hit losing teams to AAC, but when the conference hasn’t sold itself as anything more than a step up for Sun Belt losing more than 3/14ths of value to Sun Belt is major egg on your face since programs of value chose Sun Belt over CUSA.
The gossip monger claim La Tech is driving the bus on the fight fight fight strategy. I doubt FIU gives a crap or their president spends much time thinking about athletics and would roll with the majority. MTSU? Who knows they blew up WKU’s plan to go to MAC to get the enhanced 2022-23 and 2023-24 payments and entry payments. They might be inclined to support a nice payout, especially since they paid to get out of SBC early. WKU? Who knows where their head is after pitching to Sun Belt and MAC and getting jilted. Vengeance of forced play might suit them. UTEP who knows with them.
If courts rule that Tax Board v. Hyatt applies, CUSA is going to have to travel to state courts in each school’s county to ask for an order forcing the team to play in CUSA. Could be wild as all get out if one or two courts grant injunction and one or two refus.
-
4
-
1
-
3
-
-
- Popular Post
- Popular Post
I think some of the mad dash to sign kids to NIL deals is going to fade. Lot of business owners are going to look at the numbers and conclude the deals just don’t produce a sufficient return on investment. So some will quit doing them. Then you are left with a few legit deals and a lot of some successful booster throwing the money to try to win.
That’s where things get scary. What if Mr. Booster wants the 5-11 QB from his kid’s school who racked up big numbers because of the system the coach runs? Coach going to sign the kid because if he doesn’t Mr Booster might pout and not help land the guys they really want? What happens if a stud player makes Mr Booster mad and he doesn’t want to keep the money train going because he thinks the kid is disrespectful or arrogant? I suspect it’s hello portal.
The kids who build big followings on Twitter, Instagram, TikTok and YouTube can finally cash in. That’s a good thing.
Truth is few college players have any notable NIL value. Look at the NBA. We all know that there are guys with massive contracts with shoe companies and whatever, but there’s quite a few starters with pretty modest deals and lot of guys in the NBA their endorsement contract is nothing more than wear our shoes and we will give you X dollars store credit to buy our merchandise. The 11th and 12th guys on a typical roster don’t have a deal at all.
One of the first NIL deals at AState was a local pizza place signing the #2 RB which told me the owner is a fan because every game the board is loaded with why isn’t he getting more carries posts. They went for the fan favorite 🙂
-
4
-
2
-
2
-
On 2/2/2022 at 6:48 PM, NTSU52 said:
Cause maybe some of us want to keep up with Mean Green coaching alum, and are glad to see Dodge enjoy success after he struggled during his stint here? Geez dude don't be salty.
We keep up with our former coaches. Some of it’s boring like Steve Roberts being director of Arkansas Activities Association (governing body for high school sports in the state). Some of it wildly entertaining like Freeze’s time at Ole Miss and Harsin vs Auburn boosters. Odd ball was John Bobo who last I heard had taken a junior high PE teaching job to stay around his kid.
Thing I’ve found is that guys who get a crack at being FBS head coaches tend to be pretty exceptional dudes. They might not be cut out for running an FBS program but they tend to be interesting people who are well above the median person. Sort of neat seeing what they do after.
-
5 hours ago, keith said:
According to SouthernMiss..."The University first advised Conference USA in early December 2021 of the University's plans to terminate its membership in June 2022."
Unless there has been some sort of rip in the space-time continuum in Hattiesburg, they missed their obligation by at least 8 months. If the existing wording of how separation will be handled is vague, it was probably vague (and intentionally so) when they became part of the conference. If they didn't like the vagueness, then why didn't they insist that it be changed at that time? What's not vague is the 14-month notice requirement.
I think it is unreasonable to ask the conference (any conference) to work out all the possible combinations and permutations of scheduling on the *possibility* (or even the stated "intent") of 1, 2, 3 or (insert your number here) institutions that may or may not leave prior to a stipulated notice and termination date - either by mutual agreement or by simply walking away. This is precisely the reason the 14-month requirement is in the by-laws.
For everyone that hates C-USA and thinks this is great that these three are screwing the conference, they are not. They are screwing all the universities that are going to be around for the 2022-2023 season.
I feel that the Sun Belt may be culpable here as well. By accepting the invitations knowing that they have not been released from their existing obligations to C-USA they have interfered. BTW, did the Sun Belt develop alternative schedules that both included or excluded 1, 2 or all 3?
Sun Belt hasn’t released a schedule. Rumor mill says SBC did schedules for just the 10, the 10 plus JMU, the 10 plus ODU, USM, Marshall, and the 10 plus all four.
I am failing to see what “screwing” is taking place.
An 8 game slate with 11 teams isn’t hard to draft. The Big Ten did it for decades.
The only potential change in revenue is if the TV partners cut their distribution but that is resolved by the three paying the damages. It isn’t going to cost UNT anything to replace USM with a different CUSA team on the various schedules.
-
3
-
-
4 hours ago, PlummMeanGreen said:
And the school who said each of their offensive linemen would get $50K was the one down in Austin. (I bet DKR is turning over in his grave with what’s going on in todays NCAA).
👍Thanks, Arkstfan, you’ve come thru again. I had misconceptions of NIL that you have totally cleared up. Thanks.
Still…isn’t it obvious that about 25 schools in the P5 group benefit & the rest could hang out to dry? And then the G5?😪🦅
I don’t sweat the P5 doing it because it’s not like we were getting the recruits that the folks down in Austin were signing.
The G5 worry is someone has a sugar daddy with money to burn who starts spending $20,000 a head for endorsements of their business.
Here’s a fun twist to NIL. Most foreign players can’t sign them because they are on student visas that prohibit working.
-
2
-
-
- Popular Post
- Popular Post
NIL is not supposed to be paid by the school. If the school pays it, the school is now an employer and subject to state wage and hour regulations, FICA and Medicare and income tax withholding. They would need to provide worker’s compensation coverage.
Right now the NCAA has a cluster on it’s hands because they’ve failed to come up with a regulator scheme that lays out the rules.
A prime example is the boast one school made that some group was going to pay $50,000 to each offensive lineman.
Common sense tells us that is not compensation based on the player’s name, image, or likeness because the name, image, and likeness are unknown. That’s not an NIL offer, that is an offer to play football for compensation and should be treated as such. That’s straight professionalism.
Until these outlaw deals arrived players got “full cost of attendance” the school financial aid office calculates the cost of tuition, books, fees, room, board, and incidentals such as travel, laundry and such.
Schools are not supposed to provide benefits beyond the full cost of attendance in headcount sports like football. In equivalency sports (such as track), the student can either receive full cost (ie. a full ride) or a partial scholarship. I think the minimum in Division I is either 1/4th or 1/3rd of full-cost in an equivalency sport.
Players are required to report their deals to the school and I presume the school to the NCAA. The school can limit use of school trademarks and restrict certain categories of advertising. The school can filter and compile offers for players.
NIL is in theory a good thing for players. If fans want a Joe Smith jersey, then Joe ought to get some compensation. If someone wants to Joe to advertise sunglasses, pizza, or shoes, more power to him.
Remember Jeremy Bloom? He was rated the #1 moguls skier in the world and had endorsement income (though I think it was mostly in merchandise with not a lot of cash) and wanted to play football at Colorado. The NCAA said you can’t have that income and endorse products while playing football. Bloom didn’t live up to his rating and finished 9th in the Olympics and that same day the NCAA ruled that he couldn’t keep the money and stuff and endorse ski products based on his skiing ability while playing NCAA football. It was a ridiculous decision. NCAA prevailed and he lost his last two years of eligibility for football. The courts upheld the NCAA saying yeah we get it that this is legit income based on skiing but if we rule in your favor, the whole thing will become a sham with players being paid to play football under the guise of being paid for something else.
The NCAA and schools have to find a way to not interfere with legitimate deals while heading off contracts based solely on paying the kid to play football.
-
7
-
3
-
2
-
15 hours ago, keith said:
Hahahah...no, not confused and I don't think anyone here is suffering any form of buyer's remorse.
What I hear is, "the Conference won't negotiate with us." My take is the Conference is saying there is nothing to negotiate and these three schools don't like that so are walking away unilaterally. Would they feel better if they sat across a table and heard, "there is no price the Conference would entertain that would allow for early departure. You are bound by the 14-month notice you accepted and agreed to. Meeting adjourned." How is that any different? Or does it "open a door" for binding arbitration or something?
Just because two parties "negotiate" doesn't mean the outcome will be any different. Would the conference negotiate with each university independently or as a group? What if there is an acceptable price the Conference would accept for early departure and only 1 of the 3 was willing/capable to pay?
I don't think there is any love-loss here for the current C-USA leadership. When the dominos began to fall with the latest rearrangement of the deck chairs kicked off by Texas/OU and the SEC, there was a general timeline set for everything to fall into place. Everyone probably would have liked it to happen immediately, but that's not the way it works and with such a massive reorganization it was going to take some time to get everything in place.
If I'm being completely selfish I really only care about what this means for UNT's schedule next season. Will we have to replace two games with FCS opponents? Will we lose a home game? I haven't looked at other conference games affected. Maybe we just load up with other conference mates that also have holes in their schedules now even if it means playing someone twice?
This isn’t a Middle Earth quest where good and evil face off, or there are do-gooders vs baddies.
Contracts are and partnership agreements are designed to deal with an agreement coming to an end.
CUSA’s agreement from what has been posted on the Tech board is vague on the matter of how to deal with someone leaving early. It says the league can recover damages but does not have a liquidated damages clause (ie. We are going to save the problem of calculating damages by just agreeing it is X dollar amount). That’s not good planning but it is what is. It does say the league can ask for injunctive relief, essentially specific performance.
The problem is courts normally don’t like to force people to go do something they don’t want to do, they prefer to assess monetary damages and get the file marked closed rather than have the specter of having to revisit if the parties disagree on how well the forced performance is being done.
The hitch for CUSA is when the league gets the vapors explaining how it’s too late, they can’t adjust the schedule, they are going to be asked, “Did the schools tell you they wanted to leave early?” Then the next question is “Knowing their intention, why didn’t you prepare an 8 game schedule for 11 teams in the event they went forward?”
It’s no different from the (fairly) well known case where a guy got metal in his eye and needed two surgeries, doctors got his distance vision back close to normal but his near vision required corrective lenses (glasses). The guy refused to get glasses and part of his claim was he couldn’t perform work requiring near vision and had lost a couple jobs because of that poor vision. Court held that buying glasses wasn’t unreasonable. He could get damages for the cost of them but couldn’t collect damages because of he couldn’t work when he refused to mitigate.
CUSA had no obligation to negotiate release terms. That’s simply a norm, customary behavior. CUSA does not have to behave like other conference or even as it has in the past such as the early release of Army.
What CUSA did have an obligation to do is take another hour and prepare a back-up schedule for 11 teams in the event the three went forward with departing and it is unlikely a judge will be sympathetic to CUSA for any mayhem caused by failing to mitigate by preparing a second schedule.
CUSA can sue and try to prove the early departure cost the league X dollars in revenue or they can simply contact the schools directly and say we think you are causing X dollars in damages by leaving early and try to sort it out rather than “maybe” going for the moon shot of an injunction.
If CUSA goes the injunctive route, CUSA will file suit in state court in Texas, most likely each school will file suit in their own state seeking declaratory judgment that CUSA and a state court in Texas cannot force an agency of the state to perform acts that the governing body of the agency said to not do (ie. Play in CUSA instead of Sun Belt).
Going the court route is not smart unless the schools refuse to pay reasonable damages because it’s going to be a morass that lasts into 2023 or longer.
-
6
-
1
-
-
8 hours ago, keith said:
But the conference isn't dying. It is certainly changing, but not dying. Everyone else is living up to their obligations except these three. They wanted out earlier than the required 14-month notice and C-USA said, no. They didn't like that answer, so like spoiled brats are taking their ball and going home and causing a mess for everyone (including us). The three schools and the Sun Belt by taking them in early are the offending party here, not C-USA IMHO. C-USA is living up to its obligations. These three are not.
You are confused.
They are all willing to live up to their obligations to CUSA by paying financial compensation to leave early. They aren’t asking for a free pass.
Back when FAU and MTSU were invited to CUSA, this board would have been enraged had Sun Belt refused to negotiate an early departure. Had AAC offered you a slot next year, you would be screaming your head off if CUSA refused to negotiate.
FIU left the Atlantic Sun a year early to join the Sun Belt and they paid the ASun in return for that just as FAU and MTSU did leaving Sun Belt. Sun Belt negotiated an early release for UCF.
Army paid CUSA $400,000 to leave a year early.
The only thing different here is CUSA violating the norms by refusing to negotiate a price for early departure.
Frankly I’m not sure if y’all are in love with CUSA and having second thoughts about leaving or are just jealous you can’t go out early too.
-
2
-
1
-
1
-
-
10 hours ago, greenminer said:
Not sure if you caught this, but I think what ArkStFan is trying to say is the fee is paid but not an up-front cash payment. It is money lost because you forfeit your right to future conference payouts (like the CUSA NCAA March Madness units)
Exactly.
A conference is an equity partnership. Each member gets one share of equity in the league. When Bill Gates retired, he retained his equity in Microsoft in the form of stock and is entitled to the dividends, voting rights, and hopefully for him gain in stock prices in the future. With a conference, if you leave you give your equity (stock) in the conference back to the league.
If UNT goes to the Sweet 16 this year, you won’t see any of the money other than the NCAA travel reimbursement because you’ve turned in your stock and CUSA will collect the three units you contributed for the next six years.
CUSA will snag roughly $840,000 from your run in the 2023-24 NCAA distribution (runs a year behind) and for each of the five years following. A $5 million income stream you have a 1/14th interest in (probably more, most leagues bonus some of that to the school earning it) but you traded in your equity and right to future payments to depart the partnership.
-
1
-
-
11 hours ago, Wag Tag said:
If you are leaving now what forego revenue are you giving up? Makes no sense. If anything you are going to forego revenue to join a conference upgrade.
CUSA has an income stream for various sources
NCAA Units. Will early departure lower that? No.
CFB distribution. Will early departure lower that? Eh that’s pretty speculative. CUSA has been running 4th in the performance pool so coin flip as to whether that stays or changes. CUSA will still have 11 members so will get the base $10 million(ish)
The only change to the revenue stream is whether or not the TV partners cut the distribution if the three leave. If they cut it, then it’s all real simple, they owe for the cut in 2022-23 distributions.
Imagine you and 13 friends own a business as partners. The business has a pretty stable income stream (say lot of money tied up bonds). The partnership agreement says if you leave for a competitor you work for a year without a partnership distribution and forego any future distributions because you forfeit your equity.
What happens if you quit to go to work for a competitor, you work for one year and lose your equity and right to partnership distributions in perpetuity. Now what if your offer is such that you want to forego the year of work? They can sue you and ask for specific performance and make you stay, but courts in general don’t like specific performance unless dealing with something unique with no substitute. Say you are buying a Honus Wagner baseball card or a Monet painting. Hard to substitute if the seller cannot deliver. Otherwise you go to money damages. What are the money damages? Well there is the value of the home games schools would lose except when you deal with money damages, you have a duty to mitigate. If you make an 8 game slate out of the 11 members there’s no home gate revenue lost and that home gate isn’t shared so CUSA doesn’t have a dog in that fight. The individual schools would but then if say UNT sues USM, USM is going to sue CUSA and ask them to be joined as a necessary party because they failed to mitigate by adjusting the schedule thus carrying some liability to UNT as well.
The only logical monetary damages would be the loss of revenue but as noted CUSA won’t lose NCAA unit revenue, won’t lose base CFB revenue, performance pool is speculative, loss of attendance at CUSA championship events? Speculative. TV and sponsorship income is it. If the Bank of Norfolk is a CUSA sponsor and drops it a year early that we can assign value to. If CBSSN cuts the payment, we can assign value to that.
The damages just aren’t likely to be a lot.
The only difference in UNT and USM is if CUSA revenue declines because UNT leaves, that’s tough noogies for CUSA since you are riding it out. USM would owe 1/3rd of what CUSA loses in revenue in 2022-23 that resulted from the departure.
Well 6 members of CUSA don’t consider it so unique and valuable that they
-
1
-
-
4 hours ago, Wag Tag said:
I understand the SB entrance fee, but to think there is not an exit fee doesn’t make sense.
The fee is you forego a payment from CUSA for the 2021-22 and 2022-23 seasons and all future seasons because you left.
The three would rather go to Sun Belt, get paid for 2022-23 and pay for that privilege in addition to not taking a share of CUSA revenue.
-
2
-
-
2 hours ago, greengal said:
Agree but they did sign a contract and should have to pay the penalties if they are bailing on us early?
Exactly. They want to forego sitting around without league revenue for two years. They WANT to pay a financial penalty in lieu of playing 2022-23 in CUSA with CUSA keeping their cut of revenue
-
1
-
-
3 minutes ago, Wag Tag said:
Do you have a source on this? Everything I’m reading they pay $3m. I have posted 2 from separate sources.
An article saying “about” $3 million ain’t saying it’s three million. Tech board has bylaws. You forfeit your cut of revenue. You don’t pay a fixed amount.
-
1
-
Sun Belt schedule includes Marshall, ODU, USM
in Mean Green Football
Posted
Meant to add I remember meeting for a game when I was in Dallas for Sun Belt basketball officials conference. I was doing a presentation on tax issues for them as independent contractors and since I was in town caught up with Harry to go to the game. But I’d not be able to pick ya out of a line up but then again I’m horrid at matching names and faces. Once ran into a woman at a store talked to her for a bit and soon as she left asked me wife who the hell was that. Girl I had gone to high school with at a school of 350 students K12.
Yall were playing the Cajuns and it was one awful football game. Remember Cajuns scored on one play where QB heaved it as hard as he could. WR had blasted past UNT secondary, he saw the ball was short. Came back and still had five yards on the nearest defender. Cajun defense wasn’t any better.
If Preds, Cubs, Broncos or Sporting KC are in the area some time when y’all are home and I don’t have a home football game I’m going to check out the new stadium.