Has any school ever broken a GOR?

[billybud]

I could not find a Delaney reference to a GOR being challenged....I did find this of two years ago...


...The ACC’s new grant of rights television deal—tying all 14 teams and Notre Dame into a long-term revenue sharing contract—has leveled off further realignment. Big Ten commissioner Jim Delany, whose conference presidents have been “evaluating” the conference landscape, said Tuesday further Big Ten expansion is unlikely.

 

[billybud]

It sucks to be an ACC football school.

If no nullifying language exists regarding the ACC GOR, the ACC is guaranteed to be the lowest earning conference for the next ten years, and there's nothing the football schools can do about it.











I think that the ACC may stay around the PAC 12 programs in revenue...but that the Big 10 and SEC will, indeed, be the Richie Rich's of college football.

But what the hey! Texas and Oklahoma already make 30-50 million more than the ACC's top revenue producer (FSU), Alabama, Auburn, Georgia, and Florida have been making $20 million or more for years.

The problem with the ACC is football product...people watch FSU, Clemson, and even Miami....Syracuse, UNC, NC State, Pitt, Virginia, Wake, Duke...not so much.

The ACC football product needs to be more salable.

 

[itgoeslike]

the GOR grants the program's rights to the conference...and here the language is specific..to allow the conference to perform the contractual obligations of the conference as set forth in the ESPN agreement.

One can not fully understand the GOR without having a copy of the ESPN agreement...the GOR and that agreement, together, constitute the obligation.

Specifically, a member school grants their rights solely to fulfill the obligations of the ESPN Agreement. The conference doesn't appear to have any assignable rights beyond the fulfillment of this specific agreement. As I stated, you need to see the language of the actual Agreement to gain a clearer understanding of what's what. The broader point is that the media entity likely controls whether a GOR is "broken" because they have provisions in their Agreement to do so. If it some point it benefitted both ESPN and FSU for the latter to move to the SEC, the conference most likely isn't in a position to do anything as it relates to the departing schools media rights. Having two agreements and partners probably makes the Big12 a more complex situation than the ACC, but again you would really have to understand the agreements that are in place.

Edit: For the nitpickers, the conference does have limited rights in rebroadcasting and using imagery of a departed school, i.e. older footage of Maryland vs. Virginia, etc.

 

[CL82]

Some GOR thoughts...

What constitutes "rights subject to this agreement?" If a school plays in a separate conference would those rights be subject to the agreement? Does the agreement include non-conference games? If a school is making say $22M as part of the ACC deal and would make say $50M as part of a new conference deal, is losing the the broadcast value of home games a net wash? Have they breached the GOR if they allow the media partner to continue to broadcast? What if the media partner has a stake in both conference deals? If the conference refuses to turnover the media rights payments have the breached the GOR? If they have a history of doing just that and.or threaten to withhold payments is that an anticipatory breach? If the GOR was put in place to protect a future ACCN and no ACCN is formed is that failure of purpose?

Conference GOR's are a fertile lawyer playground. The best thing that they have going for them, in my opinion, is the uncertainty as to whether they are enforceable. This isn't the sale of an existing product. It is a defacto liquidated damages provision and as such must not be punitive. Since no conference has ever had it media rights deal diminished by CR, or had any problems scheduling cancelled games, the need for a liquidated damages clause is questionable.

 

[junglehusky]

They don't continue to pay the content provider if the content provider is not making albums. George Michael and Boston were not cashing checks during their respective pissing matches with their studios, they were just forgoing cash during the prime of their careers.

So you're saying you have Faith that the GOR is More Than A Feeling?

 

[CallMeBruce]

So you're saying you have Faith that the GOR is More Than A Feeling?

Bruh.

 

[Excalibur]

There is a lot of case and statutory law around media rights sales. Rights sales have been challenged multiple times in the entertainment industry, and to my knowledge, the owner of the rights almost always wins. Does anyone know of an example where a rights sale was beaten, and why/how it happened?

When a musician or actor challenged and beat one of these, I believe they typically embargo product, which makes the rights worthless. A university doesn't really have that option.

I think it's a mistake to equate a grant of broadcast rights with an assignment of copyrights. I've explained why previously and don't have time to re-draft it. For now, I will only say that the latter is much more appropriate for a grant of specific performance or injunctive relief. The former can be dealt with from a monetary damages standpoint, particularly when there is not a complete assignment of rights (which there is not here). The problem is that the monetary damages are highly speculative, and likely much greater for a school with a high value to the conference.

 

[nelsonmuntz]

I think it's a mistake to equate a grant of broadcast rights with an assignment of copyrights. I've explained why previously and don't have time to re-draft it. For now, I will only say that the latter is much more appropriate for a grant of specific performance or injunctive relief. The former can be dealt with from a monetary damages standpoint, particularly when there is not a complete assignment of rights (which there is not here). The problem is that the monetary damages are highly speculative, and likely much greater for a school with a high value to the conference.

http://the-boneyard.com/threads/med...yland-vs-acc-lawsuit.59668/page-2#post-954662

Here is the thread where we last discussed it.

If there are simply damages to walk away, then why didn't any of the dozens, or likely hundreds, of lawyers that worked on this say "this Grant of Rights is a waste of time. We should just do a damages clause and move on"?

I am sure that Aerosmith, Prince, Boston and George Michael wish there was a simple buyout from their deals. It would have saved them a bunch of trouble.

 

[nelsonmuntz]

By the way, we are at the inflection point of the Grant of Rights. If all of you "the GOR is no big deal" people are right, we should expect Oklahoma to walk away in the next month or two. The President of the University came out against Texas, and there is clearly dissension in the ranks of the Big 12. If All Oklahoma has to do is write a check, they will be gone soon. Right?

 

[DudeOfCT]

By the way, we are at the inflection point of the Grant of Rights. If all of you "the GOR is no big deal" people are right, we should expect Oklahoma to walk away in the next month or two. The President of the University came out against Texas, and there is clearly dissension in the ranks of the Big 12. If All Oklahoma has to do is write a check, they will be gone soon. Right?

Yes, unless something is done to satisfy them behind closed doors OR there is nowhere for them to go.

 

[CallMeBruce]

http://the-boneyard.com/threads/med...yland-vs-acc-lawsuit.59668/page-2#post-954662

Here is the thread where we last discussed it.

If there are simply damages to walk away, then why didn't any of the dozens, or likely hundreds, of lawyers that worked on this say "this Grant of Rights is a waste of time. We should just do a damages clause and move on"?

I am sure that Aerosmith, Prince, Boston and George Michael wish there was a simple buyout from their deals. It would have saved them a bunch of trouble.

Lawyers write unenforceable contracts all the time. The law is a lot more complicated than you seem willing to believe. It's entirely possible that a team tries to walk and the GOR makes it untenable, but we won't know for sure until someone tries. I'm sure that OU would rather get a Big 12 network in an expanded Big 12 than walk to the B1G, where they have no traditional rivalries, more difficult geography, and no exposure in their primary recruiting area. If they feel that they're losing $20+mm/year by staying in the Big 12, then you may see how effective the GOR deals are.

 

[FfldCntyFan]

Waylon is using hyperbole in an attempt to get some of the posters on this board to say to themselves "wow, look at how smart that guy is". The reality is that in the context we are discussing, there has never been a case where a GOR was even challenged so it would be just as easy to claim that no conference has ever been able to successfully defend a GOR.

I doubt that anyone is claiming that it is no big deal or merely a simple buyout. The fact is however that both the conference and the participating schools will need to continue forward (and the conference will need to provide content to a third party) so a stalemate will not be merely depriving a musicians fan base from hearing any new material.

The extended (I believe it was 27 months) notification window the Big East had back when all he!! was breaking loose was as concrete an agreement as any could possibly be yet when push came to shove WVU was able to depart in approximately 1/3 of that time frame. Yes, the cost was far more than a standard departure would have been but something similar to this is what will happen when either the SEC or B1G decide to pluck a school or two from the B-12 and/or ACC. There will be a settlement between the departing school(s) and conference(s), replacements will be made and they will move on. The settlement will likely be larger than any prior departure fees but once the ability to move outweighs the greatest potential cost. One fly in the ointment here is risk as until a precedent is set, it will be difficult to accurately determine where a settlement will land, only what the limit a school would tolerate would be. Once the reward appears to outweigh the risk someone will move.

 

[billybud]

The folks who should know, Delaney, Bowlsby, etc...have all gone on record as saying that the GOR has "set" the P5 conferences.

 

[CL82]

The folks who should know, Delaney, Bowlsby, etc...have all gone on record as saying that the GOR has "set" the P5 conferences.

Because all good poker players show their cards to table while the game is going on.

 

[Excalibur]

Waylon is using hyperbole in an attempt to get some of the posters on this board to say to themselves "wow, look at how smart that guy is".

It's ok. I'm comfortable that I know my industry better than he does . . . .

 

[nelsonmuntz]

Yes, unless something is done to satisfy them behind closed doors OR there is nowhere for them to go.

No "unless". If the GOR is no big deal, than Oklahoma is gone.

 

[DudeOfCT]

No "unless". If the GOR is no big deal, than Oklahoma is gone.

OK, assume the GOR is no big deal and they are gone. Where do they go?

 

[billybud]

Because all good poker players show their cards to table while the game is going on.

If one needs to believe, one will. But when reputable people say that the GORs solidy the P5 conferences, I take their word over the speculations of folks with no real information.

 

[nelsonmuntz]

It's ok. I'm comfortable that I know my industry better than he does . . . .

Unless you are a sports media lawyer, this isn't "your" industry.

In addition to my prior examples, non-competes are enforced all the time, as are non-solicits. Give me an example anywhere where something is sold, but years later the selling party is able to ask for a "Do over".

 

[billybud]

Unless you are a sports media lawyer, this isn't "your" industry.

In addition to my prior examples, non-competes are enforced all the time, as are non-solicits. Give me an example anywhere where something is sold, but years later the selling party is able to ask for a "Do over".

Yep...after the ACC negotiated its agreement with ESPN....the bar got raised higher by later contracts with other leagues. The ACC couldn't cry "foul".

They had to do what the contract allowed...add new programs to be able to renegotiate.

 

[CL82]

If one needs to believe, one will. But when reputable people say that the GORs solidy the P5 conferences, I take their word over the speculations of folks with no real information.

Other than our dysfunctional friends in the Big 12 has anyone tipped their hand prior to announcing a change? I could see why you'd want to believe that GORs are iron clad, if they are not the ACC is a likely target given the disparity between the big boys of the P5 and lesser P5 conferences.

So yeah, I guess if one needs to believe, they will.

 

[junglehusky]

 

[CallMeBruce]

Unless you are a sports media lawyer, this isn't "your" industry.

In addition to my prior examples, non-competes are enforced all the time, as are non-solicits. Give me an example anywhere where something is sold, but years later the selling party is able to ask for a "Do over".

As someone who has employees violate non-competes all the time without any recourse, I can tell you that they are rarely enforced.

 

[nelsonmuntz]

As someone who has employees violate non-competes all the time without any recourse, I can tell you that they are rarely enforced.

As someone that has seen the proverbial freight train run over employees that have violated non-competes and non-solicits, back up, and run over them again, and I tell you that when the money is big enough, they are enforced.

 

[HistoryMajor]

Lawyers write unenforceable contracts all the time. The law is a lot more complicated than you seem willing to believe. It's entirely possible that a team tries to walk and the GOR makes it untenable, but we won't know for sure until someone tries. I'm sure that OU would rather get a Big 12 network in an expanded Big 12 than walk to the B1G, where they have no traditional rivalries, more difficult geography, and no exposure in their primary recruiting area. If they feel that they're losing $20+mm/year by staying in the Big 12, then you may see how effective the GOR deals are.

Bruce - I usually like your perspective but in this case, with all due respects, I think you're off base. I have written (perhaps) 200 contracts and my intent was always that they be enforced. That statement probably isn't strong enough as I made CERTAIN they were enforced. In this case I stand with Nelson in that I believe GOR is enforceable and I will continue to believe that until/unless GOR is successfully challenged.

 

[FfldCntyFan]

Bruce - I usually like your perspective but in this case, with all due respects, I think you're off base. I have written (perhaps) 200 contracts and my intent was always that they be enforced. That statement probably isn't strong enough as I made CERTAIN they were enforced. In this case I stand with Nelson in that I believe GOR is enforceable and I will continue to believe that until/unless GOR is successfully challenged.

I don't believe that the ability to enforce the GOR is the issue. The issue is, if a school does accept an offer to leave the ACC or B-12 for the SEC or B1G, will the parties in question remain so stubborn that they will harm themselves to enforce the agreement or will some (large) monetary settlement be reached by businessmen with reasonable minds?

The example I stated earlier, that the departure agreement in place at that time made it impossible for West Virginia (if the contract were to be enforced) to join the B-12 in the time frame necessary. The two sides (after some contentious discussions and threats of litigation in more than one jurisdiction) did reach a settlement. The dollar amount may be far different but the mechanics and results will be similar when a school receives an invitation from the SEC or B1G and does decide to leave the ACC or B-12.

 

[CTMike]

Unless you are a sports media lawyer, this isn't "your" industry.

In addition to my prior examples, non-competes are enforced all the time, as are non-solicits. Give me an example anywhere where something is sold, but years later the selling party is able to ask for a "Do over".

You use the word sold as if there was an exchange of money for a product. Except the money hasn't been paid and the product not produced.

 

[Excalibur]

Promises to deliver something in the future are broken all the time, and the breaching party pays damages. As for my background, I've negotiated sales, transfers and licenses of intellectual property rights of all kinds (including media, broadcast and publicity rights) involving some of the most famous names, companies and brands in the world. No, I don't do sports media. But I know enough to know how why the scenario you're describing is different. I've done my best to explain why the "sale" and music copyright analogies don't work. It's difficult to overcome willful ignorance, and easy to reply that I'm claiming that a GOR "is no big deal" and "easy to break". Of course, I've said neither, but that gets us back to the willful ignorance point.

 

[nelsonmuntz]

I don't believe that the ability to enforce the GOR is the issue. The issue is, if a school does accept an offer to leave the ACC or B-12 for the SEC or B1G, will the parties in question remain so stubborn that they will harm themselves to enforce the agreement or will some (large) monetary settlement be reached by businessmen with reasonable minds?

The example I stated earlier, that the departure agreement in place at that time made it impossible for West Virginia (if the contract were to be enforced) to join the B-12 in the time frame necessary. The two sides (after some contentious discussions and threats of litigation in more than one jurisdiction) did reach a settlement. The dollar amount may be far different but the mechanics and results will be similar when a school receives an invitation from the SEC or B1G and does decide to leave the ACC or B-12.

If it is life or death for the schools left behind, I don't see why they would ever allow any payment for exit, especially when they hold all the legal cards. By granting the broadcast rights to the conference, the conferences also increase the probability of a judge granting an injunction to the conference. The time for Oklahoma or Texas to negotiate softer exit terms was before they left the conference.

The WVU example is telling in that they paid up to get out, but the Big East's best case alternative was to have them leave in 2 years. In this case, the Big 12 has 10 more years of games against Texas and Oklahoma (a bit more interesting that WVU).

 

[nelsonmuntz]

Promises to deliver something in the future are broken all the time, and the breaching party pays damages. As for my background, I've negotiated sales, transfers and licenses of intellectual property rights of all kinds (including media, broadcast and publicity rights) involving some of the most famous names, companies and brands in the world. No, I don't do sports media. But I know enough to know how why the scenario you're describing is different. I've done my best to explain why the "sale" and music copyright analogies don't work. It's difficult to overcome willful ignorance, and easy to reply that I'm claiming that a GOR "is no big deal" and "easy to break". Of course, I've said neither, but that gets us back to the willful ignorance point.

Quite a lawyerly response. One one hand, these deals "are broken all the time", but you aren't saying "they are easy to break". So you are firmly on both sides of the issue. Got it.

If these deals "are broken all the time", can you point to one high profile case or even give a hypothetical example? I have provided 4 specific and about half a dozen hypothetical examples, and you haven't provided one. Maybe I am just being willfully ignorant though.