There is little debate about the enforcement of the Grant of Rights. (Almost) everyone agrees that GoRs are enforceable where one entity leases its rights to a media partner on behalf of the conference. The concept itself has been around a long time and has always been enforceable when both parties are upholding their end of the bargain.
However, the reason there's debate is because the conferences have made a distinct forfeiture clause, separate from the Grant of Rights, trying to invalidate compensation for the rights (which was done since the Grant of Rights was not executed to protect the conference, rather as a condition of execution with the TV partners). In the recitals, from the Amended and Restated Grant of Rights Agreement, this is confirmed where it states:
The enforcement of the GoR is really not up for debate. If a league member where to leave and the conference would continue paying for the rights as happens in every other walk of life that uses a GoR, it would be difficult to get out of. The only reason this is an issue is because unlike the music industry and publishing industry, these conferences are going to attempt to skirt actually paying for the rights they're being granted by member schools if they leave, despite still getting money from the media partners. The reason, of course, is because the conferences know that if the GoR was operating as normal, it would not do anything to stop schools from leaving since that isn't the purpose of the document. So it's really not the Grant of Rights that would be challenged, but rather the forfeiture clauses and whether they would be in breach of the GoR itself.
Understand your points, Kyle. But here is my question. I would assume the forfeiture clause is in all of the GORs. If so, a team challenging the enforceability of this clause in one conference GOR, while at the same time intending to go to another conference and sign a GOR with a similar enforcement clause, would have a problematic issue, I think. The departing conference would claim that the departing school was not litigating in good faith (the "Clean Hands" doctrine). This question does not exist if the new conference does not have a GOR. However, if the new conference does have a GOR with this forfeiture clause, then they are essentially litigating against their own arrangements, IMO.
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