Interesting FSU fan update on ACC GOR

Interesting info.  So FSU did sign the GOR with only verbal promises.  Interesting poll below for a Warchant poll.  You can see the ACC GOR isn't popular with FSU fans....and judging by recent FSU BOT member comments, it isn't popular with them either (but that is their fault). 

I look for a PR blitz claiming an ACC network off the web and $3 Millionish payout as a victory over all this.....it is NOT an ACC victory.  It will only cement the ACC as 2nd tier and FSU in a problematic place.


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"Some of you know I have been trying to get this for quite a while. FSU just provided it to me (after telling me before they only had the signature page). I figure folks may want to know details, so here goes.

Please note, all my comments are intended to be a neutral review of what the contract does/says from a legal standpoint. It's NOT intended to criticize FSU in signing it or in the manner in which it responded to my request. In fact I will say that while the delay seems to have been unnecessary, I am very happy they sent this without me filing suit. I love FSU and had no interest in this being a public battle, which is honestly one of the reasons I kept delaying.

Anyway, here is my summary, which I am writing as I read this. The Agreement itself (not including sig pages) is only 4 pages.

1. The deal was signed 4/19/13 (or at least that was the date on the Agreement itself). It was between what were then the "Current Members" of the ACC, and Pitt, Syracuse, Louisville and Notre Dame as "the Accepted Members."

2. Contracts often have what are called "Whereas" clauses, the purpose of which is to identify a background and reason behind the deal. They are not legally controlling of anything, but can looked to in interpreting the actual contract terms because they identify the purpose of the contract. This has 5 such paragraphs:

+ that the entities wanted to enhance the stability of the conference;

+ that the entities had previously entered into a contract with ESPN (7/8/10) and related extension agreement (5/9/12)(my note, FSU has said it has no ESPN contracts and I will be following up because I don't see how they could agree to the GoR without reviewing the terms of the ESPN contract and extension);

+ that the "Accepted Members" agreed to be part of the ACC knowing the GoR would be in place (my opinion - this also goes the other way in that it is likely argued that those entities, especially ND, would not have joined but for the GoR);

+ that a "condition to the agreement of ESPN to offer additional consideration as part of a further amended to the Amended ESPN Agreement" each school "is required to, and desires to, irrevocably grant to the Conference, and the Conference desires to accept from each of the [schools], those rights granted herein" (my comment - this buttresses my point about FSU having to have been made aware of the deal with ESPN because I simply don't see how it could have given something like this up without being aware of what it was getting in return);

+ that the parties want to memorialize the Agreement (damn lawyers have to say so much useless crap).

3. The consideration (the value exchanged for an agreement, which does NOT have to be of equal value legally and does not have to make any business sense to be enforceable) included the mutual promises and that value "in the ESPN Agreement" (this term includes the initial one and the amendment) the schools each:

+ Grant of Rights. The lawyers use a half page of legal language to explain that each school irrevocably and exclusively grants to the conference ALL rights "necessary for the Conference to perform the contractual obligations of the Conference expressly set forth in the ESPN Agreement, regardless of whether such Member Institution remains a member of the Conference during the entirety of the Term" and agrees to "satisfy and perform all contractual obligations of a Member Institution during the Term that are expressly set forth in the ESPN Agreement." The Rights granted are very broad and include all IP associated with the production or distribution of ALL events of each school that are subject to the ESPN Agreement. They do exclude from this grant of rights any rights held by any school prior to the Agreement (this appears to be for ND's benefit, but also may include some of those relatively useless T3 rights).

+ Copyrights and Licenses. All are assigned consistent with the overall Grant of Rights and basically confirm that ALL IP is transferred to the Conference for the length of the contract.

+ Additional docs. This is just lawyer BS requiring the schools to sign other docs if needed to accomplish this Agreement.

+ Additional Members. This confirms no new member can join the ACC without being subject to this Agreement.

+ Term. The deal is through 6/30/27. That's not new. What is interesting is it includes a sentence "clarifying" that all the schools agree to be bound "even though the term of their membership in the Conference has not yet begun." This suggests that there was some real plate juggling going on and the execution of the GoR was likely a condition of some of those schools joining. Well, for ND joining.

+ Warranties. This is a lot of legalese that basically says all the schools promise they have followed every law/rule/condition to binding each school to the Agreement. That is important language in the analysis of whether the right people at FSU saw this, evaluated this, and/or approved this. Personally I am curious to what degree the OGC conducted a full blown analysis of all this such that the right decisions could be made. Heck, it seems at least someone at the OGC would have had to have vetted the process before anyone could make these warranties and representations.

+ Access. The schools agree to provide ESPN "reasonable access" so ESPN can do what it is permitted to do under the ESPN Agreement. It's pretty innocuous but the practical effect would be that if a school left the conference it would still have to tolerate ESPN being present to produce their games for the ACC's benefit.

+ Miscellaneous. Funny how some of the most important things are found in a section called miscellaneous. This section includes the integration clause I said was likely in there over a year ago. "This Agreement, together with any substantially contemporaneous agreement between the Conference and an affiliated entity of a Member Institution relating to the Rights, sets forth the entire understanding of the parties hereto relating to the grant of rights and related subject matter provided for herein and [] supersedes all prior understandings among or between any of the parties relating to the Grant of Rights and related subject matter provided for herein." I plan to ask FSU for any "substantially contemporaneous agreements" just to confirm whether there was some side deal upon which FSU relied, but I don't expect to find any.

That's it. That's the deal.

I find it interesting that ND's membership is not discussed in any manner identifying that it's only a member for football. I kind of expected it would. It's thus a bit vague, but I think the intent was that ND's participation in the GoR is limited to the extent it is not a football member. I think this is supported by the "previous agreement" language in the GoR section and allows ND to continue ownership of its own TV rights even if it leaves the ACC, leaving only other sports "at risk." Although I don't have the ESPN Agreement (yet), I imagine that's practically limited to basketball because it's unlikely ESPN has any interest in the IP associated with anything from baseball to sand volleyball to field hockey.

For anyone who thought FSU "got something" in exchange for this deal, this Agreement does not bear that out. There are no special rights in there. Every school is treated the same (except ND). The integration clause makes it darn clear that no previous deals related to the GoR survive the execution of the Agreement. FSU would have a very hard time ever claiming it signed this thinking it was getting something more from the Conference.

The Grant of Rights is extreme. In essence, it simply means that any school who leaves gives up all its right to be paid from the Conference, but all it's TV and IP revenue from sports subject to the ESPN Agreement will still go to the Conference.

I am sure we will have some additional discussion. Enjoy.

 

1 AllNoles, 50 minutes ago "