NCAA reorg imminent

[ggait]

Oh Doc Doc Doc.

How many years do you think all of that would take to play out in the real world of real courts? And if the GOR does not have a venue clause, the ACC would remove the case to federal court in a heartbeat. Diversity jurisdiction, right?

I don't think the SEC is going to break up their sweet exclusive $$$ club to take on any newbie with issues and uncertainties like FSU would have. And don't forget that UF has political influence too. Presumably the Gators would use that to keep FSU out of the SEC.

FSU is pretty stuck in the ACC (no clean cheap easy exit available for years to come). And while FSU needs the SEC bad, the SEC doesn't need FSU much or at all. And given recent events, very clear that the B10 is never going to be interested in FSU.

No matter how much they bloviate about it, FSU is holding a 2-7 off suit. A 2-7-7 flop is possible, but not very likely.

[ggait]

for the 1st time in awhile, i agree with you. i don't believe it either.

The GOR is online. No gov law or venue provisions that I could see.

But Doc's scenario is still like a seven cushion bank shot.

[Essexfenwick]

I cannot believe this is true. Failing to include a choice-of-law provision in the ACC’s GOR is a junior associate-level mistake. Practically legal malpractice. Just cannot believe this is the case.

If true, this means: 1) FSU can file a lawsuit in Florida state court to challenge the enforceability of the GOR and exit fee under Florida state law; 2) DeSantis’s Florida legislature can pass a law that would immunize FSU (a public Florida state institution) from any liability from a breach of the GOR and exit fee; and 3) FSU could then simply leave the ACC without paying a dime.

Report: Path exists for Florida State ACC exit due to omission in Grant of Rights

As Florida State keeps clamoring for more money and has now signaled their desire to leave the Atlantic Coast Conference if possible, a question remains if they can get out of the conference Grant of Rights, long deemed close to unbreakable. However, high-profile sports lawyer Tom Mars proposed a radical, scorched-earth option for the Seminoles.

Mars tweeted on Friday that the ACC Grant of Rights does not contain a “choice of law” provision, which would theoretically allow Florida law to apply to a dispute over Florida State. A “choice of law” provision would normally spell out the jurisdiction for legal disputes and which state laws governing a contract among multiple parties in different jurisdictions — they’re a fairly common provision.

Without that governing provision, the Florida state legislature could get involved in a matter before the Florida courts and shield the school from liability.

“Assuming Florida law would apply to a dispute with FSU, the Florida legislature could arguably do what Texas did to Mike Leach and make FSU immune from liability for breach of contract,” Mars said.

https://www.on3.com/college/florida-sta ... of-rights/

One of the reasons that a suit filed by FSU could be transferred out of a Florida state or federal court is a choice of forum provision that specifies where any disputes are adjudicated. I was also curious whether there was any mandatory arbitration clause. Those types of contract terms can be challenged of course. I also thought there at least would be a choice of law provision that would specify which state’s law applied to the contract(s) (no matter where the lawsuit forum actually was). This article suggests that neither forum nor choice of law were specified in the GOR.

Again, I have a hard time believing this report to be true because it would be such a bad, amateurish mistake.

However, if it is true, then I can understand why FSU would have no concern about the GOR (and maybe exit fee). Friendly legislators in Florida can simply immunize FSU from liability and the Seminoles could leave the ACC without paying a dime.

DocBarrister

for the 1st time in awhile, i agree with you. i don't believe it either.

Except they have nowhere to go. The Big Ten or SEC don’t want or need the legal drama. Who wants an institution that doesn’t honor contracts?

[wgdsr]

for the 1st time in awhile, i agree with you. i don't believe it either.

The GOR is online. No gov law or venue provisions that I could see.

But Doc's scenario is still like a seven cushion bank shot.

posted before, here is what bowlsby said:

https://www.cbssports.com/college-footb ... urbulence/

is he and all of his and the acc's high priced attorneys wrong?

[DocBarrister]

for the 1st time in awhile, i agree with you. i don't believe it either.

The GOR is online. No gov law or venue provisions that I could see.

But Doc's scenario is still like a seven cushion bank shot.

First of all, it’s not my scenario. It’s a scenario put forward by Tom Mars, a leading sports litigator.

https://mars-law.com/

No diversity jurisdiction in federal court if FSU sues the University of Miami as a defendant ACC member school. Besides, even if the case is successfully removed to a federal court in Florida, that federal court would still be applying Florida state law.

Wow, so you did not see a choice of forum or choice of law provision? That is such a glaring error that I have to suspect it wasn’t an error … maybe the schools, ACC, and ESPN could not agree on those terms, but that is pretty risky contract drafting. I have drafted settlement agreements for tiny pro bono cases for amounts less than $10,000 that have choice of forum and choice of law terms to resolve disputes.

This may explain why FSU trustees seem so nonchalant about the GOR:

Should Florida State wish to depart the ACC prior to the 2024 football season, they would first need to settle their Grant of Rights issue and pay the $120 million exit fee all before August 15th of this year. Chairman Collins appeared on Warchant TV earlier in the week, stating that the Grant of Rights is “the least of university’s worries,” and a recent report could indicate that Florida State’s actions echo the chairman’s statements.

https://www.si.com/college/fsu/football ... investment

This does not mean FSU is planning to litigate and walk away without paying anything. FSU is more likely to use the threat of gaining immunity under Florida state law … and I suspect they already have assurances from Florida state legislative leaders about passage of the necessary immunity statute … to leverage a favorable settlement with the ACC. For example, one or two years of media rights cash value ($30 or $60 million) for FSU to leave the ACC.

As a final note, FSU has reportedly been seeking private equity investors for their professional … uh, college … athletic program. I doubt FSU would be pursuing such investments if the school could not make a compelling pitch that FSU can get out of the GOR and exit fee at minimal cost.

DocBarrister

[DocBarrister]

for the 1st time in awhile, i agree with you. i don't believe it either.

The GOR is online. No gov law or venue provisions that I could see.

But Doc's scenario is still like a seven cushion bank shot.

posted before, here is what bowlsby said:

https://www.cbssports.com/college-footb ... urbulence/

is he and all of his and the acc's high priced attorneys wrong?

If the GOR does not have a choice-of-forum and choice-of-law provision … then yeah, they might be wrong.

There is precedent in Texas. Former Head Coach Mike Leach tried to sue Texas Tech, a Texas state public educational institution, after he got fired. His suit was ultimately thrown out by the Texas Supreme Court which ruled that Texas Tech enjoyed the sovereign immunity of the state itself and that he could only sue Texas Tech with the permission of the state of Texas, which of course was denied.

https://www.burntorangenation.com/platf ... n-immunity

That may be what FSU is relying on … a similar grant of sovereign immunity by the state of Florida.

DocBarrister

[wgdsr]

for the 1st time in awhile, i agree with you. i don't believe it either.

The GOR is online. No gov law or venue provisions that I could see.

But Doc's scenario is still like a seven cushion bank shot.

posted before, here is what bowlsby said:

https://www.cbssports.com/college-footb ... urbulence/

is he and all of his and the acc's high priced attorneys wrong?

If the GOR does not have a choice-of-forum and choice-of-law provision … then yeah, they might be wrong.

There is precedent in Texas. Former Head Coach Mike Leach tried to sue Texas Tech, a Texas state public educational institution, after he got fired. His suit was ultimately thrown out by the Texas Supreme Court which ruled that Texas Tech enjoyed the sovereign immunity of the state itself and that he could only sue Texas Tech with the permission of the state of Texas, which of course was denied.

https://www.burntorangenation.com/platf ... n-immunity

That may be what FSU is relying on … a similar grant of sovereign immunity by the state of Florida.

DocBarrister

it's very possible you didn't read the article. leach's case wouldn't apply in the same way toward sovereign immunity given what the gor is predicated on.

[DocBarrister]

for the 1st time in awhile, i agree with you. i don't believe it either.

The GOR is online. No gov law or venue provisions that I could see.

But Doc's scenario is still like a seven cushion bank shot.

posted before, here is what bowlsby said:

https://www.cbssports.com/college-footb ... urbulence/

is he and all of his and the acc's high priced attorneys wrong?

If the GOR does not have a choice-of-forum and choice-of-law provision … then yeah, they might be wrong.

There is precedent in Texas. Former Head Coach Mike Leach tried to sue Texas Tech, a Texas state public educational institution, after he got fired. His suit was ultimately thrown out by the Texas Supreme Court which ruled that Texas Tech enjoyed the sovereign immunity of the state itself and that he could only sue Texas Tech with the permission of the state of Texas, which of course was denied.

https://www.burntorangenation.com/platf ... n-immunity

That may be what FSU is relying on … a similar grant of sovereign immunity by the state of Florida.

DocBarrister

it's very possible you didn't read the article. leach's case wouldn't apply in the same way toward sovereign immunity given what the gor is predicated on.

I don’t understand what you are saying. Why wouldn’t FSU and the state of Florida be able to apply sovereign immunity to the GOR? Like Leach’s suit, they are basically breach of contract and tort cases.

DocBarrister

[DocBarrister]

I cannot believe this is true. Failing to include a choice-of-law provision in the ACC’s GOR is a junior associate-level mistake. Practically legal malpractice. Just cannot believe this is the case.

If true, this means: 1) FSU can file a lawsuit in Florida state court to challenge the enforceability of the GOR and exit fee under Florida state law; 2) DeSantis’s Florida legislature can pass a law that would immunize FSU (a public Florida state institution) from any liability from a breach of the GOR and exit fee; and 3) FSU could then simply leave the ACC without paying a dime.

Report: Path exists for Florida State ACC exit due to omission in Grant of Rights

As Florida State keeps clamoring for more money and has now signaled their desire to leave the Atlantic Coast Conference if possible, a question remains if they can get out of the conference Grant of Rights, long deemed close to unbreakable. However, high-profile sports lawyer Tom Mars proposed a radical, scorched-earth option for the Seminoles.

Mars tweeted on Friday that the ACC Grant of Rights does not contain a “choice of law” provision, which would theoretically allow Florida law to apply to a dispute over Florida State. A “choice of law” provision would normally spell out the jurisdiction for legal disputes and which state laws governing a contract among multiple parties in different jurisdictions — they’re a fairly common provision.

Without that governing provision, the Florida state legislature could get involved in a matter before the Florida courts and shield the school from liability.

“Assuming Florida law would apply to a dispute with FSU, the Florida legislature could arguably do what Texas did to Mike Leach and make FSU immune from liability for breach of contract,” Mars said.

https://www.on3.com/college/florida-sta ... of-rights/

One of the reasons that a suit filed by FSU could be transferred out of a Florida state or federal court is a choice of forum provision that specifies where any disputes are adjudicated. I was also curious whether there was any mandatory arbitration clause. Those types of contract terms can be challenged of course. I also thought there at least would be a choice of law provision that would specify which state’s law applied to the contract(s) (no matter where the lawsuit forum actually was). This article suggests that neither forum nor choice of law were specified in the GOR.

Again, I have a hard time believing this report to be true because it would be such a bad, amateurish mistake.

However, if it is true, then I can understand why FSU would have no concern about the GOR (and maybe exit fee). Friendly legislators in Florida can simply immunize FSU from liability and the Seminoles could leave the ACC without paying a dime.

DocBarrister

for the 1st time in awhile, i agree with you. i don't believe it either.

Except they have nowhere to go. The Big Ten or SEC don’t want or need the legal drama. Who wants an institution that doesn’t honor contracts?

You can’t be serious.

You don’t think the B1G and SEC wouldn’t at least assess the potential monetary value of adding FSU to their respective conferences? You think those two super conferences are thinking in moral and ethical terms?

The SEC secretly spirited away Texas and Oklahoma from the Big 12. The B1G secretly spirited away the PAC-12’s two most valuable teams, USC and UCLA, breaking a gentleman’s alliance with the PAC-12 in the process.

In what sports universe are you living?

DocBarrister

[wgdsr]

for the 1st time in awhile, i agree with you. i don't believe it either.

The GOR is online. No gov law or venue provisions that I could see.

But Doc's scenario is still like a seven cushion bank shot.

posted before, here is what bowlsby said:

https://www.cbssports.com/college-footb ... urbulence/

is he and all of his and the acc's high priced attorneys wrong?

If the GOR does not have a choice-of-forum and choice-of-law provision … then yeah, they might be wrong.

There is precedent in Texas. Former Head Coach Mike Leach tried to sue Texas Tech, a Texas state public educational institution, after he got fired. His suit was ultimately thrown out by the Texas Supreme Court which ruled that Texas Tech enjoyed the sovereign immunity of the state itself and that he could only sue Texas Tech with the permission of the state of Texas, which of course was denied.

https://www.burntorangenation.com/platf ... n-immunity

That may be what FSU is relying on … a similar grant of sovereign immunity by the state of Florida.

DocBarrister

it's very possible you didn't read the article. leach's case wouldn't apply in the same way toward sovereign immunity given what the gor is predicated on.

I don’t understand what you are saying. Why wouldn’t FSU and the state of Florida be able to apply sovereign immunity to the GOR? Like Leach’s suit, they are basically breach of contract and tort cases.

DocBarrister

A decade or so ago the Big 12 and ACC were having discussions about playing future nonconference games against one another. Nothing as radical as realignment but enough that the Big 12 gave the ACC access to the league's most significant legal tool -- its grant of rights.

"It was professional courtesy more than anything," recalled Big 12 commissioner Bob Bowlsby.

The grant of rights contracts signed by schools, which literally "grant" the "rights" to broadcast their games to their respective conferences for the term of a league-negotiated media rights deal, have become the foundations of two Power Five conferences' stability.

While every conference holds grant of rights agreements with its member institutions, the ACC modeled its version entirely off the Big 12 document, giving the two conferences an "identical" legal backstop, according to a source who has reviewed both documents.

That has led observer after observer to refer to the contracts with a singular adjective: "Ironclad," Bowlsby said.

So ironclad, in fact, that Big 12 legal minds developed the strategy relying on a landmark 115-year old Supreme Court case that traced its roots back to British Common Law in the 1600s. So ironclad that the Big 12 incorporated itself in Delaware, a state so business-friendly that 65% of Fortune 500 companies file their incorporation papers there.

So ironclad that the verbiage in these contracts might have saved both conferences from near-extinction.

Those ACC schools seemingly had nowhere to go and lacked the financial will to challenge the grant of rights in court given its ironclad nature. Start with that Delaware incorporation.

"It was unusual to build a grant of rights around federal copyright law," Bowlsby explained of the Big 12's contract. "The thing that was important about that: any disputes would be heard in federal court in Delaware, not in a state court."


That a huge advantage for a league that might otherwise have to contend with Texas (Big 12) or Florida State (ACC) battling its conference with homefield advantage in a state court.

The Big 12 legal team had the answer when their 2012 TV deal was finalized. They needed a strategy that found a jet sweep around the 11th Amendment, which includes the concept of state sovereign immunity.

That 115-year old landmark Supreme Court case, Ex parte Young, circumvents state sovereign immunity to allow lawsuits in federal courts for injunctions against state officials if they act against federal law or the U.S. Constitution. It essentially lays the groundwork for a conference to sue a school leaving early for another conference.


The Stanford Law Review called the decision "the cornerstone of modern constitutional litigation."

Explained an attorney who has viewed the Big 12's grant of rights: "Every state has different sovereign immunity laws. Especially in Texas, it's very hard to sue a state institution like a state university. Ex parte Young is a way to try to get around those issues. It would allow you to sue the president of a university if he tried to take Team X to another conference [violating the grant of rights]."


in part, this is what bowlsby believes has been accomplished. why wouldn't it work?

[Farfromgeneva]

(even Macquarie did that when they invested in the Chicago SkyWay bridge PPIP back in the mid 2000s).

Which is a huge financial boondoogle. It was paid off in less than a decade and no, I believe the PIF owns it for the next 60ish years. Anyone with half a brain (well we are talking about FSU trustees) can see this would be an awful deal. But, I guess the old let's cut off our nose to spite our face is playing out right now.

Though if PE gets involved, you can be sure they will start cutting to the bone. The days of 8 layers of administration in the AD department will be long gone.

Was sold in 2016 by Macquarie to a candian pension fund consortium then sold to another Australian infrastructure firm in 2022. Guess Babcock and Brown doesn’t exist anymore.

https://www.enr.com/articles/54808-aust ... ago-skyway

But yeah the FSU crowd and state taxpayers get took by a Sixth Street, Oaktree, Ares, Cerberus, Fortress (KKR only one you have a shot of not getting bent over of all the huge asset managers but that’s no guarantee). Would carve out as much upside with as little risk and ringfence that heavily.

[DocBarrister]

for the 1st time in awhile, i agree with you. i don't believe it either.

The GOR is online. No gov law or venue provisions that I could see.

But Doc's scenario is still like a seven cushion bank shot.

posted before, here is what bowlsby said:

https://www.cbssports.com/college-footb ... urbulence/

is he and all of his and the acc's high priced attorneys wrong?

If the GOR does not have a choice-of-forum and choice-of-law provision … then yeah, they might be wrong.

There is precedent in Texas. Former Head Coach Mike Leach tried to sue Texas Tech, a Texas state public educational institution, after he got fired. His suit was ultimately thrown out by the Texas Supreme Court which ruled that Texas Tech enjoyed the sovereign immunity of the state itself and that he could only sue Texas Tech with the permission of the state of Texas, which of course was denied.

https://www.burntorangenation.com/platf ... n-immunity

That may be what FSU is relying on … a similar grant of sovereign immunity by the state of Florida.

DocBarrister

it's very possible you didn't read the article. leach's case wouldn't apply in the same way toward sovereign immunity given what the gor is predicated on.

I don’t understand what you are saying. Why wouldn’t FSU and the state of Florida be able to apply sovereign immunity to the GOR? Like Leach’s suit, they are basically breach of contract and tort cases.

DocBarrister

A decade or so ago the Big 12 and ACC were having discussions about playing future nonconference games against one another. Nothing as radical as realignment but enough that the Big 12 gave the ACC access to the league's most significant legal tool -- its grant of rights.

"It was professional courtesy more than anything," recalled Big 12 commissioner Bob Bowlsby.

The grant of rights contracts signed by schools, which literally "grant" the "rights" to broadcast their games to their respective conferences for the term of a league-negotiated media rights deal, have become the foundations of two Power Five conferences' stability.

While every conference holds grant of rights agreements with its member institutions, the ACC modeled its version entirely off the Big 12 document, giving the two conferences an "identical" legal backstop, according to a source who has reviewed both documents.

That has led observer after observer to refer to the contracts with a singular adjective: "Ironclad," Bowlsby said.

So ironclad, in fact, that Big 12 legal minds developed the strategy relying on a landmark 115-year old Supreme Court case that traced its roots back to British Common Law in the 1600s. So ironclad that the Big 12 incorporated itself in Delaware, a state so business-friendly that 65% of Fortune 500 companies file their incorporation papers there.

So ironclad that the verbiage in these contracts might have saved both conferences from near-extinction.

Those ACC schools seemingly had nowhere to go and lacked the financial will to challenge the grant of rights in court given its ironclad nature. Start with that Delaware incorporation.

"It was unusual to build a grant of rights around federal copyright law," Bowlsby explained of the Big 12's contract. "The thing that was important about that: any disputes would be heard in federal court in Delaware, not in a state court."


That a huge advantage for a league that might otherwise have to contend with Texas (Big 12) or Florida State (ACC) battling its conference with homefield advantage in a state court.

The Big 12 legal team had the answer when their 2012 TV deal was finalized. They needed a strategy that found a jet sweep around the 11th Amendment, which includes the concept of state sovereign immunity.

That 115-year old landmark Supreme Court case, Ex parte Young, circumvents state sovereign immunity to allow lawsuits in federal courts for injunctions against state officials if they act against federal law or the U.S. Constitution. It essentially lays the groundwork for a conference to sue a school leaving early for another conference.


The Stanford Law Review called the decision "the cornerstone of modern constitutional litigation."

Explained an attorney who has viewed the Big 12's grant of rights: "Every state has different sovereign immunity laws. Especially in Texas, it's very hard to sue a state institution like a state university. Ex parte Young is a way to try to get around those issues. It would allow you to sue the president of a university if he tried to take Team X to another conference [violating the grant of rights]."


in part, this is what bowlsby believes has been accomplished. why wouldn't it work?

You are forgetting that under the scenario described by Tom Mars, FSU would be asserting Florida state sovereign immunity rights. In essence, suing FSU over a federal copyright claim would be like suing the state of Florida itself under federal copyright law.

A 2019 U.S. Supreme Court ruling overturned a 1990 federal law that tried to eliminate state sovereign immunity in the copyright context:

Last week, the Copyright Office released a report on Copyright and State Sovereign Immunity, concluding its year-long study on the topic. Sovereign immunity is a doctrine that makes states and state entities immune from lawsuits under federal law in some cases. Congress sought to eliminate sovereign immunity in the copyright context in a 1990 federal law, which was overturned by a 2019 Supreme Court decision.

https://www.authorsalliance.org/2021/09 ... 20decision.

https://www.supremecourt.gov/opinions/1 ... 7_dc8f.pdf

It’s important to note that the ACC GOR was written before the 2019 U.S. Supreme Court ruling. That means the ACC (and Big 12) may have relied on a 1990 federal law that was later struck down by the U.S. Supreme Court.

It’s complicated stuff, but FSU’s position looks stronger and stronger. I doubt the president and trustees of FSU would have mouthed off like they did if they did not feel confident about breaking the GOR.

In any case, I think all of this still points to an eventual settlement where FSU is allowed to leave the ACC for a price that is much lower than what the current GOR and exit fee require.

Should note that this scenario would not work for, say, the University of Miami, a private school. FSU is a state institution, and that makes a huge difference. Importantly, this approach may also work for Clemson, which in its usual cowardly manner is allowing FSU to lead the way and take the brunt of fire from the ACC member schools.

I’m glad you raised this important point, wgdsr. Thanks.

DocBarrister

[ggait]

Doc -- Your analysis seems questionable and incomplete. The overturn of the CRCA in Allen v. Cooper does not say what you think it says.

Have your memo on my desk by 9 AM Monday morning.

Although the Eleventh Amendment generally provides states with immunity from copyright infringement damages claims, other remedies may be possible. Injunctive relief is still available under what is known as the Ex Parte Young doctrine.

In Ex Parte Young, the Supreme Court held that when a state actor seeks to enforce an act that violates federal constitutional guarantees, the Eleventh Amendment does not bar a suit seeking an injunction for prospective relief from a continuing violation. State universities, for example, have been enjoined from ongoing copyright infringement violations, and face potential liability for attorney’s fees in such actions.

https://www.iplawwatch.com/2020/03/25/u ... -v-cooper/

Sovereign immunity, however, also has limits.

First, copyright owners continue to have the ability to seek injunctive relief against states and state actors for copyright infringement, which can still result in expensive litigation. States actors DO NOT enjoy sovereign immunity from injunctions due to the seminal case of Ex Parte Young, 209 U.S. 123 (1908).

https://casetext.com/analysis/copyright ... v=false&q=

In your memo, please discuss the 2023 SCOTUS decision in Reed v. Goertz (BKav opinion).

"The Court also rejected Texas’s claim of sovereign immunity, reaffirming Ex parte Young, 209 U. S. 123, 159–161 (1908),which allows suits like Reed’s for declaratory or injunctive relief against state officers in their official capacities."

Also, please have your memo discuss the litigation with UMD when they bolted for the B10. UMD claimed sovereign immunity and lost, in a case decided under NC law. Mars' tweet is in response a claim that the UMD case would stymie FSU. Clever retort. But he doesn't discuss (and almost certainly completely unaware) that the foundation that the B12 and ACC GORs are built on is Ex Parte Young. Not the CRCA.

If you are relying on a "seminal" SCOTUS case, you don't need a governing law provision. Since that SCOTUS case will apply everywhere and will supercede any/all state laws. [Drops mic]

So that wasn't an omission or mistake. More likely, awesome drafting/lawyering. In an agreement with state universities in like 7 different states, it would be unworkable to have, for example, a NC gov law/venue clause. The schools in GA, FL, SC, VA, MD, PA would never agree to that. And unnecessary, since the deal was built on federal law only.

GORs based on copyright law and Ex Parte Young so far are undefeated. Don't see that streak ending. Since FSU would appear to have no sov immunity protection from being enjoined from showing its games for the balance of the GOR. SEC ain't gonna dig FSU having zero games to sell for 13 years.

Hope you and Tom Mars have a good weekend (in the law library),

ggait, esq.

[DocBarrister]

Doc -- Your analysis seems questionable and incomplete. The overturn of the CRCA in Allen v. Cooper does not say what you think it says.

Have your memo on my desk by 9 AM Monday morning.

Although the Eleventh Amendment generally provides states with immunity from copyright infringement damages claims, other remedies may be possible. Injunctive relief is still available under what is known as the Ex Parte Young doctrine.

In Ex Parte Young, the Supreme Court held that when a state actor seeks to enforce an act that violates federal constitutional guarantees, the Eleventh Amendment does not bar a suit seeking an injunction for prospective relief from a continuing violation. State universities, for example, have been enjoined from ongoing copyright infringement violations, and face potential liability for attorney’s fees in such actions.

https://www.iplawwatch.com/2020/03/25/u ... -v-cooper/

Sovereign immunity, however, also has limits.

First, copyright owners continue to have the ability to seek injunctive relief against states and state actors for copyright infringement, which can still result in expensive litigation. States actors DO NOT enjoy sovereign immunity from injunctions due to the seminal case of Ex Parte Young, 209 U.S. 123 (1908).

https://casetext.com/analysis/copyright ... v=false&q=

In your memo, please discuss the 2023 SCOTUS decision in Reed v. Goertz (BKav opinion).

"The Court also rejected Texas’s claim of sovereign immunity, reaffirming Ex parte Young, 209 U. S. 123, 159–161 (1908),which allows suits like Reed’s for declaratory or injunctive relief against state officers in their official capacities."

Also, please have your memo discuss the litigation with UMD when they bolted for the B10. UMD claimed sovereign immunity and lost, in a case decided under NC law. Mars' tweet is in response a claim that the UMD case would stymie FSU. Clever retort. But he doesn't discuss (and almost certainly completely unaware) that the foundation that the B12 and ACC GORs are built on is Ex Parte Young. Not the CRCA.

If you are relying on a "seminal" SCOTUS case, you don't need a governing law provision. Since that SCOTUS case will apply everywhere and will supercede any/all state laws. [Drops mic]

So that wasn't an omission or mistake. More likely, awesome drafting/lawyering. In an agreement with state universities in like 7 different states, it would be unworkable to have, for example, a NC gov law/venue clause. The schools in GA, FL, SC, VA, MD, PA would never agree to that. And unnecessary, since the deal was built on federal law only.

GORs based on copyright law and Ex Parte Young so far are undefeated. Don't see that streak ending. Since FSU would appear to have no sov immunity protection from being enjoined from showing its games for the balance of the GOR. SEC ain't gonna dig FSU having zero games to sell for 13 years.

Hope you and Tom Mars have a good weekend (in the law library),

ggait, esq.

First of all, Georgia State University ultimately prevailed in that copyright case. Second, GSU did not employ a sovereign immunity defense, but a fair use defense. It’s not on point.

https://en.m.wikipedia.org/wiki/Cambrid ... _v._Patton

Third, the Allen 2019 U.S. Supreme Court decision didn’t merely bar certain types of relief for copyright claims against states or state entities who assert a defense of sovereign immunity, but the entirety of the copyright claims. No copyright claim, no injunctive relief for such claims.

https://www.supremecourt.gov/opinions/1 ... 7_dc8f.pdf

Fourth, the Reed case is not on point. State officials are NOT the state, even when acting in their official capacities. State officials, even when acting in their official capacity, cannot assert sovereign immunity. State officials are enjoined by courts frequently. There are probably tens of thousands of examples of that.

https://law.justia.com/constitution/us/ ... cials.html

Fifth, if Ex Parte Young controlled copyright cases against states and state entities asserting sovereign immunity defenses, there would have been no reason for Congress to pass the CRCA and no reason for the Supreme Court to decide Allen. Allen controls, and Allen states that a copyright claim cannot be brought at all against a state or state entity invoking sovereign immunity.

Sixth, the Maryland case is not on point because: 1) the University of Maryland never asserted a sovereign immunity defense; 2) the dispute centered on the exit fee, not a GOR (because there was no GOR in place); and 3) the case was settled, with Maryland reducing the exit fee by about $20 million (which is not a bad result).

https://www.usatoday.com/story/sports/c ... /13781545/

Finally, GORs of the type used by the ACC are not “undefeated.” They have never been tested in a court of law. If you can find a case where a GOR like the ACC’s has been fully adjudicated in a court of law, please post a link.

I am demoting you to first-year law student. You need to start over.

DocBarrister

[ggait]

Eye roll.

Let’s go slowly so you can keep up.

A couple hours ago, you were bloviating about how the b12 and acc lawyers forked up by forgetting to put in a gov law section.

You still believe that was just a oversight/mistake?

Or do you think the lawyers had a reason for doing that?

If they had a reason, please tell us what that reason probably was?

[ggait]

Second question for ya Doc.

You say this:

Third, the Allen 2019 U.S. Supreme Court decision didn’t merely bar certain types of relief for copyright claims against states or state entities who assert a defense of sovereign immunity, but the entirety of the copyright claims. No copyright claim, no injunctive relief for such claims.

Yet after Allen, the IP guys at K&L Gates say this:

Although the Eleventh Amendment generally provides states with immunity from copyright infringement damages claims, other remedies may be possible. Injunctive relief is still available under what is known as the Ex Parte Young doctrine.

In Ex Parte Young, the Supreme Court held that when a state actor seeks to enforce an act that violates federal constitutional guarantees, the Eleventh Amendment does not bar a suit seeking an injunction for prospective relief from a continuing violation.

Please explain why/how they would say this if your assertion is correct? Are you just a much smarter IP lawyer than they are?

[ggait]

Third question.

First of all, Georgia State University ultimately prevailed in that copyright case. Second, GSU did not employ a sovereign immunity defense, but a fair use defense. It’s not on point.

True that the Cambridge Univ Press/GSU case was ultimately disposed of on fair use grounds. Which is good for them, because they obviously did not have a sov immunity defense in that case. They won because they were found not to infringe. Not that they were immune from suit.

Do you think FSU selling/broadcasting 13 years of football games they signed over to the ACC would be fair use?

If no, please explain why the ACC would not be able to pursue an injunction?

Ex parte Young was re-affirmed by SCOTUS in 2023. Why/how do you think it is now no longer good law?

[DocBarrister]

Second question for ya Doc.

You say this:

Third, the Allen 2019 U.S. Supreme Court decision didn’t merely bar certain types of relief for copyright claims against states or state entities who assert a defense of sovereign immunity, but the entirety of the copyright claims. No copyright claim, no injunctive relief for such claims.

Yet after Allen, the IP guys at K&L Gates say this:

Although the Eleventh Amendment generally provides states with immunity from copyright infringement damages claims, other remedies may be possible. Injunctive relief is still available under what is known as the Ex Parte Young doctrine.

In Ex Parte Young, the Supreme Court held that when a state actor seeks to enforce an act that violates federal constitutional guarantees, the Eleventh Amendment does not bar a suit seeking an injunction for prospective relief from a continuing violation.

Please explain why/how they would say this if your assertion is correct? Are you just a much smarter IP lawyer than they are?

I’m definitely smarter than you.

Ex Parte Young helped establish the right to file suits against individual state officials acting in their official capacity. It’s kind of like that Reed case. The K&L writers use the term “state actor” in place of “state official.”

Ex parte Young, 209 U.S. 123 (1908)

PRIMARY HOLDING
If government officials attempt to enforce an unconstitutional law, sovereign immunity does not prevent people whom the law harms from suing those officials in their individual capacity for injunctive relief. This is because they are not acting on behalf of the state in this situation.

https://supreme.justia.com/cases/federal/us/209/123/

I’m being serious here … you really need to learn and understand the difference between suing a state or state entity asserting sovereign immunity and suing individual state officials acting in their official capacity.

You can sue to enjoin a state official in their individual capacity from committing copyright infringement. That state official cannot assert sovereign immunity. (Ex Parte Young)

You cannot sue a state or state entity asserting sovereign immunity on any copyright claim. A federal court cannot adjudicate such a claim. (Allen v. Cooper)

Do you understand that?

The K&L Gates blog writers are correct.

I am correct.

You are the only one who doesn’t quite grasp what is being discussed.

DocBarrister

[ggait]

Exactly.

So the acc would move against the officers of fsu in charge of selling games pledged to the acc. The president, athletic director, trustees, etc.

Who were the defendants in the gsu case? The university officials, right? The people who operated the university library and copyright policies that Cambridge university press claimed were violating their copyrights.

[DocBarrister]

Eye roll.

Let’s go slowly so you can keep up.

A couple hours ago, you were bloviating about how the b12 and acc lawyers forked up by forgetting to put in a gov law section.

You still believe that was just a oversight/mistake?

Or do you think the lawyers had a reason for doing that?

If they had a reason, please tell us what that reason probably was?

I already discussed this above. If it was truly a mistake, it was a colossal mistake.

As I stated above in an earlier post, this was such a colossal mistake that I suspect it was not a mistake at all. It may simply have been the case that the disparate parties could not agree on those terms and decided to exclude them from the contract.

If that is the case (and I don’t know if it was), then I would still consider that to be a very imprudent decision.

DocBarrister