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Boise State Lawsuit against the MWC - Printable Version

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RE: Boise State Lawsuit against the MWC - Attackcoog - 01-25-2020 04:04 PM

(01-25-2020 02:15 PM)B easy Wrote:  
(01-25-2020 01:28 PM)johnbragg Wrote:  
(01-25-2020 01:01 PM)B easy Wrote:  
(01-25-2020 09:36 AM)quo vadis Wrote:  
(01-25-2020 02:11 AM)Sactowndog Wrote:  The MWC Presidents ended the deal because the value didn’t happen as anticipated. They gave additional revenue on the assumption Boise would replace the lost revenue with Access Bowl dollars. Those never materialized. Boise made the Access bowl earlier and hasn’t been back in quite some time.

They should have thought about that possibility before signing a deal with Boise that guarantees them that bonus in perpetuity.

Wouldn't the rule against perpetuities apply?

"No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest."

— John Chipman Gray, Rule Against Perpetuities § 201.[2]

https://www.jstor.org/stable/1113497?seq=1

https://en.wikipedia.org/wiki/Rule_against_perpetuities

Looking at that wikipedia page, that's something involving wills. So, if it remotely applies, I suppose the Boise State TV veto clause would expire 21 years after the deaths of Craig "Hair" Thompson and Bob Kustra.

Ooh, and a couple of wikipedia paragraphs later, it's been abolished in Idaho, but enacted in Colorado.


But seriously I don't think that applies.

The provision looks to be perpetual until:
Case 1. Boise State and the Mountain West mutually agree to void and replace it (This would include Boise State leaving the MWC, under the MWC exit bylaws)

Case 2. Mountain West breaches the contract, voiding it, which would return Boise STate's home football television rights to Boise State.

Case 3. Boise State somehow breaching the contract--I can't think of an example of what Boise could plausibly or implausibly do to void the contract, but if they did, I guess the contract voids, Boise State gets their home TV rights back, and Boise probably owes the Mountain West monetary damages for whatever they did to breach the contract.

This is much less like trying to put permanent conditions on a bequest in a will ("No heir to this property will marry a godforsaken ginger") and more like the deal the owners of the Spirits of St Louis made when the NBA absorbed the ABA. The Spirits' owners sold their franchise to the NBA for a share of NBA TV revenue, and cashed checks until 2015 when the NBA finally bought them out for a huge lump sum.


It usually applies to wills and was originally created because of public policy concerns regarding the 'dead hand' controlling interests far into the future. However, it can also apply to contracts as well, particularly option contracts. The key is that the interest must vest no later than within 21 years of any life in being at the creation of the interest. It's actually a lot more confusing than it may 1st appear. For instance, review the unborn widow rule or fertile octogenarian example to truly understand how this rule can cause serious consequences if the language is not drafted appropriately.

So the question is whether any part of the contract violates the rule against perpetuities and if so those clauses could be voided all together as a result.

https://en.wikipedia.org/wiki/Illustrations_of_the_rule_against_perpetuities#The_fertile_octogenarian

https://en.wikipedia.org/wiki/Illustrations_of_the_rule_against_perpetuities#The_unborn_widow

It is also significant that Colorado is the head quarters of the conference.

Is a clause considered perpetual if there is an exit option? Clearly, Boise has the right to exit the conference and the conference clearly has a mechanism by which they can conclude the agreement to expel Boise?


RE: Boise State Lawsuit against the MWC - RutgersGuy - 01-25-2020 04:53 PM

New Mexico State:

[Image: giphy.gif]


RE: Boise State Lawsuit against the MWC - RutgersGuy - 01-25-2020 04:59 PM

(01-24-2020 05:45 PM)DavidSt Wrote:  
(01-24-2020 05:27 PM)arkstfan Wrote:  
(01-24-2020 04:46 PM)quo vadis Wrote:  
(01-24-2020 04:44 PM)stever20 Wrote:  Also just as big is while the money might be ok- maybe, I'd venture a guess the exposure would be down big time. And if the AAC went for Boise, SDSU, and Air Force, it's utterly game over for the MWC.

Agree that if Boise leaves the MW, the MW is greatly diminished, and if it lost all three of those it would probably be the weakest of the G5 conferences on the field and in brand value. Gutted.

But I have doubts about whether the AAC can lure any of Boise, Air Force, or SDSU away.

When MWC ditched ESPN the last time, ESPN responded by giving WAC a pretty nice raise that lifted the league notably above MAC and Sun Belt money.

Time zones matter and ESPN didn't treat western non-AQ football as strictly a commodity, it wasn't far removed from that.

MWC sans Boise is likely still going to be priced as the second most valuable G5 league. They can offer a useful time zone that Pac-12 is growing less inclined to fill and they offer proximity that makes scheduling useful. A quick count, 6 MWC schools that are not Boise State and are not Hawaii host a P5 in 2020.

I've dealt with Thompson, he's no dummy. Throwing down the gauntlet so quickly with Boise State makes me think he and the presidents have a pretty good idea that they are no worse off economically sans Boise State than they are if Boise State remains and gets an extra helping from the serving tray.

I don't think they want Boise to walk because Boise State does have a great brand but if they force the Broncos to stare into the abyss and conclude that they are worse off if they leave, then the other 10 equity members get more money.

The real questions are
Can Boise leave and do better financially?
The league obviously believes the answer is No. If they thought it were Yes they would be in Iowa State and Baylor mode dealing with OU and UT.
Can Boise leave and be in a roughly equal situation?
Maybe MWC believes the answer is No which makes the play logical or they are hoping the calculation is such that Boise's new leadership wouldn't roll the dice where Kustra might have.

Timing is interesting as well. There has to be a reason to pull the pin on that grenade right now rather than closer to the next contract.


The Fox/CBS deal is with Boise State. Boise State goes independent? MWC gets weaken, and they can not fulfill the agreement as the deal is void, and MWC will wind up with a new deal which would be far less.

No, it doesn't void the agreement, at least not right away. Just look at the AAC deal when UConn left. Contract wasn't voided. The MWC can quickly add a 12th team and the conference still provides the same amount of games and in fact actually adds content for the new conference since their home games would be under the MWC contract.

Seriously, this is what New Mexico State hopes happens. And without them as an indy it makes things just that much harder for the other indy's. One less school who is willing to schedule a long running H&H series with.


RE: Boise State Lawsuit against the MWC - RutgersGuy - 01-25-2020 05:07 PM

(01-25-2020 12:43 AM)SoCalBobcat78 Wrote:  
(01-24-2020 06:42 PM)ken d Wrote:  Take Boise and SDSU out of the MWC, and that league is probably not worth more than $20 million. It's no better than the Sun Belt or CUSA. But that's not the same thing as saying that those two as independents would be worth $25 million combined. They probably wouldn't, IMO. Fact is the total value of the 12 schools would likely be less if they were to split up. Each side needs the other.

San Diego State is not leaving the MWC. I suspect that SDSU was one of the two schools trying to end the Boise State bonus. This is all about Boise State football. They want more revenue and at least two schools want revenue distribution to be equal among the schools. I think they will come to an agreement, but if I am wrong it will only be Boise State leaving. SDSU complains about travel within the MWC. The last thing they want to do is travel even further East.

I would say SDSt and Fresno had the main issue since they are actively trying to compete with Boise at the top of the conference. I guess maybe Hawaii could have had an issue.


RE: Boise State Lawsuit against the MWC - johnbragg - 01-25-2020 05:13 PM

(01-25-2020 04:59 PM)RutgersGuy Wrote:  
(01-24-2020 05:45 PM)DavidSt Wrote:  
(01-24-2020 05:27 PM)arkstfan Wrote:  
(01-24-2020 04:46 PM)quo vadis Wrote:  
(01-24-2020 04:44 PM)stever20 Wrote:  Also just as big is while the money might be ok- maybe, I'd venture a guess the exposure would be down big time. And if the AAC went for Boise, SDSU, and Air Force, it's utterly game over for the MWC.

Agree that if Boise leaves the MW, the MW is greatly diminished, and if it lost all three of those it would probably be the weakest of the G5 conferences on the field and in brand value. Gutted.

But I have doubts about whether the AAC can lure any of Boise, Air Force, or SDSU away.

When MWC ditched ESPN the last time, ESPN responded by giving WAC a pretty nice raise that lifted the league notably above MAC and Sun Belt money.

Time zones matter and ESPN didn't treat western non-AQ football as strictly a commodity, it wasn't far removed from that.

MWC sans Boise is likely still going to be priced as the second most valuable G5 league. They can offer a useful time zone that Pac-12 is growing less inclined to fill and they offer proximity that makes scheduling useful. A quick count, 6 MWC schools that are not Boise State and are not Hawaii host a P5 in 2020.

I've dealt with Thompson, he's no dummy. Throwing down the gauntlet so quickly with Boise State makes me think he and the presidents have a pretty good idea that they are no worse off economically sans Boise State than they are if Boise State remains and gets an extra helping from the serving tray.

I don't think they want Boise to walk because Boise State does have a great brand but if they force the Broncos to stare into the abyss and conclude that they are worse off if they leave, then the other 10 equity members get more money.

The real questions are
Can Boise leave and do better financially?
The league obviously believes the answer is No. If they thought it were Yes they would be in Iowa State and Baylor mode dealing with OU and UT.
Can Boise leave and be in a roughly equal situation?
Maybe MWC believes the answer is No which makes the play logical or they are hoping the calculation is such that Boise's new leadership wouldn't roll the dice where Kustra might have.

Timing is interesting as well. There has to be a reason to pull the pin on that grenade right now rather than closer to the next contract.


The Fox/CBS deal is with Boise State. Boise State goes independent? MWC gets weaken, and they can not fulfill the agreement as the deal is void, and MWC will wind up with a new deal which would be far less.

No, it doesn't void the agreement, at least not right away.

It voids major portions of the agreements. The contracts said that Fox gets Boise's home games and that CBS gets Boise's road games. If Boise leaves the MWC, then the MWC aint got no Boise games to deliver.

So those contracts would be in for serious renegotiation, in a downward direction.


RE: Boise State Lawsuit against the MWC - DavidSt - 01-25-2020 05:39 PM

Yep, Fox and CBS wants to steal Boise State from ESPN. The majority of the contract demands a Boise State. Boise State leaves? MWC is in breach of that contract so the MWC commish not only screwed Boise State, but the whole conference as a whole. He should be fired, the contract should be voided and get a commish that will get a contract with ESPN that is the same amount as AAC gets.


RE: Boise State Lawsuit against the MWC - RutgersGuy - 01-25-2020 05:41 PM

(01-25-2020 05:13 PM)johnbragg Wrote:  
(01-25-2020 04:59 PM)RutgersGuy Wrote:  
(01-24-2020 05:45 PM)DavidSt Wrote:  
(01-24-2020 05:27 PM)arkstfan Wrote:  
(01-24-2020 04:46 PM)quo vadis Wrote:  Agree that if Boise leaves the MW, the MW is greatly diminished, and if it lost all three of those it would probably be the weakest of the G5 conferences on the field and in brand value. Gutted.

But I have doubts about whether the AAC can lure any of Boise, Air Force, or SDSU away.

When MWC ditched ESPN the last time, ESPN responded by giving WAC a pretty nice raise that lifted the league notably above MAC and Sun Belt money.

Time zones matter and ESPN didn't treat western non-AQ football as strictly a commodity, it wasn't far removed from that.

MWC sans Boise is likely still going to be priced as the second most valuable G5 league. They can offer a useful time zone that Pac-12 is growing less inclined to fill and they offer proximity that makes scheduling useful. A quick count, 6 MWC schools that are not Boise State and are not Hawaii host a P5 in 2020.

I've dealt with Thompson, he's no dummy. Throwing down the gauntlet so quickly with Boise State makes me think he and the presidents have a pretty good idea that they are no worse off economically sans Boise State than they are if Boise State remains and gets an extra helping from the serving tray.

I don't think they want Boise to walk because Boise State does have a great brand but if they force the Broncos to stare into the abyss and conclude that they are worse off if they leave, then the other 10 equity members get more money.

The real questions are
Can Boise leave and do better financially?
The league obviously believes the answer is No. If they thought it were Yes they would be in Iowa State and Baylor mode dealing with OU and UT.
Can Boise leave and be in a roughly equal situation?
Maybe MWC believes the answer is No which makes the play logical or they are hoping the calculation is such that Boise's new leadership wouldn't roll the dice where Kustra might have.

Timing is interesting as well. There has to be a reason to pull the pin on that grenade right now rather than closer to the next contract.


The Fox/CBS deal is with Boise State. Boise State goes independent? MWC gets weaken, and they can not fulfill the agreement as the deal is void, and MWC will wind up with a new deal which would be far less.

No, it doesn't void the agreement, at least not right away.

It voids major portions of the agreements. The contracts said that Fox gets Boise's home games and that CBS gets Boise's road games. If Boise leaves the MWC, then the MWC aint got no Boise games to deliver.

So those contracts would be in for serious renegotiation, in a downward direction.

Renegotiation isn't the same as void.


RE: Boise State Lawsuit against the MWC - RutgersGuy - 01-25-2020 05:42 PM

(01-25-2020 05:39 PM)DavidSt Wrote:  Yep, Fox and CBS wants to steal Boise State from ESPN. The majority of the contract demands a Boise State. Boise State leaves? MWC is in breach of that contract so the MWC commish not only screwed Boise State, but the whole conference as a whole. He should be fired, the contract should be voided and get a commish that will get a contract with ESPN that is the same amount as AAC gets.

No, thats not how TV contracts work. Ask yourself why the AAC contract wasn't voided when UConn left? Or any of the Big east contracts voided when they lost members over the years? Hell the XII lost FOUR TEAMS and the TV contract wasn't voided!


RE: Boise State Lawsuit against the MWC - bullet - 01-25-2020 06:17 PM

(01-25-2020 01:28 PM)johnbragg Wrote:  
(01-25-2020 01:01 PM)B easy Wrote:  
(01-25-2020 09:36 AM)quo vadis Wrote:  
(01-25-2020 02:11 AM)Sactowndog Wrote:  The MWC Presidents ended the deal because the value didn’t happen as anticipated. They gave additional revenue on the assumption Boise would replace the lost revenue with Access Bowl dollars. Those never materialized. Boise made the Access bowl earlier and hasn’t been back in quite some time.

They should have thought about that possibility before signing a deal with Boise that guarantees them that bonus in perpetuity.

Wouldn't the rule against perpetuities apply?

"No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest."

— John Chipman Gray, Rule Against Perpetuities § 201.[2]

https://www.jstor.org/stable/1113497?seq=1

https://en.wikipedia.org/wiki/Rule_against_perpetuities

Looking at that wikipedia page, that's something involving wills. So, if it remotely applies, I suppose the Boise State TV veto clause would expire 21 years after the deaths of Craig "Hair" Thompson and Bob Kustra.

Ooh, and a couple of wikipedia paragraphs later, it's been abolished in Idaho, but enacted in Colorado.

But seriously I don't think that applies.

The provision looks to be perpetual until:
Case 1. Boise State and the Mountain West mutually agree to void and replace it (This would include Boise State leaving the MWC, under the MWC exit bylaws)

Case 2. Mountain West breaches the contract, voiding it, which would return Boise STate's home football television rights to Boise State.

Case 3. Boise State somehow breaching the contract--I can't think of an example of what Boise could plausibly or implausibly do to void the contract, but if they did, I guess the contract voids, Boise State gets their home TV rights back, and Boise probably owes the Mountain West monetary damages for whatever they did to breach the contract.

This is much less like trying to put permanent conditions on a bequest in a will ("No heir to this property will marry a godforsaken ginger") and more like the deal the owners of the Spirits of St Louis made when the NBA absorbed the ABA. The Spirits' owners sold their franchise to the NBA for a share of NBA TV revenue, and cashed checks until 2015 when the NBA finally bought them out for a huge lump sum.

Its not anything like that. The Spirits sold a franchise as did the Kentucky Colonels. The Colonels took a lump sump and the Spirits took an annuity in lieu of the lump sum. A sale is a totally different thing than a joint TV contract.


RE: Boise State Lawsuit against the MWC - ken d - 01-25-2020 06:18 PM

(01-25-2020 05:42 PM)RutgersGuy Wrote:  
(01-25-2020 05:39 PM)DavidSt Wrote:  Yep, Fox and CBS wants to steal Boise State from ESPN. The majority of the contract demands a Boise State. Boise State leaves? MWC is in breach of that contract so the MWC commish not only screwed Boise State, but the whole conference as a whole. He should be fired, the contract should be voided and get a commish that will get a contract with ESPN that is the same amount as AAC gets.

No, thats not how TV contracts work. Ask yourself why the AAC contract wasn't voided when UConn left? Or any of the Big east contracts voided when they lost members over the years? Hell the XII lost FOUR TEAMS and the TV contract wasn't voided!


Most of us have no idea what is in the new MWC contract (or the old one) or that of any other league for that matter, except what broad strokes are released to the press. I have a hard time imagining there would be no provisions spelled out in advance as to what happens in case of a change in league membership. But it's highly unlikely either party would want to make such provisions public because of the negative connotations that would have.

When a league has one or two dominant teams (like OU and Texas), it's likely their departure would be treated differently than if it were a weak sister (like UConn football). The contract may or may not be voided as a remedy, or the amount of compensation might be reduced. It could be that there is a forced renegotiation, with the buyer having the right to pull out if they can't reach an agreement.

We can choose to believe that media companies like ESPN, Fox, CBS et al aren't very bright or that they have lousy lawyers. But I wouldn't bet on it.


RE: Boise State Lawsuit against the MWC - bullet - 01-25-2020 06:22 PM

(01-25-2020 05:42 PM)RutgersGuy Wrote:  
(01-25-2020 05:39 PM)DavidSt Wrote:  Yep, Fox and CBS wants to steal Boise State from ESPN. The majority of the contract demands a Boise State. Boise State leaves? MWC is in breach of that contract so the MWC commish not only screwed Boise State, but the whole conference as a whole. He should be fired, the contract should be voided and get a commish that will get a contract with ESPN that is the same amount as AAC gets.

No, thats not how TV contracts work. Ask yourself why the AAC contract wasn't voided when UConn left? Or any of the Big east contracts voided when they lost members over the years? Hell the XII lost FOUR TEAMS and the TV contract wasn't voided!

The contract can get voided if there is a clause about that. Probably there is a renegotiation clause for membership changes, but not one that allows Fox/CBS to walk away. The first AAC contract allowed ESPN to walk away under certain circumstances. Don't remember the exact specifications, but it was something like the loss of two "A" class schools (Houston, Cincinnati, Temple, UConn) or one "A" and two "B"s. Maybe it was one "A" or two "Bs." Something along those lines.

The AAC contract wasn't even renegotiated (so far as we know) because UConn was no more valuable than average. The Big 12 terms didn't go down because the contract was priced under current market value even with those schools gone, so ESPN had no legal right to lower their payouts.


RE: Boise State Lawsuit against the MWC - bullet - 01-25-2020 06:25 PM

Think the term they use is "conference composition."


RE: Boise State Lawsuit against the MWC - B easy - 01-25-2020 06:28 PM

(01-25-2020 04:04 PM)Attackcoog Wrote:  
(01-25-2020 02:15 PM)B easy Wrote:  
(01-25-2020 01:28 PM)johnbragg Wrote:  
(01-25-2020 01:01 PM)B easy Wrote:  
(01-25-2020 09:36 AM)quo vadis Wrote:  They should have thought about that possibility before signing a deal with Boise that guarantees them that bonus in perpetuity.

Wouldn't the rule against perpetuities apply?

"No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest."

— John Chipman Gray, Rule Against Perpetuities § 201.[2]

https://www.jstor.org/stable/1113497?seq=1

https://en.wikipedia.org/wiki/Rule_against_perpetuities

Looking at that wikipedia page, that's something involving wills. So, if it remotely applies, I suppose the Boise State TV veto clause would expire 21 years after the deaths of Craig "Hair" Thompson and Bob Kustra.

Ooh, and a couple of wikipedia paragraphs later, it's been abolished in Idaho, but enacted in Colorado.


But seriously I don't think that applies.

The provision looks to be perpetual until:
Case 1. Boise State and the Mountain West mutually agree to void and replace it (This would include Boise State leaving the MWC, under the MWC exit bylaws)

Case 2. Mountain West breaches the contract, voiding it, which would return Boise STate's home football television rights to Boise State.

Case 3. Boise State somehow breaching the contract--I can't think of an example of what Boise could plausibly or implausibly do to void the contract, but if they did, I guess the contract voids, Boise State gets their home TV rights back, and Boise probably owes the Mountain West monetary damages for whatever they did to breach the contract.

This is much less like trying to put permanent conditions on a bequest in a will ("No heir to this property will marry a godforsaken ginger") and more like the deal the owners of the Spirits of St Louis made when the NBA absorbed the ABA. The Spirits' owners sold their franchise to the NBA for a share of NBA TV revenue, and cashed checks until 2015 when the NBA finally bought them out for a huge lump sum.


It usually applies to wills and was originally created because of public policy concerns regarding the 'dead hand' controlling interests far into the future. However, it can also apply to contracts as well, particularly option contracts. The key is that the interest must vest no later than within 21 years of any life in being at the creation of the interest. It's actually a lot more confusing than it may 1st appear. For instance, review the unborn widow rule or fertile octogenarian example to truly understand how this rule can cause serious consequences if the language is not drafted appropriately.

So the question is whether any part of the contract violates the rule against perpetuities and if so those clauses could be voided all together as a result.

https://en.wikipedia.org/wiki/Illustrations_of_the_rule_against_perpetuities#The_fertile_octogenarian

https://en.wikipedia.org/wiki/Illustrations_of_the_rule_against_perpetuities#The_unborn_widow

It is also significant that Colorado is the head quarters of the conference.

Is a clause considered perpetual if there is an exit option? Clearly, Boise has the right to exit the conference and the conference clearly has a mechanism by which they can conclude the agreement to expel Boise?

Contracts were made to be broken as they say. Usually there are contingency clauses that explicitly stipulate damages for potential foreseeable breaches. If not, then compensatory and expectation damages come into play but must be proven via specific and not speculative evidence. If any clause is voided due to violating any of the rules of contract law then typically the remainder of the contract remains intact. Many states are moving more towards freedom of contract.

Sometimes there's an arbitration clause that stipulates which tribunal will hear a case and which state's laws apply. If there is no arbitration clause and an entity does business outside of its own state then they have availed themselves to any other jurisdiction that they do business in, so a defendant (MWC) could possibly remove the case to another jurisdiction but the state law where the dispute arose will apply. If Boise State is not currently being damaged by any of the MWC's actions then a court may not hear the case due to lack of ripeness.

The MWC may have thought about what the consequences would be and drafted the contract accordingly. A lot of it depends on who had the better lawyers and/or bargaining power. Also, any ambiguities about a material issue in the contract will be decided in the favor of the non-drafting party.

I really haven't looked at any of the contract but if someone cares to post the pertinent language I'll give a cursory opinion when I find the time.


RE: Boise State Lawsuit against the MWC - johnbragg - 01-25-2020 08:18 PM

(01-25-2020 05:42 PM)RutgersGuy Wrote:  
(01-25-2020 05:39 PM)DavidSt Wrote:  Yep, Fox and CBS wants to steal Boise State from ESPN. The majority of the contract demands a Boise State. Boise State leaves? MWC is in breach of that contract so the MWC commish not only screwed Boise State, but the whole conference as a whole. He should be fired, the contract should be voided and get a commish that will get a contract with ESPN that is the same amount as AAC gets.

No, thats not how TV contracts work. Ask yourself why the AAC contract wasn't voided when UConn left? Or any of the Big east contracts voided when they lost members over the years? Hell the XII lost FOUR TEAMS and the TV contract wasn't voided!

The networks absolutely had the option to renegotiate, or in some circumstances void the deal. ESPN chooses not to as a policy (Clay Travis' explanation was that they didn't want to go to discovery about tortious interference in conferences' realignment decisions.) Fox and CBS-SN, CUSA's partners, slashed their contract after the 2011-13 realignment.

For ESPN, carrying the diminished Big 12 tier 1 at the same rate as the full Big 12 Tier 1 was an acceptable cost.

For the Mountain West TV contract, Boise State is a big part of the value of the deal. There are specific provisions for Fox to get Boise State home games and CBS to get Boise State road games. If the Mountain West can't deliver that, they're in breach. l


RE: Boise State Lawsuit against the MWC - RutgersGuy - 01-25-2020 10:59 PM

(01-25-2020 08:18 PM)johnbragg Wrote:  
(01-25-2020 05:42 PM)RutgersGuy Wrote:  
(01-25-2020 05:39 PM)DavidSt Wrote:  Yep, Fox and CBS wants to steal Boise State from ESPN. The majority of the contract demands a Boise State. Boise State leaves? MWC is in breach of that contract so the MWC commish not only screwed Boise State, but the whole conference as a whole. He should be fired, the contract should be voided and get a commish that will get a contract with ESPN that is the same amount as AAC gets.

No, thats not how TV contracts work. Ask yourself why the AAC contract wasn't voided when UConn left? Or any of the Big east contracts voided when they lost members over the years? Hell the XII lost FOUR TEAMS and the TV contract wasn't voided!

The networks absolutely had the option to renegotiate, or in some circumstances void the deal. ESPN chooses not to as a policy (Clay Travis' explanation was that they didn't want to go to discovery about tortious interference in conferences' realignment decisions.) Fox and CBS-SN, CUSA's partners, slashed their contract after the 2011-13 realignment.

For ESPN, carrying the diminished Big 12 tier 1 at the same rate as the full Big 12 Tier 1 was an acceptable cost.

For the Mountain West TV contract, Boise State is a big part of the value of the deal. There are specific provisions for Fox to get Boise State home games and CBS to get Boise State road games. If the Mountain West can't deliver that, they're in breach. l
Where did I say they don't have the right to renegotiate? I'm saying they wont void the contract.


RE: Boise State Lawsuit against the MWC - quo vadis - 01-25-2020 11:15 PM

(01-25-2020 04:04 PM)Attackcoog Wrote:  
(01-25-2020 02:15 PM)B easy Wrote:  
(01-25-2020 01:28 PM)johnbragg Wrote:  
(01-25-2020 01:01 PM)B easy Wrote:  
(01-25-2020 09:36 AM)quo vadis Wrote:  They should have thought about that possibility before signing a deal with Boise that guarantees them that bonus in perpetuity.

Wouldn't the rule against perpetuities apply?

"No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest."

— John Chipman Gray, Rule Against Perpetuities § 201.[2]

https://www.jstor.org/stable/1113497?seq=1

https://en.wikipedia.org/wiki/Rule_against_perpetuities

Looking at that wikipedia page, that's something involving wills. So, if it remotely applies, I suppose the Boise State TV veto clause would expire 21 years after the deaths of Craig "Hair" Thompson and Bob Kustra.

Ooh, and a couple of wikipedia paragraphs later, it's been abolished in Idaho, but enacted in Colorado.


But seriously I don't think that applies.

The provision looks to be perpetual until:
Case 1. Boise State and the Mountain West mutually agree to void and replace it (This would include Boise State leaving the MWC, under the MWC exit bylaws)

Case 2. Mountain West breaches the contract, voiding it, which would return Boise STate's home football television rights to Boise State.

Case 3. Boise State somehow breaching the contract--I can't think of an example of what Boise could plausibly or implausibly do to void the contract, but if they did, I guess the contract voids, Boise State gets their home TV rights back, and Boise probably owes the Mountain West monetary damages for whatever they did to breach the contract.

This is much less like trying to put permanent conditions on a bequest in a will ("No heir to this property will marry a godforsaken ginger") and more like the deal the owners of the Spirits of St Louis made when the NBA absorbed the ABA. The Spirits' owners sold their franchise to the NBA for a share of NBA TV revenue, and cashed checks until 2015 when the NBA finally bought them out for a huge lump sum.


It usually applies to wills and was originally created because of public policy concerns regarding the 'dead hand' controlling interests far into the future. However, it can also apply to contracts as well, particularly option contracts. The key is that the interest must vest no later than within 21 years of any life in being at the creation of the interest. It's actually a lot more confusing than it may 1st appear. For instance, review the unborn widow rule or fertile octogenarian example to truly understand how this rule can cause serious consequences if the language is not drafted appropriately.

So the question is whether any part of the contract violates the rule against perpetuities and if so those clauses could be voided all together as a result.

https://en.wikipedia.org/wiki/Illustrations_of_the_rule_against_perpetuities#The_fertile_octogenarian

https://en.wikipedia.org/wiki/Illustrations_of_the_rule_against_perpetuities#The_unborn_widow

It is also significant that Colorado is the head quarters of the conference.

Is a clause considered perpetual if there is an exit option? Clearly, Boise has the right to exit the conference and the conference clearly has a mechanism by which they can conclude the agreement to expel Boise?

Yes, exit/expulsion renders the tv deal clause null, as that clause depends on Boise being a MW member.


RE: Boise State Lawsuit against the MWC - Sactowndog - 01-25-2020 11:37 PM

(01-24-2020 02:59 PM)Attackcoog Wrote:  
(01-24-2020 12:15 PM)quo vadis Wrote:  
(01-24-2020 11:34 AM)Attackcoog Wrote:  
(01-23-2020 07:13 PM)quo vadis Wrote:  
(01-23-2020 06:18 PM)MWC Tex Wrote:  Here is quote from BSU rep about the new TV deal.

”ESPN has been a great partner of Boise State – and the Mountain West – for a long time, and we had some hesitation about moving away from that relationship. However, the terms and value offered to the Mountain West by FOX were better. We feel that our new partner is committed to helping Boise State continue to grow our brand and raise our institutional profile across the nation.”

https://www.nbcrightnow.com/sports/national/boise-state-ready-to-fight-mountain-west-over-extra-tv/article_17ff23c2-c4a9-52a9-a08c-eb210bc0be77.html

That statement, describing FOX as their "new partner" seems to imply that Boise did agree to the TV deal that was negotiated on their behalf by the MWC.

If so, they really don't have any grounds for their complaint, as the MWC vote to end paying them the bonus in 2025 seems irrelevant until the MWC actually misses a payment.

For all we know that quote was created by a low level athletic department communications official when the expectation was that the MW would forward over the relevant info on the deal and, if it contained what they were being told, Boise would then sign off. They never sent the info—or they did—-and the deal didn’t match the promises.

Here is what I think is really going on. Boise never accepted the deal. The law suit spells out the particulars and you can see the Boise strategy if you read between the lines. The Boise strategy was to delay acceptance, using their contract veto power as a lever to force the MW to bump up their bonus to reflect the proportional increase in the new deal. When the MW accepted the deal without Boise consent, they took away Boise’s leverage—but in doing so—violated the Boise term sheet agreement.

Unless the MW can produce a signature showing that Boise signed off on the deal, then the MW clearly violated the agreement and will lose in court. Thus, this will be settled with the MW issuing a statement that the Boise bonus is increasing to “X” (that’s negotiable and will likely be less than the proportional increase Boise wants) and that the “Boise bonus” is a permanent fixture in the leagues media structure which can only be altered or eliminated by mutual agreement of both parties. Boise will probably make moving noises right up to the time that the bluff turns real—-which is the exact moment the MW will fold and give Boise most all of what they want. That’s been the pattern in the past.

I think the end result is Boise doesn’t move, but sets up a landscape in which it’s possible for the AAC to pick off an unhappy eastern member of the MW as an all sports addition (or possibly AF as a football only)l. I don’t think the math works for Boise. It does for certain other members.

Yes, as I said far back in the post, the onus is on the MW to produce evidence that Boise signed off on their segment of the deal.

But I suspect they have that evidence. The MW commissioner doesn't strike me as the kind of guy who wouldn't know something basic like Boise having to agree to their portion of the deal, and wouldn't make a statement announcing the deal unless the deal really was done in all respects. I suspect Boise screwed up and agreed to the deal without having made sure they were getting a bigger bonus. The complaint is about trying to undo that mistake and get the bigger bonus. IMO that's why there is fuzzy language in the complaint about Boise not being given all the specifics and MW officials not following through on alleged pledges to get the Board to agree to a bonus increase. That strikes me as Boise trying to say there was bad faith on the part of the MW and therefore the deal is invalid.

One thing that makes me think that is that Boise's ire wasn't triggered until the MW commissioner made that statement about ending the $1.8m bonus in 2026. IIRC Boise publicly objected to that, not the real issue, the enhanced bonus. I bet they were stewing over not getting a bigger bonus to begin with, but they were going to eat that, but this public announcement about ending it entirely was too much for their ego. That's when they replied. All the public talk was about ending the $1.8m in 2026 - and that is purely ego related, as it has zero to do with dollars now or even the next five years. The real issue that is in play now is the Boise desire for a boost to their bonus.

That said, like you, I think what is most likely to happen is that a deal is being hammered out, probably as we speak, and that deal will come to fruition, with Boise remaining in the MW but also getting a boost on that $1.8m bonus.

But I am not sure that will happen. It's possible that an impasse could be reached, there does seem to be some evidence that the other MW members are fed up with escalating Boise demands, and the public nature of the spat has now created a "loss of face" situation for both sides, which tends to harden everyone's position. Kind of like how AAC officials bristled at the notion of UConn keeping their football in the AAC after announcing they were leaving for the Big East.

If that happens then it could get very messy and who knows what the result will be and where Boise will end up.

We shall see.

I dont think Thompson was the problem. Again, the law suit tells us what we need to know. I suspect the MW presidents drove this decision. Two MW presidents voted to end the Boise special deal IMMEDIATELY (an obvious violation of the agreement). All the presidents (other than Boise) voted to end it when the new CBS/FOX deal expires (again, a violation of the term sheet).

Seems obvious to me the presidents are sick of the deal, believe it should end, and apparently were not willing to allow the term sheet from interfering with the new FOX/CBS deal. Ignoring Boise's lack of consent is perfectly congruent with the other two votes that we know occurred (as Thompson's comments about ending the Boise special deal basically confirm that these conference votes alleged by Boise actually occurred). I have little doubt that Boise never gave the MW its consent. The law suit is calling the MW presidents bluff. Here is the thing---the lawsuit has no value as a negotiating tool unless Boise never gave its consent---which is why I suspect they, in fact, did not give their consent. If you notice--the MW has not denied any claim in the suit.

The way I see it---the purpose of the MW presidents accepting the deal without Boise's consent was to remove the Boise ability to hold the leagues tv deal hostage until the Boise "bonus" increase demands were satisfied by the league. The purpose of the law suit is to reinstate Boise's leverage.

Not sure what the board lawyers here think but lawyers on the MWC board have stated that given
1) the contract called for 1.8M and
2) Boise was leveraging their agreement to get a higher amount

that in fact Boise acted in bad faith and breached the agreement by leveraging their consent requirement to force a change in the payment amount.


RE: Boise State Lawsuit against the MWC - quo vadis - 01-26-2020 12:33 AM

(01-25-2020 11:37 PM)Sactowndog Wrote:  
(01-24-2020 02:59 PM)Attackcoog Wrote:  
(01-24-2020 12:15 PM)quo vadis Wrote:  
(01-24-2020 11:34 AM)Attackcoog Wrote:  
(01-23-2020 07:13 PM)quo vadis Wrote:  That statement, describing FOX as their "new partner" seems to imply that Boise did agree to the TV deal that was negotiated on their behalf by the MWC.

If so, they really don't have any grounds for their complaint, as the MWC vote to end paying them the bonus in 2025 seems irrelevant until the MWC actually misses a payment.

For all we know that quote was created by a low level athletic department communications official when the expectation was that the MW would forward over the relevant info on the deal and, if it contained what they were being told, Boise would then sign off. They never sent the info—or they did—-and the deal didn’t match the promises.

Here is what I think is really going on. Boise never accepted the deal. The law suit spells out the particulars and you can see the Boise strategy if you read between the lines. The Boise strategy was to delay acceptance, using their contract veto power as a lever to force the MW to bump up their bonus to reflect the proportional increase in the new deal. When the MW accepted the deal without Boise consent, they took away Boise’s leverage—but in doing so—violated the Boise term sheet agreement.

Unless the MW can produce a signature showing that Boise signed off on the deal, then the MW clearly violated the agreement and will lose in court. Thus, this will be settled with the MW issuing a statement that the Boise bonus is increasing to “X” (that’s negotiable and will likely be less than the proportional increase Boise wants) and that the “Boise bonus” is a permanent fixture in the leagues media structure which can only be altered or eliminated by mutual agreement of both parties. Boise will probably make moving noises right up to the time that the bluff turns real—-which is the exact moment the MW will fold and give Boise most all of what they want. That’s been the pattern in the past.

I think the end result is Boise doesn’t move, but sets up a landscape in which it’s possible for the AAC to pick off an unhappy eastern member of the MW as an all sports addition (or possibly AF as a football only)l. I don’t think the math works for Boise. It does for certain other members.

Yes, as I said far back in the post, the onus is on the MW to produce evidence that Boise signed off on their segment of the deal.

But I suspect they have that evidence. The MW commissioner doesn't strike me as the kind of guy who wouldn't know something basic like Boise having to agree to their portion of the deal, and wouldn't make a statement announcing the deal unless the deal really was done in all respects. I suspect Boise screwed up and agreed to the deal without having made sure they were getting a bigger bonus. The complaint is about trying to undo that mistake and get the bigger bonus. IMO that's why there is fuzzy language in the complaint about Boise not being given all the specifics and MW officials not following through on alleged pledges to get the Board to agree to a bonus increase. That strikes me as Boise trying to say there was bad faith on the part of the MW and therefore the deal is invalid.

One thing that makes me think that is that Boise's ire wasn't triggered until the MW commissioner made that statement about ending the $1.8m bonus in 2026. IIRC Boise publicly objected to that, not the real issue, the enhanced bonus. I bet they were stewing over not getting a bigger bonus to begin with, but they were going to eat that, but this public announcement about ending it entirely was too much for their ego. That's when they replied. All the public talk was about ending the $1.8m in 2026 - and that is purely ego related, as it has zero to do with dollars now or even the next five years. The real issue that is in play now is the Boise desire for a boost to their bonus.

That said, like you, I think what is most likely to happen is that a deal is being hammered out, probably as we speak, and that deal will come to fruition, with Boise remaining in the MW but also getting a boost on that $1.8m bonus.

But I am not sure that will happen. It's possible that an impasse could be reached, there does seem to be some evidence that the other MW members are fed up with escalating Boise demands, and the public nature of the spat has now created a "loss of face" situation for both sides, which tends to harden everyone's position. Kind of like how AAC officials bristled at the notion of UConn keeping their football in the AAC after announcing they were leaving for the Big East.

If that happens then it could get very messy and who knows what the result will be and where Boise will end up.

We shall see.

I dont think Thompson was the problem. Again, the law suit tells us what we need to know. I suspect the MW presidents drove this decision. Two MW presidents voted to end the Boise special deal IMMEDIATELY (an obvious violation of the agreement). All the presidents (other than Boise) voted to end it when the new CBS/FOX deal expires (again, a violation of the term sheet).

Seems obvious to me the presidents are sick of the deal, believe it should end, and apparently were not willing to allow the term sheet from interfering with the new FOX/CBS deal. Ignoring Boise's lack of consent is perfectly congruent with the other two votes that we know occurred (as Thompson's comments about ending the Boise special deal basically confirm that these conference votes alleged by Boise actually occurred). I have little doubt that Boise never gave the MW its consent. The law suit is calling the MW presidents bluff. Here is the thing---the lawsuit has no value as a negotiating tool unless Boise never gave its consent---which is why I suspect they, in fact, did not give their consent. If you notice--the MW has not denied any claim in the suit.

The way I see it---the purpose of the MW presidents accepting the deal without Boise's consent was to remove the Boise ability to hold the leagues tv deal hostage until the Boise "bonus" increase demands were satisfied by the league. The purpose of the law suit is to reinstate Boise's leverage.

Not sure what the board lawyers here think but lawyers on the MWC board have stated that given
1) the contract called for 1.8M and
2) Boise was leveraging their agreement to get a higher amount

that in fact Boise acted in bad faith and breached the agreement by leveraging their consent requirement to force a change in the payment amount.

I don't see how that makes sense. There is nothing wrong with trying to change an agreement, including using leverage.

I mean, imagine if my landlady and I have a signed rental agreement by which I pay $1000 a month rent. Then she gets the hots for me and asks me out on a date. Am I in breach of contract if I say I will, if she drops my rent to $900 a month? Of course not.


RE: Boise State Lawsuit against the MWC - B easy - 01-26-2020 12:56 AM

(01-25-2020 11:37 PM)Sactowndog Wrote:  
(01-24-2020 02:59 PM)Attackcoog Wrote:  
(01-24-2020 12:15 PM)quo vadis Wrote:  
(01-24-2020 11:34 AM)Attackcoog Wrote:  
(01-23-2020 07:13 PM)quo vadis Wrote:  That statement, describing FOX as their "new partner" seems to imply that Boise did agree to the TV deal that was negotiated on their behalf by the MWC.

If so, they really don't have any grounds for their complaint, as the MWC vote to end paying them the bonus in 2025 seems irrelevant until the MWC actually misses a payment.

For all we know that quote was created by a low level athletic department communications official when the expectation was that the MW would forward over the relevant info on the deal and, if it contained what they were being told, Boise would then sign off. They never sent the info—or they did—-and the deal didn’t match the promises.

Here is what I think is really going on. Boise never accepted the deal. The law suit spells out the particulars and you can see the Boise strategy if you read between the lines. The Boise strategy was to delay acceptance, using their contract veto power as a lever to force the MW to bump up their bonus to reflect the proportional increase in the new deal. When the MW accepted the deal without Boise consent, they took away Boise’s leverage—but in doing so—violated the Boise term sheet agreement.

Unless the MW can produce a signature showing that Boise signed off on the deal, then the MW clearly violated the agreement and will lose in court. Thus, this will be settled with the MW issuing a statement that the Boise bonus is increasing to “X” (that’s negotiable and will likely be less than the proportional increase Boise wants) and that the “Boise bonus” is a permanent fixture in the leagues media structure which can only be altered or eliminated by mutual agreement of both parties. Boise will probably make moving noises right up to the time that the bluff turns real—-which is the exact moment the MW will fold and give Boise most all of what they want. That’s been the pattern in the past.

I think the end result is Boise doesn’t move, but sets up a landscape in which it’s possible for the AAC to pick off an unhappy eastern member of the MW as an all sports addition (or possibly AF as a football only)l. I don’t think the math works for Boise. It does for certain other members.

Yes, as I said far back in the post, the onus is on the MW to produce evidence that Boise signed off on their segment of the deal.

But I suspect they have that evidence. The MW commissioner doesn't strike me as the kind of guy who wouldn't know something basic like Boise having to agree to their portion of the deal, and wouldn't make a statement announcing the deal unless the deal really was done in all respects. I suspect Boise screwed up and agreed to the deal without having made sure they were getting a bigger bonus. The complaint is about trying to undo that mistake and get the bigger bonus. IMO that's why there is fuzzy language in the complaint about Boise not being given all the specifics and MW officials not following through on alleged pledges to get the Board to agree to a bonus increase. That strikes me as Boise trying to say there was bad faith on the part of the MW and therefore the deal is invalid.

One thing that makes me think that is that Boise's ire wasn't triggered until the MW commissioner made that statement about ending the $1.8m bonus in 2026. IIRC Boise publicly objected to that, not the real issue, the enhanced bonus. I bet they were stewing over not getting a bigger bonus to begin with, but they were going to eat that, but this public announcement about ending it entirely was too much for their ego. That's when they replied. All the public talk was about ending the $1.8m in 2026 - and that is purely ego related, as it has zero to do with dollars now or even the next five years. The real issue that is in play now is the Boise desire for a boost to their bonus.

That said, like you, I think what is most likely to happen is that a deal is being hammered out, probably as we speak, and that deal will come to fruition, with Boise remaining in the MW but also getting a boost on that $1.8m bonus.

But I am not sure that will happen. It's possible that an impasse could be reached, there does seem to be some evidence that the other MW members are fed up with escalating Boise demands, and the public nature of the spat has now created a "loss of face" situation for both sides, which tends to harden everyone's position. Kind of like how AAC officials bristled at the notion of UConn keeping their football in the AAC after announcing they were leaving for the Big East.

If that happens then it could get very messy and who knows what the result will be and where Boise will end up.

We shall see.

I dont think Thompson was the problem. Again, the law suit tells us what we need to know. I suspect the MW presidents drove this decision. Two MW presidents voted to end the Boise special deal IMMEDIATELY (an obvious violation of the agreement). All the presidents (other than Boise) voted to end it when the new CBS/FOX deal expires (again, a violation of the term sheet).

Seems obvious to me the presidents are sick of the deal, believe it should end, and apparently were not willing to allow the term sheet from interfering with the new FOX/CBS deal. Ignoring Boise's lack of consent is perfectly congruent with the other two votes that we know occurred (as Thompson's comments about ending the Boise special deal basically confirm that these conference votes alleged by Boise actually occurred). I have little doubt that Boise never gave the MW its consent. The law suit is calling the MW presidents bluff. Here is the thing---the lawsuit has no value as a negotiating tool unless Boise never gave its consent---which is why I suspect they, in fact, did not give their consent. If you notice--the MW has not denied any claim in the suit.

The way I see it---the purpose of the MW presidents accepting the deal without Boise's consent was to remove the Boise ability to hold the leagues tv deal hostage until the Boise "bonus" increase demands were satisfied by the league. The purpose of the law suit is to reinstate Boise's leverage.

Not sure what the board lawyers here think but lawyers on the MWC board have stated that given
1) the contract called for 1.8M and
2) Boise was leveraging their agreement to get a higher amount

that in fact Boise acted in bad faith and breached the agreement by leveraging their consent requirement to force a change in the payment amount.

I would need more information about BSU's precise actions to determine if I thought it rises to bad faith dealings. The threshold for bad faith is usually slightly below outright criminal fraud and is adjudicated differently by various jurisdictions. It's determined on a case-by-case basis contingent upon a totality of the circumstances determination of multiple factors. It always involves deceit and is typically determined by the reasonably prudent person standard. The ramifications of a judge finding bad faith also varies per jurisdiction. For example, in NC (and I imagine most jurisdictions), it can create punitive damages and be grounds to compel payment for an opponent's legal fees as well, inter alia.

I would also need to know more information to determine if and how either party breached. Again, I haven't looked at any of the K's language and the 4-corners of the contract usually rules. I will say that if BSU waited till assurances were made and then pushed for additional demands once the situation became time sensitive, then an agreement could be voided due to duress, coercion, &/or undue influence depending on the circumstances.


RE: Boise State Lawsuit against the MWC - Attackcoog - 01-26-2020 01:37 AM

(01-25-2020 05:42 PM)RutgersGuy Wrote:  
(01-25-2020 05:39 PM)DavidSt Wrote:  Yep, Fox and CBS wants to steal Boise State from ESPN. The majority of the contract demands a Boise State. Boise State leaves? MWC is in breach of that contract so the MWC commish not only screwed Boise State, but the whole conference as a whole. He should be fired, the contract should be voided and get a commish that will get a contract with ESPN that is the same amount as AAC gets.

No, thats not how TV contracts work. Ask yourself why the AAC contract wasn't voided when UConn left? Or any of the Big east contracts voided when they lost members over the years? Hell the XII lost FOUR TEAMS and the TV contract wasn't voided!

But in this case, the MW sold something they never had the rights to (and still dont). At the very least it completely voids the Boise home game portion of the deal---as those games could still be sold to anyone at this point. It also likely voids the amount since all parties seem to be in agreement that Boise games represent a larger than typical portion of the value on the TV package.

Here is where it gets interesting, if the MW really did not have Boise consent when they agreed to the CBS/FOX deal, it would seem that CBS/FOX would have a tremendous amount of legal leverage as the MW essentially committed fraud when they agreed to the deal. If those Boise home game rights end up with anyone other than CBS/FOX, it could get really ugly.