It's very long, took me hours to read it, but well worth your time. I linked a few excerpts in another thread, but this one really stood out:
https://www.troutman.com/a/web/344419/Wilhelm.pdf
4. Generally Vague
Finally, the grant of rights is only as unenforceable as it is challenged.
That is, if no party to the agreement challenges it, it is as effectively enforce-
able as if it was upheld over a litigated challenge. That is why the grant of
rights has been colloquially characterized as a “triple-dog-dare to schools that want to attempt to challenge it . . . .” The entire texts of the agree-
ments are only several pages long, with the Big 12’s being the longest at a
mere five pages. None of the agreements have termination provisions.
None have any mention of liquidated damages. None have any process for
how the agreement will be enforced. In short, one interpretation is that
what the agreements do not say is more important than what they do say.
Whether one decides that employing conscious ambiguity is a proper
or improper means to draft an agreement, the fact remains that the cur-
rent grants of rights are ambiguous. It may be that both a school attempt-
ing to leave a conference and the conference itself believe that the grant of
rights at issue better supports their position regarding the exit. Given
the identity of the parties that have entered into this agreement, and their
relative sophistication, bargaining power is not an issue here.
Thus, the grant of rights agreement was not vaguely drafted in order to
strike a deal. The agreement did not need to be made; instead, some major-
ity of the conference wanted the agreement to be made. Unlike a corporate
acquisition, where the buyer and seller likely cannot agree on a term, the
issue here is probably that the schools did not want to enumerate a term.
Thus, the “triple-dog-dare” comes into play. Will schools interested in
leaving a conference attempt to litigate the vague agreement, especially where the legal outcome is so unclear? Or, will they simply acquiesce to the
indefinite agreement that would prove to be a costly litigation matter?
A simple cost-benefit analysis likely leads schools to comply with the
grant of rights. The chances of success in litigation are uncertain, and the
relative value of prevailing is not particularly high—especially if the value is
not monetary and therefore difficult to quantify in monetary terms: win-
ning, fan support, etc. Therefore, if the grants of rights prove to be success-
ful at slowing, if not stopping, conference realignment, it is not due to the
documents’ legal terms. Instead, it is due to its lack of terms, the over-
whelming litigation expense, an uncertain outcome, and almost no mone-
tary gain. The grants of rights are silent rather than speaking.
This article was written in 2017, long before FSU had any ACC-related concerns on the horizon, long before USCLA and long before OUT. However, if FSU's lawyers aren't using it, then they're not earning their keep.
Another good nugget:
he grant of rights should not be a
means to force conference stability as it simply pushes the threat of short-
term instability off into the future. Rather, the grant of rights should be
evidence of the cohesion of a conference and schools working together. Un-
fortunately, regardless of whether the grant was created to force stability or
evidence cohesion, the grant itself will take the same form. Conferences
should then ask themselves which category their current grant occupies and
take other steps to solidify the conference relationship for grants that at-
tempt to force stability.
(03-06-2024 12:41 PM)bryanw1995 Wrote: [ -> ]It's very long, took me hours to read it, but well worth your time. I linked a few excerpts in another thread, but this one really stood out:
4. Generally Vague
Finally, the grant of rights is only as unenforceable as it is challenged.
That is, if no party to the agreement challenges it, it is as effectively enforce-
able as if it was upheld over a litigated challenge. That is why the grant of
rights has been colloquially characterized as a “triple-dog-dare to schools that want to attempt to challenge it . . . .” The entire texts of the agree-
ments are only several pages long, with the Big 12’s being the longest at a
mere five pages. None of the agreements have termination provisions.
None have any mention of liquidated damages. None have any process for
how the agreement will be enforced. In short, one interpretation is that
what the agreements do not say is more important than what they do say.
Whether one decides that employing conscious ambiguity is a proper
or improper means to draft an agreement, the fact remains that the cur-
rent grants of rights are ambiguous. It may be that both a school attempt-
ing to leave a conference and the conference itself believe that the grant of
rights at issue better supports their position regarding the exit. Given
the identity of the parties that have entered into this agreement, and their
relative sophistication, bargaining power is not an issue here.
Thus, the grant of rights agreement was not vaguely drafted in order to
strike a deal. The agreement did not need to be made; instead, some major-
ity of the conference wanted the agreement to be made. Unlike a corporate
acquisition, where the buyer and seller likely cannot agree on a term, the
issue here is probably that the schools did not want to enumerate a term.
Thus, the “triple-dog-dare” comes into play. Will schools interested in
leaving a conference attempt to litigate the vague agreement, especially where the legal outcome is so unclear? Or, will they simply acquiesce to the
indefinite agreement that would prove to be a costly litigation matter?
A simple cost-benefit analysis likely leads schools to comply with the
grant of rights. The chances of success in litigation are uncertain, and the
relative value of prevailing is not particularly high—especially if the value is
not monetary and therefore difficult to quantify in monetary terms: win-
ning, fan support, etc. Therefore, if the grants of rights prove to be success-
ful at slowing, if not stopping, conference realignment, it is not due to the
documents’ legal terms. Instead, it is due to its lack of terms, the over-
whelming litigation expense, an uncertain outcome, and almost no mone-
tary gain. The grants of rights are silent rather than speaking.
This article was written in 2017, long before FSU had any ACC-related concerns on the horizon, long before USCLA and long before OUT. However, if FSU's lawyers aren't using it, then they're not earning their keep.
Another good nugget:
he grant of rights should not be a
means to force conference stability as it simply pushes the threat of short-
term instability off into the future. Rather, the grant of rights should be
evidence of the cohesion of a conference and schools working together. Un-
fortunately, regardless of whether the grant was created to force stability or
evidence cohesion, the grant itself will take the same form. Conferences
should then ask themselves which category their current grant occupies and
take other steps to solidify the conference relationship for grants that at-
tempt to force stability.
Great article. The point about stability was very prescient. The B12 GOR did provide great stability in the short term. Up till the End UT and OU planned to abide by the GOR. This is did not however provide the long term stability the remaining 8 would have hoped for.
The resolution to the GOR with OU and UT seems telling.
The Big12 used OU and UTs media rights to bargain for pro rata shares for the 4C. OU and UT will not receive SEC payouts in 2024, as those broadcast rights were used by the Big 12 to pay ESPN for the Pro-Rata expansions. To compensate FOX, UT had to switch a home game with Michigan this year.
The GOR was never challenged or priced. But it was bargained by the Big 12.
(03-06-2024 01:52 PM)LeeNobody Wrote: [ -> ] (03-06-2024 12:41 PM)bryanw1995 Wrote: [ -> ]It's very long, took me hours to read it, but well worth your time. I linked a few excerpts in another thread, but this one really stood out:
4. Generally Vague
Finally, the grant of rights is only as unenforceable as it is challenged.
That is, if no party to the agreement challenges it, it is as effectively enforce-
able as if it was upheld over a litigated challenge. That is why the grant of
rights has been colloquially characterized as a “triple-dog-dare to schools that want to attempt to challenge it . . . .” The entire texts of the agree-
ments are only several pages long, with the Big 12’s being the longest at a
mere five pages. None of the agreements have termination provisions.
None have any mention of liquidated damages. None have any process for
how the agreement will be enforced. In short, one interpretation is that
what the agreements do not say is more important than what they do say.
Whether one decides that employing conscious ambiguity is a proper
or improper means to draft an agreement, the fact remains that the cur-
rent grants of rights are ambiguous. It may be that both a school attempt-
ing to leave a conference and the conference itself believe that the grant of
rights at issue better supports their position regarding the exit. Given
the identity of the parties that have entered into this agreement, and their
relative sophistication, bargaining power is not an issue here.
Thus, the grant of rights agreement was not vaguely drafted in order to
strike a deal. The agreement did not need to be made; instead, some major-
ity of the conference wanted the agreement to be made. Unlike a corporate
acquisition, where the buyer and seller likely cannot agree on a term, the
issue here is probably that the schools did not want to enumerate a term.
Thus, the “triple-dog-dare” comes into play. Will schools interested in
leaving a conference attempt to litigate the vague agreement, especially where the legal outcome is so unclear? Or, will they simply acquiesce to the
indefinite agreement that would prove to be a costly litigation matter?
A simple cost-benefit analysis likely leads schools to comply with the
grant of rights. The chances of success in litigation are uncertain, and the
relative value of prevailing is not particularly high—especially if the value is
not monetary and therefore difficult to quantify in monetary terms: win-
ning, fan support, etc. Therefore, if the grants of rights prove to be success-
ful at slowing, if not stopping, conference realignment, it is not due to the
documents’ legal terms. Instead, it is due to its lack of terms, the over-
whelming litigation expense, an uncertain outcome, and almost no mone-
tary gain. The grants of rights are silent rather than speaking.
This article was written in 2017, long before FSU had any ACC-related concerns on the horizon, long before USCLA and long before OUT. However, if FSU's lawyers aren't using it, then they're not earning their keep.
Another good nugget:
he grant of rights should not be a
means to force conference stability as it simply pushes the threat of short-
term instability off into the future. Rather, the grant of rights should be
evidence of the cohesion of a conference and schools working together. Un-
fortunately, regardless of whether the grant was created to force stability or
evidence cohesion, the grant itself will take the same form. Conferences
should then ask themselves which category their current grant occupies and
take other steps to solidify the conference relationship for grants that at-
tempt to force stability.
Great article. The point about stability was very prescient. The B12 GOR did provide great stability in the short term. Up till the End UT and OU planned to abide by the GOR. This is did not however provide the long term stability the remaining 8 would have hoped for.
The resolution to the GOR with OU and UT seems telling.
[b]The Big12 used OU and UTs media rights to bargain for pro rata shares for the 4C. [\b]OU and UT will not receive SEC payouts in 2024, as those broadcast rights were used by the Big 12 to pay ESPN for the Pro-Rata expansions. To compensate FOX, UT had to switch a home game with Michigan this year.
The GOR was never challenged or priced. But it was bargained by the Big 12.
The Big 12 worked out the OUT exit 6 months before they knew the 4c would join. At the time, I speculated that Yormark had a handshake agreement to help ESPN get OUT to the SEC early, though it was already clear that the 4c were a possibility going forward.
Thanks for sharing. Link please.
(03-06-2024 12:41 PM)bryanw1995 Wrote: [ -> ]It's very long, took me hours to read it, but well worth your time. I linked a few excerpts in another thread, but this one really stood out:
https://www.troutman.com/a/web/344419/Wilhelm.pdf
4. Generally Vague
Finally, the grant of rights is only as unenforceable as it is challenged.
That is, if no party to the agreement challenges it, it is as effectively enforce-
able as if it was upheld over a litigated challenge. That is why the grant of
rights has been colloquially characterized as a “triple-dog-dare to schools that want to attempt to challenge it . . . .” The entire texts of the agree-
ments are only several pages long, with the Big 12’s being the longest at a
mere five pages. None of the agreements have termination provisions.
None have any mention of liquidated damages. None have any process for
how the agreement will be enforced. In short, one interpretation is that
what the agreements do not say is more important than what they do say.
Whether one decides that employing conscious ambiguity is a proper
or improper means to draft an agreement, the fact remains that the cur-
rent grants of rights are ambiguous. It may be that both a school attempt-
ing to leave a conference and the conference itself believe that the grant of
rights at issue better supports their position regarding the exit. Given
the identity of the parties that have entered into this agreement, and their
relative sophistication, bargaining power is not an issue here.
Thus, the grant of rights agreement was not vaguely drafted in order to
strike a deal. The agreement did not need to be made; instead, some major-
ity of the conference wanted the agreement to be made. Unlike a corporate
acquisition, where the buyer and seller likely cannot agree on a term, the
issue here is probably that the schools did not want to enumerate a term.
Thus, the “triple-dog-dare” comes into play. Will schools interested in
leaving a conference attempt to litigate the vague agreement, especially where the legal outcome is so unclear? Or, will they simply acquiesce to the
indefinite agreement that would prove to be a costly litigation matter?
A simple cost-benefit analysis likely leads schools to comply with the
grant of rights. The chances of success in litigation are uncertain, and the
relative value of prevailing is not particularly high—especially if the value is
not monetary and therefore difficult to quantify in monetary terms: win-
ning, fan support, etc. Therefore, if the grants of rights prove to be success-
ful at slowing, if not stopping, conference realignment, it is not due to the
documents’ legal terms. Instead, it is due to its lack of terms, the over-
whelming litigation expense, an uncertain outcome, and almost no mone-
tary gain. The grants of rights are silent rather than speaking.
This article was written in 2017, long before FSU had any ACC-related concerns on the horizon, long before USCLA and long before OUT. However, if FSU's lawyers aren't using it, then they're not earning their keep.
Another good nugget:
he grant of rights should not be a
means to force conference stability as it simply pushes the threat of short-
term instability off into the future. Rather, the grant of rights should be
evidence of the cohesion of a conference and schools working together. Un-
fortunately, regardless of whether the grant was created to force stability or
evidence cohesion, the grant itself will take the same form. Conferences
should then ask themselves which category their current grant occupies and
take other steps to solidify the conference relationship for grants that at-
tempt to force stability.
Good find.
Re that last nugget: Florida State's lawsuit does address that matter of 'category.' As you'd expect, the school's position is that the ACC grant of rights exists to 'force conference stability' in the absence of true 'cohesion.'
As a supporting document the university could produce copies of some message board commentary here. People here who
like the ACC grant of rights like it because they see it as a forcing mechanism in the absence of true conference cohesion. They say as much repeatedly. We've seen metaphors like 'ironclad shackles.' Printing out a few discussions of this sort could support a claim by the school that the restrictive purpose of the document is common knowledge.
That’s exactly what I wrote back in 2013 - the GOR is a “triple dog dare”. I’m not sure if you’re referring to the Harvard Entertainment Law Journal article on GORs, but that was citing my blog post here where I specifically stated that it was a “Triple Dog Dare”:
https://frankthetank.org/2013/08/08/summ...agreement/
As for the GOR providing stability, I agree. It’s also what I wrote back in 2013:
Quote:Further consolidation among the power conferences is possible, but it continues to seem more likely to occur in the 2020s at the earliest. If the Big 12 Grant of Rights agreement is substantially similar to what the Big Ten, Pac-12 and ACC have in place (and there isn’t much reason to believe that there would be much deviation), it makes little sense to believe that more realignment is imminent.
(03-06-2024 09:26 PM)Frank the Tank Wrote: [ -> ]That’s exactly what I wrote back in 2013 - the GOR is a “triple dog dare”. I’m not sure if you’re referring to the Harvard Entertainment Law Journal article on GORs, but that was citing my blog post here where I specifically stated that it was a “Triple Dog Dare”:
https://frankthetank.org/2013/08/08/summ...agreement/
As for the GOR providing stability, I agree. It’s also what I wrote back in 2013:
Quote:Further consolidation among the power conferences is possible, but it continues to seem more likely to occur in the 2020s at the earliest. If the Big 12 Grant of Rights agreement is substantially similar to what the Big Ten, Pac-12 and ACC have in place (and there isn’t much reason to believe that there would be much deviation), it makes little sense to believe that more realignment is imminent.
Yes, I remember that he quoted you, but I didn't realize that was the exact part! I still think that's extremely cool btw.
It's interesting coming back to that article now, a couple years later. Some of the stuff he wrote seems to be exactly what we're seeing today, though he thought that the odds of a GoR getting challenged would be higher towards the end rather than beginning of it. Admittedly, I don't know many here who saw that one coming, even FSU, until within the past year or so.
(03-06-2024 10:22 PM)bryanw1995 Wrote: [ -> ] (03-06-2024 09:26 PM)Frank the Tank Wrote: [ -> ]That’s exactly what I wrote back in 2013 - the GOR is a “triple dog dare”. I’m not sure if you’re referring to the Harvard Entertainment Law Journal article on GORs, but that was citing my blog post here where I specifically stated that it was a “Triple Dog Dare”:
https://frankthetank.org/2013/08/08/summ...agreement/
As for the GOR providing stability, I agree. It’s also what I wrote back in 2013:
Quote:Further consolidation among the power conferences is possible, but it continues to seem more likely to occur in the 2020s at the earliest. If the Big 12 Grant of Rights agreement is substantially similar to what the Big Ten, Pac-12 and ACC have in place (and there isn’t much reason to believe that there would be much deviation), it makes little sense to believe that more realignment is imminent.
Yes, I remember that he quoted you, but I didn't realize that was the exact part! I still think that's extremely cool btw.
It's interesting coming back to that article now, a couple years later. Some of the stuff he wrote seems to be exactly what we're seeing today, though he thought that the odds of a GoR getting challenged would be higher towards the end rather than beginning of it. Admittedly, I don't know many here who saw that one coming, even FSU, until within the past year or so.
It was inevitable as soon as the B1G secured its latest media deal. The revenue gap was here to stay and it was growing. With ACC schools reportedly on the hook through 2036, the nationally competitive programs had no choice but to try something.
(03-07-2024 05:02 AM)Gitanole Wrote: [ -> ] (03-06-2024 10:22 PM)bryanw1995 Wrote: [ -> ] (03-06-2024 09:26 PM)Frank the Tank Wrote: [ -> ]That’s exactly what I wrote back in 2013 - the GOR is a “triple dog dare”. I’m not sure if you’re referring to the Harvard Entertainment Law Journal article on GORs, but that was citing my blog post here where I specifically stated that it was a “Triple Dog Dare”:
https://frankthetank.org/2013/08/08/summ...agreement/
As for the GOR providing stability, I agree. It’s also what I wrote back in 2013:
Quote:Further consolidation among the power conferences is possible, but it continues to seem more likely to occur in the 2020s at the earliest. If the Big 12 Grant of Rights agreement is substantially similar to what the Big Ten, Pac-12 and ACC have in place (and there isn’t much reason to believe that there would be much deviation), it makes little sense to believe that more realignment is imminent.
Yes, I remember that he quoted you, but I didn't realize that was the exact part! I still think that's extremely cool btw.
It's interesting coming back to that article now, a couple years later. Some of the stuff he wrote seems to be exactly what we're seeing today, though he thought that the odds of a GoR getting challenged would be higher towards the end rather than beginning of it. Admittedly, I don't know many here who saw that one coming, even FSU, until within the past year or so.
It was inevitable as soon as the B1G secured its latest media deal. The revenue gap was here to stay and it was growing. With ACC schools reportedly on the hook through 2036, the nationally competitive programs had no choice but to try something.
Maybe. Or just maybe, Kevin Warren put out the highest number he possibly could, one with a lot of unlikely incentives baked in, in order to destabilize all the other conferences. We still have no hard numbers from the B1G, which would concern the heck out of me if I were a B1G fan. The SEC had a good reason for keeping the details of our latest deal close to the vest, since we knew that the B1G would try to use them to their advantage if it got out. However, the B1G has a very strong incentive to leak the exact details of their current deal, as long as those details compare favorably to the "$7-8.4b" claims that Warren tossed out there after the deal was agreed. The fact that we're NOT getting info, and Petitti's comments last year about trying to salvage as much of the deal as he could, lead a reasonable person to assume that the B1G's numbers are not going to be quite as impressive as we were led to believe.