(08-02-2015 09:48 AM)Lenvillecards Wrote: (07-27-2015 08:21 PM)CintiFan Wrote: (07-27-2015 09:49 AM)Lenvillecards Wrote: Even if the GoR is done away with, wouldn't the remaining schools have a damage claim? What is the way around that?
No. Damage claims only arise for breach of contract. If ESPN/Fox exercise contractual rights to terminate the conference media deals there is no breach.
Wouldn't such a reduction of teams (failure to maintain a membership level), is a breach by the B12; a breach which triggers termination. Those defectors would be the proximate cause of that breach, and the resultant termination of the conference's contract. As such, the remaining partners would have a cause of action against those partners whose direct actions led to the breach by the partnership. What about the concept in law of "tortious interference."
Let's get a bit more specific then. A breach only occurs if a party to a contract fails to do something they promised. If the the Big 12 promised to keep at least 'X' number of teams in the conference, and failed to do so, then yes, there would be a breach. On the other hand if the contract just gives ESPN/Fox a right to terminate if the number of teams in the Big 12 falls below a certain number - and the Big 12 made no promise to have at least 'X' members, then no, there is no breach. It's a subtle point but a very important one for contract law purposes.
But let's say the Big 12 did make a promise to have at least 10 members and two members leave - which means a breach did occur. The contract is between the conference and ESPN/Fox. A breach by one party - the conference - would allow the other party to the contract - ESPN/Fox - to claim damages. The individual conference members are not parties to the contract, so they have no claim whatsoever.
The right way for individual members to approach it would be to look at the bylaws of the Conference, which is essentially a contract among the member institutions. The bylaws restrict a school's right to withdraw, and the remaining schools could raise a claim that the withdrawing schools breached the bylaws. However, schools can't be forced to permanently stay in a conference, so that's why many conferences adopted exit fees as a way to stop teams from leaving.
Using the bylaws may give the remaining teams an avenue to raise a claim against the schools that leave, but they can bring no claim under either the conference media deal or the GOR.
Tortious interference with contract probably doesn't apply. Here's when it would.
Let's say Fox wants to get Texas in the B1G and says to Texas, "Go ahead and tell ESPN you want to cancel the LHN contract and offer to get out of it by paying $25 million - we (Fox) will cover it for you."
Tortious interference involves a third person, who is not a party to the contract, wrongfully inducing a party to terminate its contract. In the scenario where one or more teams leave the conference, I can see how someone might think tortious interference. But if all that happens is a team leaves its conference, it's hard to see a tortious interference claim. There doesn't seem to be any collusion or underhandedness about it. That's not to say such a claim may be raised - just that unless there's more to the story I don't think it's successful
Think about what happened when Maryland left for the B1G. Maryland left the ACC and the ACC raised claims about exit fees, notice and a host of other issues. The ACC did not raise a claim against the B1G for tortious interference because Delany was careful to say that they had no discussions with MD about exit fees and the exit fee was Maryland's problem. Nevertheless, the B1G paid Maryland a special travel fee of about $30 million to offset Maryland's higher travel cost to B1G locations. That amount coincidentally wound up being about the same as the negotiated exit fee Maryland paid to the ACC. A fine bit of lawyering by the B1G, I'd say.
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Is Oklahoma capable of getting out of the Big 12 before the GOR is up?
