OT: Florida State to sue ACC over GOR

[jostar1]

Florida State wants dismissal of ACC lawsuit in North Carolina

FSU argues, in part, that its trustees never signed the grant of rights document at the center of this dispute.

By
Matt Baker Times staff

Florida State has asked a North Carolina court to dismiss the ACC’s lawsuit against the university — the latest legal step as the Seminoles explore a potential exit from their conference.

Florida State called the ACC’s preemptive suit “an admitted ‘race to the courthouse’ to secure what it hoped would prove to be a more favorable forum.” FSU contends that legal race came at a cost: the ACC’s members never took the required vote to approve the suit against the ’Noles. In the motion and corresponding brief, FSU also said the ACC sued Florida State “before an actual or justiciable controversy arose” — it was all theoretical until FSU’s trustees approved and filed their suit in Leon County Circuit Court.

Florida State’s most interesting argument focuses on the ACC’s grant of rights — the document at the center of this potential half-a-billion-dollar dispute. The ACC contends that Florida State (and every other member) “knowingly and voluntarily” granted the “irrevocable” TV rights to their home games to the conference. The conference then sold them to ESPN and passed the funds back to FSU and its peers.

FSU’s latest filing argues that the school’s trustees never signed or approved the grant of rights; it was only signed by the university president. That’s important because, according to FSU, its board is the only entity with the legal authority to “contract and be contracted with.”

Florida State wants dismissal of ACC lawsuit in North Carolina

FSU argues, in part, that its trustees never signed the grant of rights document at the center of this dispute.

www.tampabay.com

 

[Rufus]

The more we learn, the better the case for Florida State.

 

[FfldCntyFan]

FSU’s latest filing argues that the school’s trustees never signed or approved the grant of rights; it was only signed by the university president. That’s important because, according to FSU, its board is the only entity with the legal authority to “contract and be contracted with.”

Florida State wants dismissal of ACC lawsuit in North Carolina

FSU argues, in part, that its trustees never signed the grant of rights document at the center of this dispute.

www.tampabay.com

It may be true that the trustees needed to approve the GOR before the president could sign but that appears to be more of an issue between the school and the then president.

Also, if the school believed the agreement was signed by someone without the authority to do so (this does happen on occasion), why didn't FSU bring this up shortly after the GOR was signed?

 

[CL82]

The more we learn, the better the case for Florida State.

When did the board become existence of the GOR? When were they aware that the president signed it on their behalf? Did the president take any other actions which were arguably the boards exclusive domain? Did the board ever indicate that it was aware of the GOR? What actions, if any, did the board take to repudiate the GOR?

 

[billybud]

It may be true that the trustees needed to approve the GOR before the president could sign but that appears to be more of an issue between the school and the then president.

Also, if the school believed the agreement was signed by someone without the authority to do so (this does happen on occasion), why didn't FSU bring this up shortly after the GOR was signed?

Well...there is the matter of Florida law...which states that it is the BOT that must sign as the only legal authority to contract and be contracted with..."a. Each board of trustees constitutes the contracting agent of the university".

and thus...if a state institution did not follow the legal requirement to bind the university, in the eyes of Florida, it may not be valid. And which GOR ? The question has been that the 2016 extension was not brought to the BOT as required. A search of BOT minutes and agendas has shown no trace of the mention of the 2016 extension.

The venue infighting is important...if this goes where FSU filed their suit (2nd district in Florida), more items will play in re Florida law.

 

[billybud]

I think the ACC, in their rush to file a suit, made an error....the ACC bylaws require a majority "yes" vote of member institutions to authorize the conference to enter a suit...no vote equals a violation of the bylaws.

 

[billybud]

This may be precedent...

Although the Legislature has explicitly waived sovereign immunity in tort for personal injury, wrongful death, and loss or injury of property, it has not done so for contract claims. Rather, in Pan–Am, the Florida Supreme Court found an implied waiver of sovereign immunity in contract on the premise that because the Legislature authorized state entities to enter into contracts, it must have intended those contracts to be valid and binding on both parties. In recognizing this exception, however, the court cautioned that the waiver of sovereign immunity was “applicable only to suits on express, written contracts into which the state agency has statutory authority to enter.” Id. at 6. It seems axiomatic that this waiver only applies if the written contract is properly approved by or on behalf of the governmental entity sought to be held liable for performance of the contact.

Precedence...

Finally, sovereign immunity would appear to serve as an independent bar to enforcement of a purported contract against a governmental entity that was never approved by that entity. As explained in Pan-Am Tobacco Corp. v. Department of Corrections, 471 So.2d 4, 4 (Fla. 1984), "n Florida, sovereign immunity is the rule, rather than the exception. . . ." Although the Legislature has explicitly waived sovereign immunity in tort for personal injury, wrongful death, and loss or injury of property, it has not done so for contract claims. Rather, in Pan-Am, the Florida Supreme Court found an implied waiver of sovereign immunity in contract on the premise that because the Legislature authorized state entities to enter into contracts, it must have intended those contracts to be valid and binding on both parties. In recognizing this exception, however, the court cautioned that the waiver of sovereign immunity was "applicable only to suits on express, written contracts into which the state agency has statutory authority to enter." Id. at 6. It seems axiomatic that this waiver only applies if the written contract is properly approved by or on behalf of the governmental entity sought to be held liable for performance of the contact. Cf. Frankenmuth Mut. Ins. Co. v. Magaha, 769 So.2d 1012 (Fla. 2000) (holding that contract entered by county comptroller could not bind county unless also approved by the board of county commissioners); County of Brevard v. Miorelli Eng'g, Inc., 703 So.2d 1049, 1051 (Fla. 1997) ("One final point must be addressed. MEI asserts that the County waived the written change order requirement by directing work changes without following its own formalities. We decline to hold that the doctrines of waiver and estoppel can be used to defeat the express terms of the contract. Otherwise, the requirement of Pan-Am that there first be an express written contract before there can be a waiver of sovereign immunity would be an empty one. An unscrupulous or careless government employee could alter or waive the terms of the written agreement, thereby leaving the sovereign with potentially unlimited liability."); Broward County v. Conner, 660 So.2d 288 (Fla. 4th DCA 1995) (holding county attorney "could not bind the county to specific performance of [a] contract in the absence of proper commission approval"); Town of Indian River Shores v. Coll, 378 So.2d 53 (Fla. 4th DCA 1979) (holding contract entered by mayor was ultra vires and unenforceable against city when not properly approved by city council).

 

[FfldCntyFan]

Well...there is the matter of Florida law...which states that it is the BOT that must sign as the only legal authority to contract and be contracted with..."a. Each board of trustees constitutes the contracting agent of the university".

and thus...if a state institution did not follow the legal requirement to bind the university, in the eyes of Florida, it may not be valid. And which GOR ? The question has been that the 2016 extension was not brought to the BOT as required. A search of BOT minutes and agendas has shown no trace of the mention of the 2016 extension.

The venue infighting is important...if this goes where FSU filed their suit (2nd district in Florida), more items will play in re Florida law.

When was the GOR signed?

Why wasn't this action taken shortly after discovery of the signature by a non-authorized party?

 

[Ha Who]

When was the GOR signed?

Why wasn't this action taken shortly after discovery of the signature by a non-authorized party?

It is Florida

 

[billybud]

When was the GOR signed?

Why wasn't this action taken shortly after discovery of the signature by a non-authorized party?

Does it matter...Is it germane to the ultra vires concept ?

Right now...another unanswered question in this vein is the ACC Commissioner signing an extension of the ESPN contract without notice to the programs nor vote...

 

[billybud]

Hiding documents from programs, not allowing copies to be sent out to schools, treating contracts as "trade secrets"...all come home to roost.

 

[Rufus]

Right now...another unanswered question in this vein is the ACC Commissioner signing an extension of the ESPN contract without notice to the programs nor vote...

Exactly! This is key! I mentioned this before, but every time I do, someone on here grills me that I need to provide proof!

 

[billybud]

Several of us, back in the day a while, requested the GOR from FSU under FOIA...were told by FSU that FSU had no copy.

The BOT was scheduled to have Swofford cover the GOR back in 2013 on March 7...but that meeting would have put the GOR in the realm of public information under Florida statutes. Swofford came to FSU the day before and talked to individual BOT members but the morning of the 7th, the BOT aganda was changed and discussion of the ACC was removed. No discussion, no vote, no copy of the GOR.

it is difficult to have contracts with the governing body, the BOT, when they never allowed to see the GOR...never allowed to see the media contract.

 

[The Yakk]

It may be true that the trustees needed to approve the GOR before the president could sign but that appears to be more of an issue between the school and the then president.

Also, if the school believed the agreement was signed by someone without the authority to do so (this does happen on occasion), why didn't FSU bring this up shortly after the GOR was signed?

Because that would have interfered with FSU's ability to cash the checks.

You are correct, this is an internal governance issue for FSU. If the President did not have the authority to sign the GOR then I guess he exceeded his authority. If I do that at work, I will get fired.

But who cares? An officer of FSU signed the GOR, so the university is bound by the GOR.

I have no idea who will win this, but this latest weasely argument from FSU is not going to get them anywhere.

 

[billybud]

Nope. The Florida courts, as I have provided, find that a contract with a state institution is not binding if the appropriate governing body has not signed.

 

[billybud]

When a County Comptroller signed a contract for the county, the court found it to not bind the county

This may be precedent...

Although the Legislature has explicitly waived sovereign immunity in tort for personal injury, wrongful death, and loss or injury of property, it has not done so for contract claims. Rather, in Pan–Am, the Florida Supreme Court found an implied waiver of sovereign immunity in contract on the premise that because the Legislature authorized state entities to enter into contracts, it must have intended those contracts to be valid and binding on both parties. In recognizing this exception, however, the court cautioned that the waiver of sovereign immunity was “applicable only to suits on express, written contracts into which the state agency has statutory authority to enter.” Id. at 6. It seems axiomatic that this waiver only applies if the written contract is properly approved by or on behalf of the governmental entity sought to be held liable for performance of the contact.

Precedence...

Finally, sovereign immunity would appear to serve as an independent bar to enforcement of a purported contract against a governmental entity that was never approved by that entity. As explained in Pan-Am Tobacco Corp. v. Department of Corrections, 471 So.2d 4, 4 (Fla. 1984), "n Florida, sovereign immunity is the rule, rather than the exception. . . ." Although the Legislature has explicitly waived sovereign immunity in tort for personal injury, wrongful death, and loss or injury of property, it has not done so for contract claims. Rather, in Pan-Am, the Florida Supreme Court found an implied waiver of sovereign immunity in contract on the premise that because the Legislature authorized state entities to enter into contracts, it must have intended those contracts to be valid and binding on both parties. In recognizing this exception, however, the court cautioned that the waiver of sovereign immunity was "applicable only to suits on express, written contracts into which the state agency has statutory authority to enter." Id. at 6. It seems axiomatic that this waiver only applies if the written contract is properly approved by or on behalf of the governmental entity sought to be held liable for performance of the contact. Cf. Frankenmuth Mut. Ins. Co. v. Magaha, 769 So.2d 1012 (Fla. 2000) (holding that contract entered by county comptroller could not bind county unless also approved by the board of county commissioners); County of Brevard v. Miorelli Eng'g, Inc., 703 So.2d 1049, 1051 (Fla. 1997) ("One final point must be addressed. MEI asserts that the County waived the written change order requirement by directing work changes without following its own formalities. We decline to hold that the doctrines of waiver and estoppel can be used to defeat the express terms of the contract. Otherwise, the requirement of Pan-Am that there first be an express written contract before there can be a waiver of sovereign immunity would be an empty one. An unscrupulous or careless government employee could alter or waive the terms of the written agreement, thereby leaving the sovereign with potentially unlimited liability."); Broward County v. Conner, 660 So.2d 288 (Fla. 4th DCA 1995) (holding county attorney "could not bind the county to specific performance of [a] contract in the absence of proper commission approval"); Town of Indian River Shores v. Coll, 378 So.2d 53 (Fla. 4th DCA 1979) (holding contract entered by mayor was ultra vires and unenforceable against city when not properly approved by city council).

there is a legal concept, ultra vires, that means that someone without authority may not bind in contract.

 

[billybud]

All of this is maneuvering towards a negotiated settlement. The ACC/ESPN had a head start trying this in the court of public opinion. FSU folks countered. Discovery should be interesting. Can you believe that the ACC kept the ESPN contract a secret. Unviewable. A trade secret. No one knew that ESPN could opt out in 2027.

 

[billybud]

And the ACC has filed to the court to seal the certain materials, specifically the ESPN contract.

 

[FfldCntyFan]

Does it matter...Is it germane to the ultra vires concept ?

Right now...another unanswered question in this vein is the ACC Commissioner signing an extension of the ESPN contract without notice to the programs nor vote...

It could easily be interpreted as constructive acceptance of the GOR terms.

Over the four decades I've spent in the corporate world I've seen many instances someone who did not have authority to sign an agreement signed on behalf of the company that employed him or her (have seen this from both sides). Normally the sooner a company responds, the better their chances of a positive outcome but even with this, there is some agreed upon settlement to break the deal (and a few times I've seen someone lose their job because of the issue).

It appears that you believe this is some kind of get out of jail free card, that FSU was allowed to keep in their back pocket until they decided it was time to utilize it. I doubt many courts would see it that way. It also appears that FSU is hoping that a favorable venue (case heard in Florida) will lead the court weigh what may be best for a state school above the spirit of contract law.

 

[CTFAN4LIFE]

Would FSU purposely had only their President sign the GOR, leaving them a potential "out" if/when they wanted to try to get out?

 

[Pat125]

Would FSU purposely had only their President sign the GOR, leaving them a potential "out" if/when they wanted to try to get out?

Exactly. Either Florida St’s BOT is admitting they are either corrupt or grossly incompetent to allow themselves to be a party to an agreement they allegedly opposed for eight years. And shameless for anyone to be an apologist for their duplicity and/or stupidity.

In any case, it’s about time for Florida St. and the ACC to settle for $275 million and call it a day.

 

[John]

Hiding documents from programs, not allowing copies to be sent out to schools, treating contracts as "trade secrets"...all come home to roost.

Someone was holding a gun to your heads when you agreed? Love the well-timed faux outrage down in Tallahassee.

 

[billybud]

Someone was holding a gun to your heads when you agreed? Love the well-timed faux outrage down in Tallahassee.

It's all drama...courtroom style...

There will be a settlement..

 

[billybud]

Bob Thompson...
Retired President of Fox Sports Networks and BTN Co-founder. Principal, Thompson Sports Group LLC.

Had a Twitter Post...now taken down...

Just wondering why it took so long for an ACC school to find a hole in the ACC/ESPN agreement big enough to drive a truck through?

 

[The Yakk]

When a County Comptroller signed a contract for the county, the court found it to not bind the county

there is a legal concept, ultra vires, that means that someone without authority may not bind in contract.

Lol good luck with that.

 

[Patman]

Exactly! This is key! I mentioned this before, but every time I do, someone on here grills me that I need to provide proof!

Because you do! You assume that's not part of the deal!

the whole point of this was to take the power out of the schools hands.

 

[Pat125]

Exactly! This is key! I mentioned this before, but every time I do, someone on here grills me that I need to provide proof!

I agree that this is key, and should be used. The argument that the wrong person signed it eight years ago is either gross incompetence and/or abhorrently dishonest. And absolutely shameful and embarrassing that such an argument would be posed.

I think $300 million (an additional $25 million for stupidity and lying) to allow a separation sooner rather than later. The ACC gets some money, since they will likely suffer any damages, and allows them to continue to hide whatever they are covering up. And Florida St. gets out at half price. A win for all, except the lawyers who will get tens of millions of dollars while they prep and go to trial.

 

[How Sway?!]

Either Florida St’s BOT is admitting they are either corrupt or grossly incompetent to allow themselves to be a party to an agreement they allegedly opposed for eight years.

Why not both?

 

[Pat125]

Why not both?

In my trade “or” means “and/or.” Sometimes I forget to write “and/or.” But yes, both can and probably apply here.

 

[billybud]

You know...no BOT of any program got to review the top secret 2016 GOR...there are no copies on the net to be found...the ACC demanded that the GOR not be public information...

And North Carolina's and Florida's public record laws state that any matter that comes before or is voted on by a state policy board becomes public information. So BOT's did not vote/review the document. The ACC went to extraordinary lengths to prevent the information contained to be known...ain't it odd that no school bound by the GOR even had a copy?

Now, after FSU sent their lawyers last year to the ACC offices and demanded to review the top secret document, they were allowed to read it while supervised...no phones/cameras, nor notes taken.

And, ain't it funny that it was not known that the ACC Commissioner unilaterally signed an ESPN contract extension ? And isn't it a little funny that no one has known/reported that the ESPN contract extension only bound ESPN through 2026 ?

Of course the GOR is through 2036...but there is a klinker in the works...the rights are only granted by the schools as necessary for the conference to perform the contractual obligations expressly set forth in the ESPN agreement. And if there is a change in 2026...??