Here are some obvious flaws that I see....
These two things are NOT the same:
The first item relates to DOING SOMETHING which would interfere with the GOR, such as reincorporating F$U as a completely different institution, and then claiming it is not bound by the GOR. The stuff in the first clause usually involves taking an affirmative action that interferes with the contract, while "challenging" a contract involves going to court to determine if the document is even enforceable in the first place. You could still have a valid and enforceable document WHILE the court proceeding takes place. This seems like quite a stretch for the ACC to argue that you can never go to court to determine the enforceability of a contract because you promised not to do so. Hint hint, courts don't like that kind of bull****.
Here's another hint that the ACC doesn't even believe its own bull**** that "challenging" the GOR is the same as "taking action that would affect the validity and enforcement of the GOR". It's right here in what they are asking the court to do. In essence, they are saying, "hey, you can't even challenge the GOR because you promised not to challenge the GOR, but we want the court to 'equitably estop' F$U's challenge and/or declare that F$U waived the right to challenge by cashing its checks". So if the ACC needs the court's help to stop F$U from challenging the GOR, then it would seem that F$U has the right to challenge the GOR without it constituting a BREACH of the GOR. I realize that's all lawyer-speak, and if you can follow that, I give ten points to Gryffindor.
Now this is just patently false (and I had to toss it in for a laugh):
Notice anything below? I know, I know, I won't get too Socratic. AS I HAVE CLAIMED FOR HUNDREDS OF PAGES, you don't need a GOR to enter into a TV contract. You don't. Not only did the ACC do its 2010 contract with ESPN, you know WITHOUT A GOR, we actually managed to amend it in 2012 to get MORE MONEY. All without, you know, the magical power of a GOR! Amazing!
Here's a fun one...right after the scary heading of "The 2013 Grant of Rights", the ACC gives away the whole ball game in the first sentence. THIS IS ALL ABOUT ONE SCHOOL EXITING THE CONFERENCE. Which is, of course, already covered and compensated...BY THE ACC CONSTITUTION AND THE EXIT FEES. You don't need a GOR to extract a SECOND penalty for withdrawal when there is already a penalty fee for withdrawal in the Constitution.
More bull****:
So...the TV contract needed "necessary commitments" for "long-term agreements" by "providing assurances" that the "collection of media rights" would "remain unchanged" if a school or schols left the ACC. This is just dizzying in its insanity.
1. So a TV contract that already has "necessary commitments" (such as the 2010 TV deal and 2012 extension mentioned above) needs ADDITIONAL "necessary commitments" in a second duplicative document? Sounds like bull****.
2. The TV contracts (all of them, from 2010 to 2099 or whatever) already have penalties and clauses that allow ESPN to protect itself if a school leaves the conference, essentially allowing ESPN to either pay less (if, say, only one team leaves) or pay nothing at all (if enough schools leave and ESPN doesn't like the replacement schools). So creating a GOR does not give ESPN any "necessary commitments" it did not already possess, it just creates "extra penalties" that can only flow in one direction (i.e., ESPN's favor) when they already have duplicative penalty clauses in the TV contracts that protect ESPN anyhow.
3. Nobody, AND I MEAN NOBODY, has ever explained how ESPN was ever going to brodcast "home games" for an ACC team that has already left the ACC. It is ludicrous to argue that "a collection of media rights" will allow the ACC TV contract to "remain unchanged" if a team leaves the ACC. Setting aside, for the moment, that many people will argue that an ACC school can't survive without joining another conference, I would point out that it is entirely possible to be INDEPENDENT, as evidence by an argument that is soon to come.
4. The kicker to all of this? Notice who is ACTUALLY impacted here? ESPN ESPN ESPN. NOT THE ACC! Wait, who is suing? And who is damaged? The ACC might want to rethink this whole thing.
Now this next bit seems reasonable. But it's kinda bull****. On an aggregate, it might be true. Perhaps ESPN will pay more for Miami AND Wake, but how do we know that Miami couldn't do better on its own? And you know which school is the PERFECT EXAMPLE of that? I'll give you a hint, they are NAMED in the document, and are very Catholic. So, you know, I don't know if this bit is true, but I'd certainly attack it as speculative.
I've said this a million times. Nope. That's not what consideration is. Each contract is supposed to stand on its own. You can't use a LATER contract (and the benefits therein) to backdate and justify "consideration" for an earlier contract. Sorry. I know the non-lawyers might not comprehend this. But you can't pay me tomorrow for a hamburger today.
Again, if you need the ACC to willfully snitch on itself, and admit that it is trying to use a second contract to do what the first contract already does, here it is:
Get ready, cause here it comes...
Remember this old chestnut, from the original 2013 GOR?
Now let's look at the gun to our (collective) head:
And let's remember, ESPN has had a CONTRACTUAL OPTION to only pay us through 2027, and NOT through 2036. So ESPN posesses, and has ALWAYS possessed, the exact Grant of Rights that it "needed" to match up with its contractual obligation to pay the ACC through 2027, AND NOT 2036 FOR WHICH ESPN WAS NEVER OBLIGATED TO PAY THE ACC UNLESS ESPN DECIDED TO FULLY GUARANTEE THE FULL TERM OF THE DEAL. Which it did not do in 2016. Or even later, when the ACC Commissioner decided UNILATERALLY to grant ESPN an extension of time with which to decide if it wanted the ACC all the way to 2036.
To put this in slightly different terms, ESPN said "we want the ACC schools to grant us rights to 2036, even though we have only promised to pay until 2027, and even though we already have a GOR through 2027".
Or, to put this even even more slightly different terms, THERE WAS NO CONSIDERATION PROVIDED WHATSOEVER FOR THE 2016 EXTENSION TO THE GOR, WHICH WAS ALREADY OF A SUFFICIENT LENGTH TO MATCH ESPN'S COMMITMENT. As stated above, you can't use a SEPARATE AND SUBSEQUENT document as "consideration" for a completely different contract.
And you also can't put a gun to someone's head and demand they give you more years than you actually agreed to. If and when ESPN decides it wants to be in the ACC business until 2036, THEN we can determine whether we want to extend the GOR from 2027 to 2036. But not before.
You want some additional proof? Let's pretend that Paragraph 87 is true. BUT WE ALREADY KNOW THAT PARAGRAPH 88 IS NOT TRUE. ESPN was not obligated to operate the ACC Network through 2036. It had an OPTION to "exit the ACC business" earlier than that. ESPN had to affirmatively OPT IN to continuing to do business with the ACC past 2027, which it did NOT do in 2016 or even later, even when the ACC Commissioner gave ESPN "more time".
Whoops!
Remember how the F$U warchant writers kept telling us how the F$U penalties related to Amarius Mims and Flaccid Spear were "unprecedented"? To quote Inigo Montoya, "I do not think that word means what you think it means"...
Yes, the ACC payouts increased, but not nearly as much as the SEC and Big 10 payouts increased. This is one of those cases where "unprecedented" just means "******, when you compare it to what everyone else is getting". It's like thanking your boss for giving you a raise from $10 an hour to $15 an hour, when everyone else is getting $50 an hour.
This is a lie. Texas/Oklahoma sought to leave the Big 12 conference before the expiration of the GOR, and were allowed to do so.
I've been speaking of these issues for months, over hundreds of pages of this thread. A few things are abundantly clear.
1. A Grant of Rights is NOT necessary to enter into a TV contract, no matter how many times ESPN says so.
2. A Grant of Rights should NOT be a secondary, additional penalty for withdrawing from a conference, when there is already such a fee stated in the Constitution.
3. No matter how much the ACC tries to claim necessity, the party that REALLY needed the GOR extension was ESPN, a necessary party that is sorely missing from these legal pleadings.
4. There is a zone in which you can POSSIBLY acknowledge the validity of the ORIGINAL Grant of Rights, while pounding the **** out of the "necessity" and "consideration" of the EXTENSION to the GOR.
5. The very existence of ESPN's "opt-in rights", which were blatantly, unilaterally and unlawfully extended by the ACC Commissioner, should destroy both the "need" for the 2016 extension of the GOR from 2027 to 2036, as well as to make it painfully obvious that ESPN is the party at risk, and NOT the ACC.
That's all for now, if you made it to the end, you can collect your $1M reward, based on a little-known codicil in the 2016 ESPN MMA document. If you can find that clause, just show the language to ESPN and they will pay you. I promise I'm not making that up, just file a lawsuit against ESPN in your home jurisdiction and ESPN will have to produce the document....
