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Boise State Has Filed Suit Against the MWC

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4 minutes ago, mugtang said:

Well....one of us has played a game in the Rose Bowl.  The other hasn't so.....

Boise State’s lone appearance at the Rose Bowl was an ugly loss to UCLA.

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Just now, UofNPackFan said:

I still remember how BSUs best team lost to Nevadas best team.  Ahh... nothing like beating the nation's #3 team. 

Congratulations. Just imagine what UNR could have done with another $163k that year. Prolly a natty trophy.

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1 minute ago, Chile_Ute said:

...and not the first time they have flexed this issue.  Pattern of behavior.

Indeed. No argument here.

...Except for whether or not this is somehow unique to BSU or if everyone would do the same thing in the same situation.

BSU has acted inherently selfishly and in their own self interests every step of the way. I'm willing to stipulate this as a fact.

What I'd dispute is some other school claiming that they would act differently in the same situations. Such as...as if they'd break apart the original WAC at an airport meeting to create the MWC to begin with...or if they'd abandon the intention of turning the MWC into a BCS conference if the Pac-10 came knocking for instance.

I was around back in the day when Utah (my dad's alma matter btw) wanted to help turn the MWC into a power conference with an auto bid. I also noted just how quickly Utah bolted to the newly created Pac-12 when the opportunity presented itself...and did not blame you guys at all. It was the right thing to do for your school.

But just don't try and claim some sort of moral high ground on your school doing what's best for it personally.

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4 minutes ago, nocoolnamejim said:

Only if you don't think people should understand the motives and interests that drive decisions. 

I don't mean "understand" from the standpoint of "like and feel good about" but more "understand" from the standpoint of seeing what is driving the behavior of each side.

Expecting the fans of other schools to ENJOY being strongarmed is pretty illogical.

It depends on what is being understood.  I can only understand one possible scenario for Boise to go this route.

The university president was faced with the choice of fighting a bunch of boosters who demanded a fight with the MWC to get a different deal and more money, or fighting a group of conference presidents.  The former hold the purse strings to a stadium upgrade and myriad other athletic department needs.  I think she took the bad road, but possibly the only viable road. 

I don't see Boise getting any additional funds out of this, but it may rescue the funding already in place.

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13 minutes ago, Ibanez said:

The WAC isn't gonna be around much longer. Boise State would end up having to just find another conference. Also, what happens if two other MWC teams go to the AAC? Does Hawaii go Indy? Does NMSU get a MWC invite? If Boise State went to the WAC then that would be a death sentence for every other sport. I would hope we would be smart enough to swallow our pride If the WAC is the only option.

Good points, but I think the WAC is much more stable than what it was.   Who is going to invite their schools to a new conference?  Probably no one.

And they are in a relatively good geographic footprint now.  WEST / TEXAS

 

1---UVU-----biggest University in the State of Utah, and getting better as a program, very good facilities

2---Grand Canyon---tons of money and fan support...some academic baggage, great facilities

3---Cal Baptist---don't know much about them, but they have a brand new arena and money

4---NMSU----have always been good at basketball; good fan support

5---Seattle U---need a new venue, in a good city (might move to the new Key Arena remodel)

6---UTRG---not great, quite frankly

7---DIXIE---fastest growing area in Utah

8---Tarleton State---I know nothing about them

 

9---Chicago State---garbage.  Need to be kicked out

 

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1 minute ago, BSUTOP25 said:

Boise State’s lone appearance at the Rose Bowl was an ugly loss to UCLA.

I didn't realize BSU had played UCLA before so I retract my statement.

thelawlorfaithful, on 31 Dec 2012 - 04:01 AM, said:One of the rules I live by: never underestimate a man in a dandy looking sweater

 

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16 minutes ago, Bob said:

I'll make a bet that WCC is a one bid league. 

OK, how about this.

Loser of the bet has to wear a BYU shirt in Laramie for 24 hours....in public.  (a good BYU shirt, not an anti-BYU shirt)

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Just now, Headbutt said:

It depends on what is being understood.  I can only understand one possible scenario for Boise to go this route.

The university president was faced with the choice of fighting a bunch of boosters who demanded a fight with the MWC to get a different deal and more money, or fighting a group of conference presidents.  The former hold the purse strings to a stadium upgrade and myriad other athletic department needs.  I think she took the bad road, but possibly the only viable road. 

I don't see Boise getting any additional funds out of this, but it may rescue the funding already in place.

I'm not sure on that. Maybe I'm overly imaginative, but I can see a few other winning routes on this point. 

PERSONALLY, I like BSU where it is barring some P5 invite. I think we can all agree that if that were to come, any one of us would bolt.

But, maybe from a biased perspective, I see BSU having more leverage here than the conference. BSU joining the AAC would probably be a wash from a money standpoint. If nothing else, the AAC has incentive to harm the MWC by making that a wash. 

But I also do admit I don't have all the information. You're totally fair in making the argument that BSU is just overplaying it's hand here.

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1 hour ago, nocoolnamejim said:

Ironically, actually not that different than the argument made against adding BSU to the conference pre-Utah departure. Basically the argument back then was that adding BSU would get the MWC closer but not CLOSE ENOUGH to achieve auto bid status to BCS bowls, and then the increased strength of the conference would cannibalize each other. So there was no benefit to adding Boise.

Basically the AAC's argument currently. 

I think they are two different arguments.  Last time there was actual metrics to hit, this time there isn't and that isn't by accident.  They don't want a P6 conference.  There is nothing the AAC can do on the field to become P6 really.  The TV partners would have to view them that way but the AAC is locked in for 12 years.  

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1 minute ago, nocoolnamejim said:

I'm not sure on that. Maybe I'm overly imaginative, but I can see a few other winning routes on this point. 

PERSONALLY, I like BSU where it is barring some P5 invite. I think we can all agree that if that were to come, any one of us would bolt.

But, maybe from a biased perspective, I see BSU having more leverage here than the conference. BSU joining the AAC would probably be a wash from a money standpoint. If nothing else, the AAC has incentive to harm the MWC by making that a wash. 

But I also do admit I don't have all the information. You're totally fair in making the argument that BSU is just overplaying it's hand here.

Don't get me wrong, I agree with you on your point that others would do the same.  If faced with a choice of conference Kumbaya or continued funding from important boosters, I absolutely think most schools would take the latter route.  It's just how it works.  I do think my scenario is more right than wrong though.  If it was legitimate dismay by the Boise brass then behind the scenes negotiations would be taking place, not a court filing.

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1 minute ago, Wyobraska said:

I think they are two different arguments.  Last time there was actual metrics to hit, this time there isn't and that isn't by accident.  They don't want a P6 conference.  There is nothing the AAC can do on the field to become P6 really.  The TV partners would have to view them that way but the AAC is locked in for 12 years.  

Very possibly right. I agree on it not being an accident that there's no metrics. I disagree that the AAC adding BSU wouldn't make that a harder position to sustain, and wouldn't turn the AAC into a default auto-bid where no other G5 conference would have a realistic chance of getting that invite. 

I still prefer BSU in the MWC. I don't like the geography of BSU in the AAC without a real western division, but I DO think the AAC + Boise is basically a lock to get that G5 invite every year.

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2 minutes ago, Headbutt said:

Don't get me wrong, I agree with you on your point that others would do the same.  If faced with a choice of conference Kumbaya or continued funding from important boosters, I absolutely think most schools would take the latter route.  It's just how it works.  I do think my scenario is more right than wrong though.  If it was legitimate dismay by the Boise brass then behind the scenes negotiations would be taking place, not a court filing.

You could be right. I don't think either of us have enough info to opine with certainty on. Despite the dismay that ending our discussion on that note might harm Mug's chances of getting this threat to 100 pages, would you like to end on that note?

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I find this all very interesting. Boise has two allegations / counts in the complaint.

Breach 1. - 

"As noted above, the Re-Entry Agreement expressly requires that the television
rights to Boise State's home football games are to be sold as a separate package and, more
importantly, that "Boise State and [the] MWC must mutually agree to whom such Boise State
home football game rights are licensed and to the material terms of such license. . . ." (Ex. I , fl 3 .)
The MWC materially breached the Re-Entry Agreement when it entered into the CBS/Fox
agreement, which encompassed the television rights to Boise State's home football games, without
Boise State's fully informed consent to its material terms."

Boise is clearly asserting that they were not fully informed. Not that they did not provide consent, but that the MW did not fully share the material terms of the sub license agreement (Boise's home game contract) with Boise.

If true, this could result in true damages. But what is interesting are the facts laid out by Boise in P28-33. In particular, they share the following:

" It (MWC) did not, however, disclose many of the proposed agreement's material terms,
including material monetary terms, such as how the revenue from the agreement would be
distributed, how bonuses would be paid or the agreement's cancellation terms"

I find this interesting for two reasons:

Boise is referencing distribution of media rights net revenue as being a material term for which their mutual agreement is necessary. However, the conference distribution methodology is not a part of the material terms of the sub license agreement (the MW deal for Boise's Home games) but is a part of the re-enrty agreement. Boise's contractual right is not to gain mutual agreement on any and all terms but simply the terms of the sub license agreement. I believe that will be difficult to convince a court that the MW and Boise intended to obtain mutual consent on every term of every agreement each is a party to in the relationship. IMO, There is no ambiguity in the plain English reading of the clause.

Boise is also arguing that since they believed that Thompson either directly or indirectly through Mr. Jordan would advocate for Boise to receive a proportional increase on top of the $1.8M, provided there approval. But in their own words, they concede that they would need to convince others to provide those additional dollars.

"Mr. Thompson, Dr. Tromp, and Mr. Apsey discussed the strategy for addressing this issue at the
upcoming Board of Directors meeting and the best method by which to go about attempting to
obtain what Boise State wanted and deserved"

Hard to say they thought an increase was in the bag and relied on it, Clearly Boise understood they needed to obtain that approval for an increased share. It appears they fully knew that they needed the consent of the MW BOD to get an increase share % which would support the notion that Boise provided their consent with the understanding that only the $1.8M was in effect.

Breach 2. -

"The Re-Entry Agreement as amended by the Re-Entry Agreement Amendment also
expressly requires the MWC to distribute the net television revenue in a specific manner.
Specifically, Boise State is to receive $1.8 million plus a share of the remainder of the net television
revenue equal to the shares received by the other member institutions, except the University of
Hawaii. Although the MWC is still paying the $1.8 million bonus explicitly required by this
contract, it inexplicably and improperly elected to cease such payments in six years. By electing
to do so, again without Boise State's consent, and despite the fact the Re-Entry Agreement as
amended by the Re-Entry Agreement Amendment does not have a termination date, the MWC
anticipatorily repudiated one of the material obligations it owes to Boise State under that contract".

Boise is arguing that the contract is enforceable in perpetuity. As many have pointed out in this thread, most case law in most States does not support that contracts without an evergreen clause to be enforceable in perpetuity for commercial contracts. The most likely outcome is that a contract without a specified term is in fact terminable with proper notice and with proper availability to  take advantage of the contractual terms.

In regards to availability, Boise has been benefiting from the contractual terms for 6 years and will continue to receive that benefit for another 6 years for 12 years in total. It will be an uphill battle to say that Boise did not receive the intended benefit of the agreement. Typically the court would be looking to see if parties enter into an agreement but before or for a very short implied period failed to receive the benefit. 12 Years or the length of two tv contractual periods is not a rug pulling, imo.

In regards to proper notice, the MW has provided Boise with essentially 6 years notice of termination of the agreement. Typically a court would look for natural inflection points of the commercial relationship to see if proper notice was provided. For instance, if you are hired to produce movies and are in the middle of producing a movie, terminating while that production was ongoing would be  viewed out of cycle. A notice that this was the last movie to be produced would be more inline with expectations. Providing six years notice that coincides with the current TV contract term, seems at first blush to be reasonable and within an ordinary business cycle.

A point that was not raised in their complaint but will eventually need to be adjudicated will be whether the MW can terminate just one provision of the agreement and not the entire agreement with proper availability and notice. I believe the courts would find that it is a whole or nothing proposition, meaning that the entire agreement is terminated and that Boise would be free to either renegotiate a new entry agreement or leave the conference entirely but not subject to the conference bylaws . Essentially Boise will be free to leave at no charge. I am not sure that is their intended end game, but that appears to be the likely outcome.

But even before you go to all of these interesting issues to be sorted, One would have to determine the Governing Law and Venue. I would think a CO nonprofit being sued by a State Entity will end up in Federal Court and not State court. Interstate commerce and. I also cannot imagine that the Presidents who are Stage employees who comprise the BOD will not have counsel step in to protect the States:

Hawaii, Nevada, CA, Utah, New Mexico, Wyoming, Colorado, and the Federal Government (DoD).

With that said, you never know the outcome of any type of bench or jury trial. From a business / relationship standpoint filing this complain and starting the litigation is a relationship killer. I would have to believe that Boise at some point will be exiting the conference.

 

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2 minutes ago, nocoolnamejim said:

You could be right. I don't think either of us have enough info to opine with certainty on. Despite the dismay that ending our discussion on that note might harm Mug's chances of getting this threat to 100 pages, would you like to end on that note?

We can end on that, but the thread must go on.  @mugtang needs a new boat.

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1 minute ago, nvspuds said:

I can't be shackled in my posting..I trade in uniformed and biased takes.  Certainty and accuracy are never factors in my opining.

They aren't in ANY opinions.

Actually, that's not quite right. It's entirely possible for somebody to be completely certain about an inaccurate opinion.

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