Myth of the Big 12's Grant of rights

[Dann]

link

 

[whaler11]

Might as well just say Tuxedo Yoda three times in a mirror. Works faster.

 

[ddminct]

Might as well just say Tuxedo Yoda three times in a mirror. Works faster.

It's been over 30 minutes and he hasn't responded. I hope he is okay.

 

[businesslawyer]

Oh for Pete's sake. He is the anti-Tuxedo Yoda. He makes the argument (that I have made) that the GoR might not be enforceable, and because he can make the argument concludes that it is not enforceable.

Life (at least legal life) is more complicated. He may be right. It also may be the case that a court totally ignores his argument on the theory that once the rights are sold, the whole case isn't about liquidated damages any more. We won't know until the case is litigated and a court considers it.

As I've said before, the GoR is a clever attempt to get around the law of liquidated damages, but is ultimately designed for no other purpose but to do so. We won't know for sure what a court says until it says something. It's only those who pretend they know the answer for sure who are being dumb.

 

[Dann]

Oh for Pete's sake. He is the anti-Tuxedo Yoda. He makes the argument (that I have made) that the GoR might not be enforceable, and because he can make the argument concludes that it is not enforceable.

Life (at least legal life) is more complicated. He may be right. It also may be the case that a court totally ignores his argument on the theory that once the rights are sold, the whole case isn't about liquidated damages any more. We won't know until the case is litigated and a court considers it.

As I've said before, the GoR is a clever attempt to get around the law of liquidated damages, but is ultimately designed for no other purpose but to do so. We won't know for sure what a court says until it says something. It's only those who pretend they know the answer for sure who are being dumb.

i honestly read this as "the law of liquor damages". man oh man i'm on my game right now!

 

[Willy Gee]

His hypothetical with Team X, Conference A, and Conference B is flawed. Conference B would not agree to accept Team X unless a court first determined that the GOR in favor of Conference A was invalid. Specific performance would not be an issue.

 

[Marty Jackson]

fiduciary obligation by the networks to the conference?
so when ESPN is telling the ACC who to poach from the Big East is that a violation of the fiduciary obligation?
The guy lost me when he was basically suggesting that didn't happen.

 

[whaler11]

Oh for Pete's sake. He is the anti-Tuxedo Yoda. He makes the argument (that I have made) that the GoR might not be enforceable, and because he can make the argument concludes that it is not enforceable.

Life (at least legal life) is more complicated. He may be right. It also may be the case that a court totally ignores his argument on the theory that once the rights are sold, the whole case isn't about liquidated damages any more. We won't know until the case is litigated and a court considers it.

As I've said before, the GoR is a clever attempt to get around the law of liquidated damages, but is ultimately designed for no other purpose but to do so. We won't know for sure what a court says until it says something. It's only those who pretend they know the answer for sure who are being dumb.

Yes the joke being he'd post the opposite point of view.

 

[TuxedoYoda]

You rang?

Been a busy day for me. The guy who wrote that joke article is being destroyed in the comments section of his own page and around the internet. I asked an attorney I know to read the article and, as I tweeted, he said the author is a duck*ing idiot.

Here is how the crux of the argument was dumbed-down for a non-lawyer like me.

Contract law applies to a standard conference agreement involving an exit fee. Here is the real world, non football example I was given. If I hire Van Halen to play at a festival I am putting on and they don't show after signing a contract to appear, I can sue them for the estimated damages they caused me and for my legal fees. I never owned the actual band. I was just entitled to their services on that day. This is the equivalent of a conference having a team under contract to play for the 2014 season in Conference A but they leave to go play that season in Conference B. Conference A would be entitled to the damages incurred from the team not performing for that season (and any associated legal fees).

The GOR is not about contract law. It is about property law. There is no expectation for a team to perform in a certain conference for a certain length of time. The team has sold their TV rights to the conference. Property has been transferred. The conference owns this property. I can't sell HuskyfanDan a house, and then a month later show up with movers who start taking his stuff out and start putting my stuff back in and say, "You know, I shouldn't have sold the house. I made a mistake. Just bill me for your inconvenience." Dan owns the duck*ing house now! It is his property!

Again, I didn't go to law school, but there is a reason the ACC has tried & failed multiple times to establish a GOR. There is a reason the GORs are the bedrock of the TV deals for the P12,B10 & B12.

 

[Hoophound]

You rang?

Been a busy day for me. The guy who wrote that joke article is being destroyed in the comments section of his own page and around the internet. I asked an attorney I know to read the article and, as I tweeted, he said the author is a duck*ing idiot.

Here is how the crux of the argument was dumbed-down for a non-lawyer like me.

Contract law applies to a standard conference agreement involving an exit fee. Here is the real world, non football example I was given. If I hire Van Halen to play at a festival I am putting on and they don't show after signing a contract to appear, I can sue them for the estimated damages they caused me and for my legal fees. I never owned the actual band. I was just entitled to their services on that day. This is the equivalent of a conference having a team under contract to play for the 2014 season in Conference A but they leave to go play that season in Conference B. Conference A would be entitled to the damages incurred from the team not performing for that season (and any associated legal fees).

The GOR is not about contract law. It is about property law. There is no expectation for a team to perform in a certain conference for a certain length of time. The team has sold their TV rights to the conference. Property has been transferred. The conference owns this property. I can't sell HuskyfanDan a house, and then a month later show up with movers who start taking his stuff out and start putting my stuff back in and say, "You know, I shouldn't have sold the house. I made a mistake. Just bill me for your inconvenience." Dan owns the duck*ing house now! It is his property!

Again, I didn't go to law school, but there is a reason the ACC has tried & failed multiple times to establish a GOR. There is a reason the GORs are the bedrock of the TV deals for the P12,B10 & B12.

Well, that sounds pretty reasonable.

 

[specialisthusky]

You rang?

Been a busy day for me. The guy who wrote that joke article is being destroyed in the comments section of his own page and around the internet. I asked an attorney I know to read the article and, as I tweeted, he said the author is a duck*ing idiot.

Here is how the crux of the argument was dumbed-down for a non-lawyer like me.

Contract law applies to a standard conference agreement involving an exit fee. Here is the real world, non football example I was given. If I hire Van Halen to play at a festival I am putting on and they don't show after signing a contract to appear, I can sue them for the estimated damages they caused me and for my legal fees. I never owned the actual band. I was just entitled to their services on that day. This is the equivalent of a conference having a team under contract to play for the 2014 season in Conference A but they leave to go play that season in Conference B. Conference A would be entitled to the damages incurred from the team not performing for that season (and any associated legal fees).

The GOR is not about contract law. It is about property law. There is no expectation for a team to perform in a certain conference for a certain length of time. The team has sold their TV rights to the conference. Property has been transferred. The conference owns this property. I can't sell HuskyfanDan a house, and then a month later show up with movers who start taking his stuff out and start putting my stuff back in and say, "You know, I shouldn't have sold the house. I made a mistake. Just bill me for your inconvenience." Dan owns the duck*ing house now! It is his property!

Again, I didn't go to law school, but there is a reason the ACC has tried & failed multiple times to establish a GOR. There is a reason the GORs are the bedrock of the TV deals for the P12,B10 & B12.

did you know the headliner of your imaginary festival came out with an album in 2012 titled "A Different Kind of Truth." Please end your mission as the holy defender of the grant of rights. It is entirely pathetic at this point, which is sad because you were an interesting poster prior to obsessing over this contract you have never even seen.

 

[kyleslamb]

You rang?

Been a busy day for me. The guy who wrote that joke article is being destroyed in the comments section of his own page and around the internet. I asked an attorney I know to read the article and, as I tweeted, he said the author is a duck*ing idiot.

Here is how the crux of the argument was dumbed-down for a non-lawyer like me.

Contract law applies to a standard conference agreement involving an exit fee. Here is the real world, non football example I was given. If I hire Van Halen to play at a festival I am putting on and they don't show after signing a contract to appear, I can sue them for the estimated damages they caused me and for my legal fees. I never owned the actual band. I was just entitled to their services on that day. This is the equivalent of a conference having a team under contract to play for the 2014 season in Conference A but they leave to go play that season in Conference B. Conference A would be entitled to the damages incurred from the team not performing for that season (and any associated legal fees).

The GOR is not about contract law. It is about property law. There is no expectation for a team to perform in a certain conference for a certain length of time. The team has sold their TV rights to the conference. Property has been transferred. The conference owns this property. I can't sell HuskyfanDan a house, and then a month later show up with movers who start taking his stuff out and start putting my stuff back in and say, "You know, I shouldn't have sold the house. I made a mistake. Just bill me for your inconvenience." Dan owns the duck*ing house now! It is his property!

Again, I didn't go to law school, but there is a reason the ACC has tried & failed multiple times to establish a GOR. There is a reason the GORs are the bedrock of the TV deals for the P12,B10 & B12.

Intellectual property is still about contract law. When you transfer property rights, you are doing so for consideration. If the considerations are not met, the rights are not enforceable.

You know what is comparable here? When recording artists record a master, they are transferring the rights of the master to the label to mass produce and they own the rights of all future distributions of that master. Yet, there have been hundreds and thousands of times where the artist was granted back the rights because of breach or because the scope and duration of the agreement was deemed to be too broad whether by non-compete agreement or some other measure.

The point is not that a GOR is necessarily unenforceable, it's that like any agreement, it is still subject to contract law. And if one part of the contract is deemened unenforceable, the Grant of Rights could be unenforceable -- especially in lieu of a severability clause.

 

[TuxedoYoda]

I never meant that post to be an apologia for the Big 12. Personally, I would love to see Texas in the Big 10. I've said that many times elsewhere. I'm not sure if I have said it here. I am jealous of Texas A&M. They broke free of the political bonds of Texas Tech & Baylor. They are in a much more compelling conference than the Big 12. I'd like to see Texas reap the benefits of the CIC and join the Big 1o with Notre Dame. That would put Texas in a confederation of like-minded elite public flagships. It would make my Saturdays more enjoyable.

You are right. I have never seen the GOR contract. I believe I have read everything available about it. The positions of the people who buy into its validity seem more reasonable to me than those who attack it. That is all.

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Last year, I over-stayed my welcome at the WVU Scout board. I said goodbye and never returned. It seems things are about the same here now. I wish you all well and I hope everything works out well for UConn.

 

[RMoore1999]

I never meant that post to be an apologia for the Big 12. Personally, I would love to see Texas in the Big 10. I've said that many times elsewhere. I'm not sure if I have said it here. I am jealous of Texas A&M. They broke free of the political bonds of Texas Tech & Baylor. They are in a much more compelling conference than the Big 12. I'd like to see Texas reap the benefits of the CIC and join the Big 1o with Notre Dame. That would put Texas in a confederation of like-minded elite public flagships. It would make my Saturdays more enjoyable.

You are right. I have never seen the GOR contract. I believe I have read everything available about it. The positions of the people who buy into its validity seem more reasonable to me than those who attack it. That is all.

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Last year, I over-stayed my welcome at the WVU Scout board. I said goodbye and never returned. It seems things are about the same here now. I wish you all well and I hope everything works out well for UConn.

Don't let a contrary view or two turn you away from here. I appreciate the realignment tidbits from your Austin source. Plus, your avatar is my GF's 3rd fav (HFD's recently became her 2nd)....makes her giggle every time...I enjoy giggles...

 

[UConnDan97]

I never meant that post to be an apologia for the Big 12. Personally, I would love to see Texas in the Big 10. I've said that many times elsewhere. I'm not sure if I have said it here. I am jealous of Texas A&M. They broke free of the political bonds of Texas Tech & Baylor. They are in a much more compelling conference than the Big 12. I'd like to see Texas reap the benefits of the CIC and join the Big 1o with Notre Dame. That would put Texas in a confederation of like-minded elite public flagships. It would make my Saturdays more enjoyable.

You are right. I have never seen the GOR contract. I believe I have read everything available about it. The positions of the people who buy into its validity seem more reasonable to me than those who attack it. That is all.

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Last year, I over-stayed my welcome at the WVU Scout board. I said goodbye and never returned. It seems things are about the same here now. I wish you all well and I hope everything works out well for UConn.

I second RMoore's sentiment. Don't leave on account of some of the others disagreeing with you. It's always good to have a viewpoint outside of our own, especially when it isn't from BC...

 

[RMoore1999]

I second RMoore's sentiment. Don't leave on account of some of the others disagreeing with you. It's always good to have a viewpoint outside of our own, especially when it isn't from BC...

Exactly....Claver, stay away!

 

[specialisthusky]

I never meant that post to be an apologia for the Big 12. Personally, I would love to see Texas in the Big 10. I've said that many times elsewhere. I'm not sure if I have said it here. I am jealous of Texas A&M. They broke free of the political bonds of Texas Tech & Baylor. They are in a much more compelling conference than the Big 12. I'd like to see Texas reap the benefits of the CIC and join the Big 1o with Notre Dame. That would put Texas in a confederation of like-minded elite public flagships. It would make my Saturdays more enjoyable.

You are right. I have never seen the GOR contract. I believe I have read everything available about it. The positions of the people who buy into its validity seem more reasonable to me than those who attack it. That is all.

----------------------------------

Last year, I over-stayed my welcome at the WVU Scout board. I said goodbye and never returned. It seems things are about the same here now. I wish you all well and I hope everything works out well for UConn.

your opinions are more than welcome and by all means I am far from the voice of the by. I was just sick of hearing about how iron clad you thought the Big 12 GOR is. Whether it is or not is certainly debatable imo. I appreciate your positions on conference realignment as you are removed from UConn's situation and it is nice to have an outside opinion sharing thoughts and scenarios. I apologize if the tone was overly harsh.

 

[junglehusky]

Yeah I like having Yoda and Frank pop in, and I wish fromtheinside would make an cameo appearance too...

 

[Jericho]

It's an interesting article. I am not sure he is right, but it makes some sense.

Basically, he is treating it as a breach of contract matter. Under a grant of rights, any hypothetical Big 12 school, let's use Kansas as an example, is agreeing to deliver to the Big 12 each and every year its television rights. If Kansas one day decides to leave the Big12 and not deliver those rights, then there's been a breach of contract. However, for the Big 12 to sue, it will have to prove and show damages. If the Big 12 ends up getting paid the exact same amount of money by the networks over the entire life of the grant of rights, then what harm has the Big 12 actually suffered? They may have less games and less inventory, but they're still getting paid the same. Since the Big 12's grant of rights matches the current TV deal, the only easily provable loss would be a loss in tv money. But the article points out that no network has reduced an existing contract due to loss of schools. So any such loss from the network payout would be unlikely.

The counter-argument is that its not a breach of contract, but involves intellectual property. Basically the schools have entered into short term licenses for the rights to the various games. Once the grant of rights is signed, the Big 12 owns it for the next so many years. So any defecting school would have nothing to bring. Those rights are already lost and controlled by someone else. If someone tries to use those rights, I suppose it gets into issues of conversion and so forth. and then injunctions can be issued against other conferences trying to use said rights.

Of course, I have no familiarity with grants of rights or how the Big 12 structured their agreement.

 

[UConn5]

Edit: clicked "respond" but was delayed and didn't see what jericho posted before i clicked post. Think that we addressed similar things

To build on some of what BL said there is a serious question as to whether the courts will treat the grant of rights as a sale of property or merely a contract that licenses out media rights for a certain amount of years. Neither TuxedoYoda nor the article are completely off base...I think both the author of the article and TY are wrong in assuming that the grant of rights is definitely a property transfer or definitely a licesning agreement/contract.

Re-characterizing transactions between licensing and property transactions has been done forever...corporations try and do it all the time to get around the US tax laws on income earned abroad. I guess the question I would have to ask is what perspective courts would look at this from. Typically if you transfer all your rights to something, its a property transfer, but if you retain rights (e.g. payment based on performance, number of units sold, etc.) or control over the product (which is definitely an issue here) then its a license. Courts could look at these grant of rights and say "well they transferred ALL of their rights for X number of years and they have no control over how their media rights are used so its a property transfer" but they could also say "well they transferred their media rights for X number of years but then they get their rights back so they aren't transferring everything over and it looks more like a license."

My gut tells me that if this is brought to court the grant of rights doesnt hold up. Compensatory damages may be in line if they can be proven...and if UT and OU leave the Big 12 then there will certainly be some decent data to show that they cannot get replacements to make up for what they lost, but I don't think they are going to be able to convince a court that they should be completely bound by the grant of rights.

 

[Dann]

i knew this was going to bring a couple CR heads to the BY today. love it! s/o to yoda and kyle.

 

[Fishy]

Last year, I over-stayed my welcome at the WVU Scout board. I said goodbye and never returned. It seems things are about the same here now. I wish you all well and I hope everything works out well for UConn.

And there's the downside to internet message boards.

The prolifically stupid grow like weeds while crowding out the brighter and more interesting.

 

[Adios]

Well done, specialisthusky. Bravo.

Yoda, stick around. We normally enjoy people from other schools' fanbases coming here.