C-USA is being silly. They SB3 will play on the Sunbelt next year. The SB3 will pay some exit fee for leaving early along the lines of forfeiting conference distributions and tv revenue (may not actually decrease value on a pro-rata basis). The C-USA argument for specific performance is going to fail. It's an extremely disfavored remedy and won't be used by the courts since monetary damages can make C-USA whole. C-USA's position is basically "you can't breach the contract because the contract says you can't breach!". It's circular reasoning. Also the Sunbelt won't be on the hook for tortious interference with a contractual relationship. The Sunbelt invited the teams to join, the SB3 said we're leaving early. In putting the SB3 on the Sunbelt schedule for a season that the SB3 have told C-USA their quitting C-USA, the Sunbelt is not interfering with anything. The SB3 would've already left C-USA and breach their contract. C-USA's beef is with the SB3 not the Sunbelt. I expect in the end each of the SB3 will have to pay $1.5-$3 mil for leaving early. C-USA is behaving childishly and nonsensically. What they are doing will only end up hurting their legal case in the end. They are trying to make their damages worse rather than adhering to their duty to Mitigate. As a result, any increased damage done to C-USA by their failure to Mitigate will be their own fault and the SB3 won't be on the hook for that.

Honestly, all the legal discussion & speculation taking place here on both sides are worth a grand total of jack plus squat, even if a few people are actual lawyers who know of what they speak. Nobody has the whole story and all the details except the people assembling the cases for either side, and it they’re wasting time farting around on message boards in the middle of all this, they need to be fired.

If this thing goes to court, the court’s gonna decide, and it sure as hell won’t be seeking any testimony or advice from here, even if there are posters who are qualified to offer some. In the end, we just have to sit back and see what happens.

(02-16-2022 09:37 AM)HarborPointe Wrote:  Honestly, all the legal discussion & speculation taking place here on both sides are worth a grand total of jack plus squat, even if a few people are actual lawyers who know of what they speak. Nobody has the whole story and all the details except the people assembling the cases for either side, and it they’re wasting time farting around on message boards in the middle of all this, they need to be fired.

If this thing goes to court, the court’s gonna decide, and it sure as hell won’t be seeking any testimony or advice from here, even if there are posters who are qualified to offer some. In the end, we just have to sit back and see what happens.

Spot on! As I said on the other board, the SBC3 will be playing in the SBC this year, they will pay CUSA more than they want, but not as much as CUSA wants.

However, "if" I am wrong, then two years from now La Tech, UTEP, and FIU won't have to worry about playing Marshall, USM, or ODU as they will get the privilege of playing Sam Houston, Jacksonville State, and New Mexico State.

CUSA "might" win the battle, but SBC3 will win the War!

(02-16-2022 08:03 AM)gdunn Wrote:  Tang let me ask you this.

I saw where a judge in Texas cannot tell a school in another state what to do, and this goes back to a NCAA case against either Ole Miss or Mississippi State. You got any insight on that?

If you can give me the parties I will do my best (seriously) to look it up.

I tried googling the combo " ncaa mississippi 'texas judge' " and didnt get any hits on a case that seemed to fit that fact pattern. Got a ton of hits to the Supreme Court case on paying athletes and a few on some issue between Mike Leach and Texas Tech.

(02-16-2022 08:15 AM)MUther Wrote:  

(02-15-2022 09:05 PM)tanqtonic Wrote:  

(02-15-2022 08:33 PM)GaSoEagle Wrote:  Just got it confirmed that the Sun Belt schedule is expected to include the SBC3. They all said they are coming July1 so the Belt is taking them at their word

Hopefully, in that regard, the exit is settled by publication of the Sun Belt schedules with the three in the mix. Otherwise there will be one very amusing intentional interference with contract lawsuit to add to the mix.

There is no interference if we've already declared we were leaving before the schedule was written. We said we're leaving. The Sun Belt said ok here's the schedule. Guess you Rice guys are dumba$$es, too.

Sorry but the facts vis a vis 'interference' dont work out that way regards to the Sun Belt.

In short, the Sun Belt, since it knows of the existing contract, cannot simply stick its head in the ground like a sand crane and accept the word of a party. Especially when there is a lot of evidence on the other side that there is still a contract.

The Sun Belt hasnt performed an action as of yet to put them in that spot, but announcing them as members for 2022 probably would.

Id make a comment on people who have to use ad homs and words like 'dumbasses' as the crux of their argument, but I'll not do so. Have a nice day Mr MUther. Ill be glad to point you to some easy materials online that deal with tortious interference if you wish.

(02-15-2022 10:44 PM)chiefsfan Wrote:  

(02-15-2022 10:40 PM)tanqtonic Wrote:  

(02-15-2022 10:36 PM)chiefsfan Wrote:  

(02-15-2022 10:32 PM)tanqtonic Wrote:  But the big question is:

Will the Sun Belt Conference itself 'go to the mattresses' for the SB3 and actively put them in their conference schedule before the issues with the CUSA are settled?

Sun Belt *could* have offered a 'yes they will be with us in 2022' today as a response to the CUSA double barrel of the threat of legal action against the SB3 and publishing their FB schedule with the SB3 members in it today.

Looks like they had no comment to directly refute that, or even a pubic comment to give aid and comfort to ODU, Marshall, and SoMiss in their mission to break away early.

If the CUSA is wholly wrong, and wholly evil, one might think the Sun Belt might give added support, jump in the deep end with their brethren to be, grab a rifle and post a brothers in arms style communication.

Maybe the idea of being tagged with an tortious interference lawsuit is a little more than they are willing to risk at this point.

The Sun Belt won't say a darn thing. Even after March 1st.

What will happen is a full schedule will be released by all 14 SBC schools that happen to include 8 Sun Belt games for the SBC3. There will be no statement about them joining the league. For all anyone knows they are playing as independents next year against the entire Sun Belt.

Can't prove interference if you say nothing.

If the dates conflict with the CUSA schedule they certainly are saying something, good sir. Its the details that matter.

Dates don't matter. As far as the Sun Belt is aware the 3 schools have said they will not be CUSA members after June 30th. It is not the SBC's job to guess whether or not that is a legal or true statement.

In addition, neither USM, Marshall, or ODU has released its football schedule yet. The SBC Schedule was sent to ESPN on Monday, prior to any CUSA schedule being released. Contractually, the league can't pull the schedule back from ESPN after Monday...

It's almost like they are timing every piece of communication perfectly.

Releasing a full 14 team schedule seems like it could be seen as interference from CUSA's point of view. It like they claim they communicated publicly to the institutions. It seems like precedence would be on the SBC3 side based on past dealing with teams that either dropped fb or left early.

Sent from my SM-G988U using Tapatalk

(02-16-2022 08:32 AM)SkullyMaroo Wrote:  

(02-16-2022 01:10 AM)tanqtonic Wrote:  Where is there, in any law, a duty to completely re-trade a deal with a breaching party? A duty to mitigate does *not* give the breaching party a free pass to breach as you seem to imply.

If you breach a contract with me, and offer me 99% of the loss, I would grant you that. If you offer me 2% of the loss, sorry charlie -- you are on the hook for the entire thing.

When the express remedy in the agreement is specific performance, there isnt much a breaching party can offer to cover that breach, mind you. I dont see how you magically get there.

If CUSA 'failed to uphold their end of the contract', what exactly is the action of breach by CUSA? Seems to me the SB3 are the sole breaching parties in this case.

I think the SBC3 have an argument that with CUSA not engaging in discussions with them and then releasing a schedule with them on it, CUSA is not making much effort to mitigate their loss. If CUSA was a landlord and USM, ODU, and Marshall were tenants that broke their lease, the landlord (CUSA) could sue for damages/loss, but they’d also have an obligation to mitigate their damages and couldn’t sue to keep the tenant in their houses against their will. Of course, CUSA might argue this is them mitigating their damage so we’ll just have to see what pans out.

The issue with this is that this isnt just a contract over straight payments of money, like a lease. The crux is that being a member in an athletic conference is pretty much on the order of a very specialized services contract.

CUSA has a very solid case that: a) there is zero obligation or duty from their part to negotiate with a breaching party; b) the very idea of breach was discussed in the original agreement, and the 'offers' didnt come close to equating what that remedy is; c) the 'offers' in no way make CUSA whole.

The obligation (yes, obligation) of a breaching party isnt a 'fair' offer -- the breaching party must make the non-breaching party whole.

In terms of mitigation, typically courts dont look at a breaching party at the point of breach to be able to mitigate --

Think of this -- you breach a lease. The day that you announce your intent to breach, you offer the landlord 15k/month as opposed to the 25k/month rent in the lease. Well, hate to tell you the landlord still has not been made whole --- your attempt at pre-mitigation will fall flat on its face. It smacks of nothing more than a re-trade of the deal.

It changes if, the day after you bolt, a third party offers 15k in rent. At that point, the duty to mitigate absolutely has an effect. The max that the landlord can come after you for at that point is the 10k in rent.

CUSA releasing the schedule and statement yesterday gives them the upper hand. Now the SBC will likely pull themselves into legal action if they release a schedule with the SBC3 on March 1, unless this is resolved by then.

Kind of wild to watch this play out after how former SBC teams left for CUSA.

(02-16-2022 10:17 AM)hburg Wrote:  Releasing a full 14 team schedule seems like it could be seen as interference from CUSA's point of view. It like they claim they communicated publicly to the institutions. It seems like precedence would be on the SBC3 side based on past dealing with teams that either dropped fb or left early.

Sent from my SM-G988U using Tapatalk

You might be putting the cart before the horse. The issue right now is that the SB3 are signatories to a contract which they are still a part of. And they cannot show that they have left in a legal manner.

Breaching a contract does not render it null and void.

(02-16-2022 10:21 AM)tanqtonic Wrote:  

(02-16-2022 08:32 AM)SkullyMaroo Wrote:  

(02-16-2022 01:10 AM)tanqtonic Wrote:  Where is there, in any law, a duty to completely re-trade a deal with a breaching party? A duty to mitigate does *not* give the breaching party a free pass to breach as you seem to imply.

If you breach a contract with me, and offer me 99% of the loss, I would grant you that. If you offer me 2% of the loss, sorry charlie -- you are on the hook for the entire thing.

When the express remedy in the agreement is specific performance, there isnt much a breaching party can offer to cover that breach, mind you. I dont see how you magically get there.

If CUSA 'failed to uphold their end of the contract', what exactly is the action of breach by CUSA? Seems to me the SB3 are the sole breaching parties in this case.

I think the SBC3 have an argument that with CUSA not engaging in discussions with them and then releasing a schedule with them on it, CUSA is not making much effort to mitigate their loss. If CUSA was a landlord and USM, ODU, and Marshall were tenants that broke their lease, the landlord (CUSA) could sue for damages/loss, but they’d also have an obligation to mitigate their damages and couldn’t sue to keep the tenant in their houses against their will. Of course, CUSA might argue this is them mitigating their damage so we’ll just have to see what pans out.

The issue with this is that this isnt just a contract over straight payments of money, like a lease. The crux is that being a member in an athletic conference is pretty much on the order of a very specialized services contract.

CUSA has a very solid case that: a) there is zero obligation or duty from their part to negotiate with a breaching party; b) the very idea of breach was discussed in the original agreement, and the 'offers' didnt come close to equating what that remedy is; c) the 'offers' in no way make CUSA whole.

The obligation (yes, obligation) of a breaching party isnt a 'fair' offer -- the breaching party must make the non-breaching party whole.

In terms of mitigation, typically courts dont look at a breaching party at the point of breach to be able to mitigate --

Think of this -- you breach a lease. The day that you announce your intent to breach, you offer the landlord 15k/month as opposed to the 25k/month rent in the lease. Well, hate to tell you the landlord still has not been made whole --- your attempt at pre-mitigation will fall flat on its face. It smacks of nothing more than a re-trade of the deal.

It changes if, the day after you bolt, a third party offers 15k in rent. At that point, the duty to mitigate absolutely has an effect. The max that the landlord can come after you for at that point is the 10k in rent.

This of mitigation this way: you have a pipe leak and you contract with a plumber to fix it. The plumber then tells you he's taking another more lucrative job and can't fulfill your contract. Rather than mitigate and hire another plumber, you just let the leak continue and damage your house for months by ignoring the problem. The first plumber isn't liable for all that water damage because you failed to Mitigate and hire another plumber. That's what C-USA is doing. They're putting their head in the sand.

(02-16-2022 10:26 AM)tanqtonic Wrote:  

(02-16-2022 10:17 AM)hburg Wrote:  Releasing a full 14 team schedule seems like it could be seen as interference from CUSA's point of view. It like they claim they communicated publicly to the institutions. It seems like precedence would be on the SBC3 side based on past dealing with teams that either dropped fb or left early.

Sent from my SM-G988U using Tapatalk

You might be putting the cart before the horse. The issue right now is that the SB3 are signatories to a contract which they are still a part of. And they cannot show that they have left in a legal manner.

Breaching a contract does not render it null and void.

Do you have access to the complete By-laws?
Do you have access to any addendums made to the agreements?
Do you have access to emails concerning this situation?
Do you have any documentation to how the current parties have acted in the past?
Do you have access to any copies of correspondence?
Are you a judge on this issue?
Are you a arbitrator/mediator on this issue?
Are you an Attorney on this issue?

My bet is the answer is no, then all your are doing is preaching a pro CUSA argument. There are still a lot of unknowns and we may never know all of the facts. And btw, if you are involved in this case, then god help CUSA that they have to fight their battles on the internet.

(02-16-2022 10:32 AM)Jugnaut Wrote:  

(02-16-2022 10:21 AM)tanqtonic Wrote:  

(02-16-2022 08:32 AM)SkullyMaroo Wrote:  

(02-16-2022 01:10 AM)tanqtonic Wrote:  Where is there, in any law, a duty to completely re-trade a deal with a breaching party? A duty to mitigate does *not* give the breaching party a free pass to breach as you seem to imply.

If you breach a contract with me, and offer me 99% of the loss, I would grant you that. If you offer me 2% of the loss, sorry charlie -- you are on the hook for the entire thing.

When the express remedy in the agreement is specific performance, there isnt much a breaching party can offer to cover that breach, mind you. I dont see how you magically get there.

If CUSA 'failed to uphold their end of the contract', what exactly is the action of breach by CUSA? Seems to me the SB3 are the sole breaching parties in this case.

I think the SBC3 have an argument that with CUSA not engaging in discussions with them and then releasing a schedule with them on it, CUSA is not making much effort to mitigate their loss. If CUSA was a landlord and USM, ODU, and Marshall were tenants that broke their lease, the landlord (CUSA) could sue for damages/loss, but they’d also have an obligation to mitigate their damages and couldn’t sue to keep the tenant in their houses against their will. Of course, CUSA might argue this is them mitigating their damage so we’ll just have to see what pans out.

The issue with this is that this isnt just a contract over straight payments of money, like a lease. The crux is that being a member in an athletic conference is pretty much on the order of a very specialized services contract.

CUSA has a very solid case that: a) there is zero obligation or duty from their part to negotiate with a breaching party; b) the very idea of breach was discussed in the original agreement, and the 'offers' didnt come close to equating what that remedy is; c) the 'offers' in no way make CUSA whole.

The obligation (yes, obligation) of a breaching party isnt a 'fair' offer -- the breaching party must make the non-breaching party whole.

In terms of mitigation, typically courts dont look at a breaching party at the point of breach to be able to mitigate --

Think of this -- you breach a lease. The day that you announce your intent to breach, you offer the landlord 15k/month as opposed to the 25k/month rent in the lease. Well, hate to tell you the landlord still has not been made whole --- your attempt at pre-mitigation will fall flat on its face. It smacks of nothing more than a re-trade of the deal.

It changes if, the day after you bolt, a third party offers 15k in rent. At that point, the duty to mitigate absolutely has an effect. The max that the landlord can come after you for at that point is the 10k in rent.

This of mitigation this way: you have a pipe leak and you contract with a plumber to fix it. The plumber then tells you he's taking another more lucrative job and can't fulfill your contract. Rather than mitigate and hire another plumber, you just let the leak continue and damage your house for months by ignoring the problem. The first plumber isn't liable for all that water damage because you failed to Mitigate and hire another plumber. That's what C-USA is doing. They're putting their head in the sand.

By your own token, the only thing that will make CUSA whole is to 'hire' three more athletic programs for this coming year. You admit above the only mitigation in your example with the plumber is to 'hire another plumber'. That fits the issue perfectly. Tell us which 3 athletic programs CUSA can hire to make the contract whole and mitigate the loss of the three departing?

The SB3's actions do 'zero' in terms of making CUSA whole *under the contract*.

It isnt that you offer an alternative form of performance as a replacement band aid --- the issue is that, to truly mitigate the damages as specified *under the contract*, the offer has to be three replacement athletic programs.

The contract isnt one for monies from the institutions -- the contract is one for services from the institutions. The monies that have been offered do not match the items that the institutions are pulling by breaching the contract.

The fact that you are mixing and matching 'money damages' (which, by the way, are not allowed under the bylaws) for 'particular services' simply points out the shortcomings of the 'we tried to mitigate' argument.

The details of the contract actually matter.

(02-16-2022 10:21 AM)tanqtonic Wrote:  

(02-16-2022 08:32 AM)SkullyMaroo Wrote:  

(02-16-2022 01:10 AM)tanqtonic Wrote:  Where is there, in any law, a duty to completely re-trade a deal with a breaching party? A duty to mitigate does *not* give the breaching party a free pass to breach as you seem to imply.

If you breach a contract with me, and offer me 99% of the loss, I would grant you that. If you offer me 2% of the loss, sorry charlie -- you are on the hook for the entire thing.

When the express remedy in the agreement is specific performance, there isnt much a breaching party can offer to cover that breach, mind you. I dont see how you magically get there.

If CUSA 'failed to uphold their end of the contract', what exactly is the action of breach by CUSA? Seems to me the SB3 are the sole breaching parties in this case.

I think the SBC3 have an argument that with CUSA not engaging in discussions with them and then releasing a schedule with them on it, CUSA is not making much effort to mitigate their loss. If CUSA was a landlord and USM, ODU, and Marshall were tenants that broke their lease, the landlord (CUSA) could sue for damages/loss, but they’d also have an obligation to mitigate their damages and couldn’t sue to keep the tenant in their houses against their will. Of course, CUSA might argue this is them mitigating their damage so we’ll just have to see what pans out.

The issue with this is that this isnt just a contract over straight payments of money, like a lease. The crux is that being a member in an athletic conference is pretty much on the order of a very specialized services contract.

CUSA has a very solid case that: a) there is zero obligation or duty from their part to negotiate with a breaching party; b) the very idea of breach was discussed in the original agreement, and the 'offers' didnt come close to equating what that remedy is; c) the 'offers' in no way make CUSA whole.

The obligation (yes, obligation) of a breaching party isnt a 'fair' offer -- the breaching party must make the non-breaching party whole.

In terms of mitigation, typically courts dont look at a breaching party at the point of breach to be able to mitigate --

Think of this -- you breach a lease. The day that you announce your intent to breach, you offer the landlord 15k/month as opposed to the 25k/month rent in the lease. Well, hate to tell you the landlord still has not been made whole --- your attempt at pre-mitigation will fall flat on its face. It smacks of nothing more than a re-trade of the deal.

It changes if, the day after you bolt, a third party offers 15k in rent. At that point, the duty to mitigate absolutely has an effect. The max that the landlord can come after you for at that point is the 10k in rent.

You argue that SBC is guilty of tortious interference, which is exceedingly hard to prove, by "sticking its head in the sand" vis a vis the SBC 3, then argue concurrently CUSA has no obligation to mitigate damages and can therefore, "stick its head in the sand" which simply isn't true.

in your above example, my company just broke a lease in NC. While the specifics played out a little different- we made the payment/month but the landlord had an obligation to look for a new tenant. If we could prove that the landlord wasn't looking for a new tenant, we could sue and then walk away from the lease. Or at least thats waht our legal team said. He found a tenant and we walked away. Everyone was happy.

(02-16-2022 10:49 AM)ballantyneapp Wrote:  

(02-16-2022 10:21 AM)tanqtonic Wrote:  

(02-16-2022 08:32 AM)SkullyMaroo Wrote:  

(02-16-2022 01:10 AM)tanqtonic Wrote:  Where is there, in any law, a duty to completely re-trade a deal with a breaching party? A duty to mitigate does *not* give the breaching party a free pass to breach as you seem to imply.

If you breach a contract with me, and offer me 99% of the loss, I would grant you that. If you offer me 2% of the loss, sorry charlie -- you are on the hook for the entire thing.

When the express remedy in the agreement is specific performance, there isnt much a breaching party can offer to cover that breach, mind you. I dont see how you magically get there.

If CUSA 'failed to uphold their end of the contract', what exactly is the action of breach by CUSA? Seems to me the SB3 are the sole breaching parties in this case.

I think the SBC3 have an argument that with CUSA not engaging in discussions with them and then releasing a schedule with them on it, CUSA is not making much effort to mitigate their loss. If CUSA was a landlord and USM, ODU, and Marshall were tenants that broke their lease, the landlord (CUSA) could sue for damages/loss, but they’d also have an obligation to mitigate their damages and couldn’t sue to keep the tenant in their houses against their will. Of course, CUSA might argue this is them mitigating their damage so we’ll just have to see what pans out.

The issue with this is that this isnt just a contract over straight payments of money, like a lease. The crux is that being a member in an athletic conference is pretty much on the order of a very specialized services contract.

CUSA has a very solid case that: a) there is zero obligation or duty from their part to negotiate with a breaching party; b) the very idea of breach was discussed in the original agreement, and the 'offers' didnt come close to equating what that remedy is; c) the 'offers' in no way make CUSA whole.

The obligation (yes, obligation) of a breaching party isnt a 'fair' offer -- the breaching party must make the non-breaching party whole.

In terms of mitigation, typically courts dont look at a breaching party at the point of breach to be able to mitigate --

Think of this -- you breach a lease. The day that you announce your intent to breach, you offer the landlord 15k/month as opposed to the 25k/month rent in the lease. Well, hate to tell you the landlord still has not been made whole --- your attempt at pre-mitigation will fall flat on its face. It smacks of nothing more than a re-trade of the deal.

It changes if, the day after you bolt, a third party offers 15k in rent. At that point, the duty to mitigate absolutely has an effect. The max that the landlord can come after you for at that point is the 10k in rent.

You argue that SBC is guilty of tortious interference, which is exceedingly hard to prove, by "sticking its head in the sand" vis a vis the SBC 3, then argue concurrently CUSA has no obligation to mitigate damages and can therefore, "stick its head in the sand" which simply isn't true.

in your above example, my company just broke a lease in NC. While the specifics played out a little different- we made the payment/month but the landlord had an obligation to look for a new tenant. If we could prove that the landlord wasn't looking for a new tenant, we could sue and then walk away from the lease. Or at least thats waht our legal team said. He found a tenant and we walked away. Everyone was happy.

Then fine. I agree that if you could prove the landlord wasnt looking for a 'new tenant' that would be fulfilling the goal of mitigating damages.

Find three replacement programs of the depth and caliber of the leaving three and you have done your job at mitigation. It achieves the goal and specifics of the contract. Absolutely. Once those three programs are in place, you all are set to go.

(02-16-2022 09:54 AM)Herd6993 Wrote:  

(02-16-2022 09:37 AM)HarborPointe Wrote:  Honestly, all the legal discussion & speculation taking place here on both sides are worth a grand total of jack plus squat, even if a few people are actual lawyers who know of what they speak. Nobody has the whole story and all the details except the people assembling the cases for either side, and it they’re wasting time farting around on message boards in the middle of all this, they need to be fired.

If this thing goes to court, the court’s gonna decide, and it sure as hell won’t be seeking any testimony or advice from here, even if there are posters who are qualified to offer some. In the end, we just have to sit back and see what happens.

Spot on! As I said on the other board, the SBC3 will be playing in the SBC this year, they will pay CUSA more than they want, but not as much as CUSA wants.

However, "if" I am wrong, then two years from now La Tech, UTEP, and FIU won't have to worry about playing Marshall, USM, or ODU as they will get the privilege of playing Sam Houston, Jacksonville State, and New Mexico State.

CUSA "might" win the battle, but SBC3 will win the War!

The thing is that C-USA is eating into whatever revenues they may have incurred with legal fees. Those legal fees likely won't justify the amount of money that they may get.

(02-16-2022 10:49 AM)ballantyneapp Wrote:  

(02-16-2022 10:21 AM)tanqtonic Wrote:  

(02-16-2022 08:32 AM)SkullyMaroo Wrote:  

(02-16-2022 01:10 AM)tanqtonic Wrote:  Where is there, in any law, a duty to completely re-trade a deal with a breaching party? A duty to mitigate does *not* give the breaching party a free pass to breach as you seem to imply.

If you breach a contract with me, and offer me 99% of the loss, I would grant you that. If you offer me 2% of the loss, sorry charlie -- you are on the hook for the entire thing.

When the express remedy in the agreement is specific performance, there isnt much a breaching party can offer to cover that breach, mind you. I dont see how you magically get there.

If CUSA 'failed to uphold their end of the contract', what exactly is the action of breach by CUSA? Seems to me the SB3 are the sole breaching parties in this case.

I think the SBC3 have an argument that with CUSA not engaging in discussions with them and then releasing a schedule with them on it, CUSA is not making much effort to mitigate their loss. If CUSA was a landlord and USM, ODU, and Marshall were tenants that broke their lease, the landlord (CUSA) could sue for damages/loss, but they’d also have an obligation to mitigate their damages and couldn’t sue to keep the tenant in their houses against their will. Of course, CUSA might argue this is them mitigating their damage so we’ll just have to see what pans out.

The issue with this is that this isnt just a contract over straight payments of money, like a lease. The crux is that being a member in an athletic conference is pretty much on the order of a very specialized services contract.

CUSA has a very solid case that: a) there is zero obligation or duty from their part to negotiate with a breaching party; b) the very idea of breach was discussed in the original agreement, and the 'offers' didnt come close to equating what that remedy is; c) the 'offers' in no way make CUSA whole.

The obligation (yes, obligation) of a breaching party isnt a 'fair' offer -- the breaching party must make the non-breaching party whole.

In terms of mitigation, typically courts dont look at a breaching party at the point of breach to be able to mitigate --

Think of this -- you breach a lease. The day that you announce your intent to breach, you offer the landlord 15k/month as opposed to the 25k/month rent in the lease. Well, hate to tell you the landlord still has not been made whole --- your attempt at pre-mitigation will fall flat on its face. It smacks of nothing more than a re-trade of the deal.

It changes if, the day after you bolt, a third party offers 15k in rent. At that point, the duty to mitigate absolutely has an effect. The max that the landlord can come after you for at that point is the 10k in rent.

You argue that SBC is guilty of tortious interference, which is exceedingly hard to prove, by "sticking its head in the sand" vis a vis the SBC 3,

Actually what I have tried to say is that SBC at this point has not done anything that is tortious. If they publish a schedule for 2022 with the SB3 in it, that would be. But presently, they have not. SBC, if they publish that schedule, cannot claim that they have no idea about a pre-existing contract at this point. Especially with the statement from the CUSA and the CUSA schedule being published yesterday.

The SBC, if they make a move that they say or indicate the SB3 are members as off 2022, cannot use a 'we solely rely on the word of the SB3 on this' defense at this point.

Quote: then argue concurrently CUSA has no obligation to mitigate damages and can therefore, "stick its head in the sand" which simply isn't true.

CUSA does have an obligation to try and find 3 athletic programs to fill the void. That is 3 athletic programs of equivalent stature as the breachers. Do you really think that possible on a few months notice?

There is a reason for the notice period. That is, the one the SB3 are breaching.

By the way everyone, thanks for the opportunity for some level headed discussion here.

(02-16-2022 10:58 AM)ericsaid Wrote:  

(02-16-2022 09:54 AM)Herd6993 Wrote:  

(02-16-2022 09:37 AM)HarborPointe Wrote:  Honestly, all the legal discussion & speculation taking place here on both sides are worth a grand total of jack plus squat, even if a few people are actual lawyers who know of what they speak. Nobody has the whole story and all the details except the people assembling the cases for either side, and it they’re wasting time farting around on message boards in the middle of all this, they need to be fired.

If this thing goes to court, the court’s gonna decide, and it sure as hell won’t be seeking any testimony or advice from here, even if there are posters who are qualified to offer some. In the end, we just have to sit back and see what happens.

Spot on! As I said on the other board, the SBC3 will be playing in the SBC this year, they will pay CUSA more than they want, but not as much as CUSA wants.

However, "if" I am wrong, then two years from now La Tech, UTEP, and FIU won't have to worry about playing Marshall, USM, or ODU as they will get the privilege of playing Sam Houston, Jacksonville State, and New Mexico State.

CUSA "might" win the battle, but SBC3 will win the War!

The thing is that C-USA is eating into whatever revenues they may have incurred with legal fees. Those legal fees likely won't justify the amount of money that they may get.

I don't think that matters to them. A former AD once told me that conference expansion was more about emotions than business. Make no mistake, these five schools are jilted lovers...They are embarrassed that the league they left has now taken some of the teams they had coveted to be with. In their eyes all they want to do is make Marshall, USM, and ODU feel pain and if they can involve the SBC even better.

The only problem is, this is basically the last bullet in their chamber.

(02-16-2022 10:46 AM)tanqtonic Wrote:  

(02-16-2022 10:32 AM)Jugnaut Wrote:  

(02-16-2022 10:21 AM)tanqtonic Wrote:  

(02-16-2022 08:32 AM)SkullyMaroo Wrote:  

(02-16-2022 01:10 AM)tanqtonic Wrote:  Where is there, in any law, a duty to completely re-trade a deal with a breaching party? A duty to mitigate does *not* give the breaching party a free pass to breach as you seem to imply.

If you breach a contract with me, and offer me 99% of the loss, I would grant you that. If you offer me 2% of the loss, sorry charlie -- you are on the hook for the entire thing.

When the express remedy in the agreement is specific performance, there isnt much a breaching party can offer to cover that breach, mind you. I dont see how you magically get there.

If CUSA 'failed to uphold their end of the contract', what exactly is the action of breach by CUSA? Seems to me the SB3 are the sole breaching parties in this case.

I think the SBC3 have an argument that with CUSA not engaging in discussions with them and then releasing a schedule with them on it, CUSA is not making much effort to mitigate their loss. If CUSA was a landlord and USM, ODU, and Marshall were tenants that broke their lease, the landlord (CUSA) could sue for damages/loss, but they’d also have an obligation to mitigate their damages and couldn’t sue to keep the tenant in their houses against their will. Of course, CUSA might argue this is them mitigating their damage so we’ll just have to see what pans out.

The issue with this is that this isnt just a contract over straight payments of money, like a lease. The crux is that being a member in an athletic conference is pretty much on the order of a very specialized services contract.

CUSA has a very solid case that: a) there is zero obligation or duty from their part to negotiate with a breaching party; b) the very idea of breach was discussed in the original agreement, and the 'offers' didnt come close to equating what that remedy is; c) the 'offers' in no way make CUSA whole.

The obligation (yes, obligation) of a breaching party isnt a 'fair' offer -- the breaching party must make the non-breaching party whole.

In terms of mitigation, typically courts dont look at a breaching party at the point of breach to be able to mitigate --

Think of this -- you breach a lease. The day that you announce your intent to breach, you offer the landlord 15k/month as opposed to the 25k/month rent in the lease. Well, hate to tell you the landlord still has not been made whole --- your attempt at pre-mitigation will fall flat on its face. It smacks of nothing more than a re-trade of the deal.

It changes if, the day after you bolt, a third party offers 15k in rent. At that point, the duty to mitigate absolutely has an effect. The max that the landlord can come after you for at that point is the 10k in rent.

This of mitigation this way: you have a pipe leak and you contract with a plumber to fix it. The plumber then tells you he's taking another more lucrative job and can't fulfill your contract. Rather than mitigate and hire another plumber, you just let the leak continue and damage your house for months by ignoring the problem. The first plumber isn't liable for all that water damage because you failed to Mitigate and hire another plumber. That's what C-USA is doing. They're putting their head in the sand.

By your own token, the only thing that will make CUSA whole is to 'hire' three more athletic programs for this coming year. You admit above the only mitigation in your example with the plumber is to 'hire another plumber'. That fits the issue perfectly. Tell us which 3 athletic programs CUSA can hire to make the contract whole and mitigate the loss of the three departing?

The SB3's actions do 'zero' in terms of making CUSA whole *under the contract*.

It isnt that you offer an alternative form of performance as a replacement band aid --- the issue is that, to truly mitigate the damages as specified *under the contract*, the offer has to be three replacement athletic programs.

The contract isnt one for monies from the institutions -- the contract is one for services from the institutions. The monies that have been offered do not match the items that the institutions are pulling by breaching the contract.

The fact that you are mixing and matching 'money damages' (which, by the way, are not allowed under the bylaws) for 'particular services' simply points out the shortcomings of the 'we tried to mitigate' argument.

The details of the contract actually matter.

What makes them whole is the ability to schedule home and away games to fill a schedule, 11 teams works just fine. Them leaving provides for additional "TV" services to other members as well. One could argue less teams is beneficial to the remaining members.