Grant of Rights from a Contractual, Copyright, and Intellectual Property Perspective - FSU vs ACC
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- เผยแพร่เมื่อ 21 เม.ย. 2024
- The Big Mountain takes a closer look at the Grant of Rights thought the lens of Contract Law, Copyright Law, and Intellectual Property Law. David McKenzie has done many articles on X regarding these topics. The fellas discuss each one and also look closer at Estopple and Waiver.
@McKenzieLaw
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Appreciate your channel and delving into the GOR and points of view from both sides. This ACC since birth guy from NC appreciates it. Thank you.
Thanks for watching!
I would push back on assertion of “the law is fair and unbiased” and intended to be easy to interpret. If it were, we wouldn’t need lawyers.
We don’t need to blow up or challenge the Grant of Rights. Just need to see and read the plain and simple English stated in the ESPN media agreement in regard to media rights. As stated by Clemson, and brought up today by Rush quoting the ACC lawyer.
There is a FOIA that shows University of Texas ESPN agreement for the SEC allegedly (Flugaur source) that uses the exact wording that Clemson is claiming.
ACC is just stalling and FSU messed up on the amended filing.
Judge basically gave FSU a do over
Your comment is totally irrelevant and immaterial as is Flugauer's. This is first day of Contract Law stuff. FSU was NOT a party to any contract with ESPN. Therefore, it has no rights or obligations with regard to a contract to which it is not a party. End of story.
@@terryfox9344 tell that to Clemson. That is their entire case
@@terryfox9344no "obligations", you say?
The gor literally says "Member Institutions...grant to Conf all rights necessary...to perform contractual **obligations** expressly...in the ESPN Agreement"
So I'm not a lawyer but it appears to me the GOR contradicts itself with regards to it's term. First, there's this:
"6. Acknowledgements, Representations, Warranties, and Covenants. Each of the
Member Institutions acknowledges that the grant of Rights during the entire Term is irrevocable and effective until the end of the Term regardless of whether the Member Institution withdraws from the Conference during the Term or otherwise ceases to participate as a member of the Conference in accordance with the Conference's Constitution and Bylaws. "
As argued by the ACC"S side. Then there's this:
"1. Grant of Rights. Each of the Member Institutions hereby (a) irrevocably and
exclusively grants to the Conference during the Term (as defined below) all rights (the "Rights")
necessary for the Conference to perform the contractual obligations of the Conference expressly
set forth in the ESPN Agreement"
The ESPN agreement apparently says that ESPN has the rights to only current conference members games.
This is pointed out by the FSU side.
So my question for some of you lawyers reading this is that I'm sure there must be some criteria for resolving questions about a document that contradicts itself in this way. What are they?
Second question-
Hasn't Judge Cooper signaled pretty strongly that he feels equitable estoppel is not a factor if the contract violates Florida Statute? He seemed receptive to the argument that statute was violated because the FSU BOR did not approve/sign the contract. Also, how will the ACC"S misrepresentation of the circumstances (if proved) factor into this aspect of the case?
For those who don't know, FSU is alleging they have an email sent by the ACC at 4:30 in the afternoon along with the 2016 GOR amendment. The email supposedly states that the executed document had to be returned by the next morning or ESPN would walk away from negotiations and there would be no ACC network created. The FSU president executed the GOR believing this was an emergency situation and he had to act.
The former president of ESPN who negotiated the deal with the ACC is now quoted as saying there was no such ultimatum.
Hopefully someone knowledgeable will shed some light on the rules used to resolve these types of conflicts- Thank you!
First, you have your "first" and "then" backwards. Paragraph 1 (actual "first") comes before paragraph 6 (actual "then"). I'll give the benefit of the doubt that it was an innocuous order switch.
Second, it's not contradictory. The gor is only the rights required by espn. And that's effective through the end of the term. Ergo only the rights required by espn are bound by the full term. If there are no rights required by espn, then the term is no longer relevant.
There are plenty of contracts that have provisions/exceptions that allow the contract to end prior to the stated term being completed. This is no different.
Thirdly, you can't enact estoppel on a contract if that contract itself violates the law. Violating the law invalidates the contract, which makes estoppel moot. That's what you likely heard Cooper say. If it's proven that the acc defrauded its members, any statute of limitation/estoppel claims by the acc either revert back to the date the fraud was discovered (as opposed to the original 2013-2016 gor signings) or are invalidated entirely.
Lastly are you perhaps conflating two separate issues (2016 gor ultimatum vs 2021 acc email extending the espn option deadline)? In FSU's complaint, they claim there was a 2016 ultimatum, but I don't see any direct evidence to support that position. Where have you seen this email?
Also in FSU's complaint, they state current acc commissioner emailed FSU the day before he signed the extension with espn in August 2021. FSU provided an excerpt of this email in the complaint.
i am fine conceding that the gor is an IP contract. i'm sure FSU will argue, and they probably should (to keep all avenues open). but i don't know that it'll matter much in the end
the gor being an IP contract DOES NOT change the language within the gor, that a member's rights are only tied to the gor in order to perform the contractual obligations of the espn agreement. and you two kind of hinted at this when you Steve questioned whether the IP only includes past rights or future rights as well
the SAME thing can be said in regards to estoppel. FSU doesn't need the gor to be "invalidated". in fact, FSU's attorney, Rush, today, requested that Judge Cooper to validate FSU's interpretation of the contract language since the acc agreed with FSU's interpretation - multiple times - during the previous hearing when acc attorney, Cooney, said espn would not retain any right to broadcast FSU games once FSU left the acc. IN OTHER WORDS, the gor remain valid and enforceable per the plain language within the contract. if the language was poorly drafted, that's on the acc, not FSU
i'm glad you two, relatively impartial observers, noticed how "condescending" he is and how "smarter than thou" he acts
This is all moot . The GOR states the rights granted are those needed to cover the ESPN contract. If the ESPN is not renewed OR if the contract only covers games.of conference members then the rest of this seems to not matter.
As to the question about future games with the GOR I would use the example to a songwriter signing a publishing deal. The publishing contract might run through 2036 and the writer gets 25% and the company gets 75%. Several of his songs become #1hits. He wants better terms, say a 50/50 split with the publisher now that he’s a successful songwriter. But new songs he writes into 2036 are locked in. He can’t just say it’s a bad deal, tear the contract up and sign with a new publisher. He can try and renegotiate terms or buy out his contract. That’s the case with FSU and the ACC. The ACC created performance based incentives but FSU said that wasn’t enough. So now they either roll the dice on a lawsuit that case law seems to be strongly in the side of the ACC, or they negotiate a buyout that both parties can agree to.
Good analogy.
Some on the FSU side would say any “out” prior to 2036, is a win. It’s 2036, or something less with a penalty. It’s all about how much less in terms of years and $!
Aka - Mediation/settlement.
except the gor plainly states it only grants a member's rights to the acc through 2036 if those rights are subsequently used to perform the contractual obligations of the espn agreement
so your example is certainly not the same as the acc gor and espn agreement
maybe more like:
songwriter (school) signs deal with publisher (acc) to have all songs necessary to fulfil the contractual obligations of the publisher with a specific movie studio (espn) through 2036. but then the movie studio's contract with publisher says the studio only has the right to use the songwriter's songs if that songwriter is still employed by the publisher
because that's exactly what the gor and espn agreement say. and before anyone argues differently, the acc attorney, Cooney, repeatedly made the claim that as soon as a school (songwriter) leaves the acc (publisher) their future rights are no longer held by espn (movie studio). so even the acc agrees with FSU/Clem's interpretation of the espn agreement language. all that's left is the gor language, which plainly states the gor only retains the rights necessary to fulfil the obligations of the espn agreement (but the acc attorney just said there are no longer any espn agreement obligations once a school withdraws... hmmm...)
so, again, the gor is NOT like your example at all
===========
honestly, it goes to show how stupid and convoluted the gor is. gor's were NEVER previously necessary to sign tv deals. heck, even the acc signed their tv deal with espn in 2010 and then again in 2012, prior to the gor being created in 2013. it only strengthens the argument that a gor's only purpose is to inflict punitive damages upon a conference's members in order to prevent them from leaving
GOR is not enforceable once a team leaves the ACC. The ACC can kick out any member. They do not get to keep that team's media rights once they kick them out.
This is your opinion - it is not a fact. It may become fact, but be careful to state opinions as facts.
@@user-kj4en6px1x You cannot keep a team's media rights once you kick them out. Sorry, not enforceable.
@@user-kj4en6px1x If a contract term is unconscionable then it is unenforceable. And saying out loud that a conference can forcibly remove a member without that members consent and then keep that schools media rights is without a doubt unconscionable.
@@user-kj4en6px1x Wothout the contract explicitly differentiating that post-exit media rights in scenario #1 (ACC votes out a member) would be treated differently then scenario #2 (team pays exit fee and wants to leave) then the courts would have to infer that the ACC would treat them as being the same. You can’t just create caveats that aren’t explicitly laid out in the GOR.
So ACC is backed into a corner……either they argue that they have absolute “post exit” rights or they have no rights after departure.
If they claim it’s absolute, then you proceed to unconscionable “test”
i've tried to remain impartial here, but the degree to which the ACC exploits its upper echelon college football programs is disgusting.
Couldn’t this be said about every conference? (Honest question, no shade)
Or is the “degree” the issue here?
@@TheBigMountainPodcastyes and no. For example Boise State exploits the MWC and gets distinct advantages that the other teams in the conference don’t get, albeit not as much as it was before and definitely not like that which they did and had in the WAC. This is something that I have tried to educate every Mountain Worst team about. The Bigoted Idiotically Geographically-Challenged 10 (as the BiG10 has always been an eastern conference and never ever midwestern conference, never) but the schools of Ohio State, Penn State and Michigan actually exploit the BiG10 instead of the other way around. Conversely, the Big12 has exploited Texas and Oklahoma for two decades plus and the other schools conspiring against those two especially Texas, and will truly feel the loss this fall and definitely next year. But some conferences exploit top schools while some colleges exploit the top of their respective conferences. It just depends.
It's disgusting that you are raging on the ACC when you have the same thing goin on in the B1G and SEC too.
@@TheBigMountainPodcast the conference has a fiduciary duty to make business decisions which brings added value to the organization. florida state, clemson, and (you could argue) a couple of other ACC schools have done this. the conference, instead, caters to those who have not raised the value of their programs. @dltjr1959 i see the SEC AND the BIG X perpetually making life easier for its workhorses and not trying to "interfere" with the leagues ability to compete at the highest level with other programs belonging to other conferences. the ACC touts water polo, lacrosse, and field hockey.
@@jfigfsu Wake Forest won a NC in golf and played in the baseball World Series, NCSU put both basketball teams in the final 4, in all I believe the conference won 7 NC in 2023, most if not all involved schools other than FSU and Clemson. You may not value the conference overall and just live and breathe football but that’s not the case for everyone.
On page 3 of the 2013 Grant of Rights.
"6. Acknowledgements, Representations, Warranties, and Covenants. Each of the
Member Institutions acknowledges that the grant of Rights during the entire Term is irrevocable and effective until the end of the Term regardless of whether the Member Institution withdraws from the Conference during the Term or otherwise ceases to participate as a member of the Conference in accordance with the Conference's Constitution and Bylaws. "
Yup.
And it's only irrevocable during the entire term if paragraph 1 (posted below) remains true during the entire term. However, the acc admits there are no longer any contractual obligations in the espn agreement once a member school withdraws.
Derp. Who drafted that poorly worded contact and then signed it? The acc?! Whoopsies! 😂
"1. Grant of Rights
Member Institutions...grant to Conf all rights necessary...to perform contractual obligations expressly...in the ESPN Agreement"
@@trick7884 That’s how you read it but others read it differently. If it was that simple these breakaways would have happened years ago.
@@elliottcrews4997
No. That's literally what it says. There's no ambiguity about it.
If the acc wanted it to be for "any and all" media rights deals through 2036 the gor would say that. But it doesn't. It's only for the espn deal.
And the acc has already stated in court - repeatedly - that FSU no longer has any obligations to the espn agreement once it leaves the acc.
The acc drafted a poor contract. Then "they signed it." Then in court they admitted FSU's interpretation of the espn agreement was correct.
The acc simply doesn't have a strong defense of the plain language of the contracts. They're in trouble.
@@trick7884 I admire your positivity but have to ask what law school did you graduate from and what area of law do you practice? If this were an FSU slam dunk why are the only ones saying so the FSU fan boys?
You guys are the best!
Thank you sir!
When does the Clemson lawsuit start? Everything that the ACC says in court here will carry over into that case as well.
Pac2 now nonautonomous league, reports surface discussions underway for merger with MWC for 25-26 season.
Discussions/negotiations with the MWC are not surprising. We will need to see where they lead.
If the Grant of Rights are not enforceable, then what is the benefit for B1G or SEC future expansion if they cannot exploit the rights of new expansion members for new or extended media deals?
Great comment.
This is a huge question and could totally blow up the entire media rights environment if a GoR is deems unenforceable.
There is a lot of talk about the short term gain, but the long term loss could be huge.
But no one knows what that would actually look like.
@jafuscavil6300 @@TheBigMountainPodcastlong term loss?
Conferences entered into tv deals with networks for DECADES without ever having a gor. Gor's have never been necessary in order for a tv deal to get done (even the acc signed its 2012 tv deal a year prior to the 2013 gor existing)
If/When FSU has the court(s) rule in its favor, it wouldn't inherently invalidate the gor:
• FSU argues the gor allows it to withdraw with its rights, and if the judge agrees, the gor remains "valid" and "enforceable". Just because the contract was likely drafted with poor language and allowed FSU a loophole to escape through, doesn't mean that language couldn't be tightened up later to remove it on the future
• If the acc/gor was required to explicitly state FSU was waiving sovereign immunity, that, again, would be a loophole that can be addressed in future gor versions
• FSU exiting on a legal technicality wouldn't "invalidate" the gor. It would just mean "the acc signed the contract!" and that it was a bad one 😂
• However, if the gor is deemed an unenforceable penalty, and it very well may be, that would obviously blow up any/all gor, and rightly so. But it wouldn't blow up all tv deals. Nor would it blow up all contracts ever.
@@trick7884 You're right! However, the value of those deals was much less than what they are now. Ending the practice of extremely high dollar, long term media rights deals. The shareholders of the networks won't allow it unless there was a contractual agreement that could hold.
The Big 12 is NOT going to take any teams, unless our TV sponsor’s pony up the money 💰 for their addition.
What does the big 12 have to do with this? Haha
“Without limiting the forgoing effective (date) and continuing for so long as the institution is a member of the ACC, the institution agrees and confirms that the ACC shall control and have exclusive right to exercise or license all media rights owned or controlled by the institution related to video/ audio-visual coverage for any game or practice for any of the institutions’s athletic teams that participate in any sport that is a conference sponsored sport including without limitation all media rights for any such game or practice of the institution occurring on the institution’s campus or any stadium or arena that is the traditional home stadium or arena for one of the institution’s athletic teams.”
Wouldn’t it be crazy if that is just about the exact wording we need to end this case? That would be just dandy.
should probably note that that's NOT the language in the gor, and that - i believe - it's from texas/oklahoma's contracts that they signed when they entered the sec
obviously, given that the sec is an espn conference, it's possible espn requests/uses similar language with each of its conferences (including the acc). but we just don't know the answer to that yet
Well stated Trick.