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Anchor Drop, July 10, 2020: Lawsuits Are Coming

Oh, you think you can just get out of a guarantee game like that?

Austin Peay v Vanderblt Photo by Ronald C. Modra/Getty Images

Good morning.

Optional Musical Accompaniment

So! With the news yesterday that the Big Ten is going to a conference-only schedule, and the ACC and Pac-12 are expected to do the same (and, I guess, the SEC and Big 12 probably will at some point), let’s talk about those nonconference games that got cancelled as a result!

Hint: you’re probably going to hear the term “force majeure” a lot in the coming months.

Why? Well, because all those guarantee games against Group of 5 and FCS teams that got cancelled as a result of the Big Ten’s move? Some of them will, I guess, go quietly, but with many smaller programs relying on those game contracts to pay the bills, I am guessing that some will do the true American thing and file a lawsuit over the cancelled game contracts.

(DISCLAIMER: none of this is legal advice. While I am a lawyer in real life, I am also an idiot internet commenter.)

Now, you’re probably thinking “But Tom! These games are being cancelled due to a global pandemic, shouldn’t that fall under a force majeure clause?” And... sure, that’s partially true. Only it’s not quite that simple.

Take the example of a game between Miami and Arkansas State in 2017 that was cancelled due to Hurricane Irma. A hurricane is, for obvious reasons, generally accepted as a valid reason to cancel a game, contract or not. The problem was that the game was scheduled to be played in Jonesboro, Arkansas, which was not under the threat of a hurricane. Miami’s reason for backing out of the game was that they might have difficulty returning to Miami due to the storm. Arkansas State wasn’t having it, and ended up suing Miami for breach of contract, though they settled out of court.

The uncomfortable reality for any Power 5 conference that’s cancelling non-conference games en masse is that it’s probably closer to the Arkansas State-Miami situation than a “normal” hurricane game.

The issue is that as a general rule, force majeure clauses only apply if the game is literally unplayable. It doesn’t cover cancellation where playing the game merely becomes more difficult or less profitable. And to understand this, it’s probably worth pointing out the economics of a guarantee game from the perspective of the bigger school. Yeah, a Power 5 school will cut a check to a smaller school to come play a one-off game at their stadium, but the bigger school usually makes that money back through ticket sales. But now it’s extremely unlikely that fans will be in attendance at any level that would make it profitable to play a guarantee game, if fans are in attendance at all.

The problem with this, at least from a lawyer’s perspective, is that so long as the Power 5 conferences are insisting on playing conference schedules, it’s hard to make the necessary argument to invoke a force majeure clause: that the game literally cannot be played. Make an argument for why Ohio State can’t play Bowling Green, but can still play Maryland. The stated reasoning revolves around the fact that the Big Ten can ensure that Maryland follows its protocols but can’t do the same for Bowling Green; the actual reason is probably a bit more nefarious than that.

Now, I’ll point out here that all of this reasoning goes out the window if and when the power conferences call off the entire season. Which is probably going to happen. For now, though, I’m ready for the fireworks in court.

Actual Sports on TV

Last season’s football game against Kentucky is on the SEC Network at 11 AM CT, but I have no idea why you would want to watch that.

With that out of the way, the Golf Channel has the second round of the Workday Charity Open at 2:00 PM CT. There’s also some soccer:

  • Huddersfield Town v. Luton Town (11:55 AM CT, ESPN+)
  • Fulham v. Cardiff City (2:10 PM CT, ESPN+)
  • Seattle Sounders v. San Jose Earthquakes (8:00 PM CT, ESPN)