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Boise State Has Filed Suit Against the MWC

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Just now, Headbutt said:

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

 

5 minutes ago, Savage said:

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.

 

Thank you.  That was sincerely enlightening.  One error though in your assumptions (and I bolded it), the commissioner never stated that Boise wouldn't receive extra revenue, just that it was likely that this would be the last contract in which Boise's rights would be negotiated separately.  We don't know if that's an attempt to reduce revenue, or just an attempt to streamline media negotiations.

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2 minutes ago, nvspuds said:

Vader is looking to sue because they brought Palpatine back but not him in the last movie..

Don't get me started about the Rise of Skywalker.

...

Actually, go ahead and get me started. There's nothing like a ranting COMPLETELY irrelevant tangent to extend a thread's.........length.

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2 minutes ago, nocoolnamejim said:

Don't get me started about the Rise of Skywalker.

...

Actually, go ahead and get me started. There's nothing like a ranting COMPLETELY irrelevant tangent to extend a thread's.........length.

So answer me this .. why did Palpatine hate Utah State so much? And why did he want to retain Dave Rice? 

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3 minutes ago, Headbutt said:

 

Thank you.  That was sincerely enlightening.  One error though in your assumptions (and I bolded it), the commissioner never stated that Boise wouldn't receive extra revenue, just that it was likely that this would be the last contract in which Boise's rights would be negotiated separately.  We don't know if that's an attempt to reduce revenue, or just an attempt to streamline media negotiations.

That passage is from the complaint paragraph 43, that is Boise's assertion and one of the breach of contracts.

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Just now, Savage said:

That passage is from the complaint paragraph 43, that is Boise's assertion and one of the breach of contracts.

Fair enough.  Thank you.

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Just now, BSUTOP25 said:

So answer me this .. why did Palpatine hate Utah State so much? And why did he want to retain Dave Rice? 

The reasons to hate Utah State are self evident. We all agree that Utah State sucks.I mean we can all agree on THAT at least can't we? Seriously, +++++ those guys.

And as for why they wanted them to retain Dave Rice, it's clearly some sort of Order 66 stuff. Dave Rice was obviously a sleeper agent. I don't even know why we're discussing this. SLEEPER. AGENT.

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17 minutes ago, Savage said:

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.

 

Appreciate the break down.

"Make like a tree and scram" - Rosegreen

 

Your administration is the reason why our basketball league is bleeding out currently. If you didn't insist on San Jose being in the MWC, so you guys would have someone that votes similar to SDSU, every team in the MWC wouldn't have to play 2 games vs. a team with a 330 RPI ranking EVERY season.

You guys are as stupid as you are desperate.   - Cowboy Junky

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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.

This has been my hunch all along.  I do think waiving the exit fee in exchange for Boise dropping the suit is a win/win

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30 minutes ago, nocoolnamejim said:

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.

They probably would, an undefeated App St or another team with the right schedule might beat them out.  It also isn't guaranteed that Memphis, UCF, Cincy, etc maintain their current status.  They have a great shot, but those schools haven't shown decades of consistent success either.  Coaches are continually poached at the G5 level and if you miss on some coaches, it can really hurt your program.

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5 hours ago, ShoichiKUN808 said:

Not entirely sure but I believe that Hawaii does get a vote regarding football-related matters. So things like that Gonzaga decision, etc. the school wouldn't have a say in.

In looking at the MWC Bylaws, it doesn’t appear to indicate that Hawaii is limited as to voting in that regard, although, practically-speaking, one wouldn’t think they would have a vote on non-football matters. 

Section 1.03 states that each Member Institution is entitled to appoint one (1) Director to the Board of Directors, so to the extent that Hawaii is listed in Appendix A-16 therein as being a “voting member of the corporation” I would think that this whole media rights spiel was a 13 vote affair. Or maybe because Hawaii has s separate TV deal that would’ve precluded their vote here. Not sure. 

Interestingly, and I’m thinking notwithstanding anything Boise’s special Media Rights/Re-Entry Agreement, as amended, says to the contrary, Section 2.10 indicates that “three-fourths (3/4) of Members of the BOD shall constitute a Quorum for the transaction of business.. and that “the vote of a majority of the Directors present in person at a meeting at which a quorum is present shall be the act of the Board of Directors, except where the vote of a specified percentage of the Members of the Board of Directors is required for approval.”

Flash-forward to Section 4.01(g) and that one says “significant contracts and legal documents that constitute major matters (i.e., television contracts, bowl contracts) shall require approval of a majority of the Directors then in office and the signatures of the President and the Commissioner.”

And then there’s Litigation under 7.06 which says that “in any proceeding against the Conference commenced by a Member, the nonprevailing party shall pay the attorneys fees and cost of the prevailing party.”

Nothing too earth-shattering here, but just some food for thought...

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43 minutes ago, UofNPackFan said:

Maybe... maybe a day earlier in Hawaii could have prevented that loss, lol ,oh man.

That $160k could have gotten your team to Hawaii via plane rather than boat. I concede, you’ve been right all along. 

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17 minutes ago, Dirtball said:

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.

I think you hit on something and that this is their endgame, they want to forego the exit fee. 

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6 minutes ago, Ibanez said:

That's sad. It really is.

No, not really. The school has a proud history in football.  Many achievements reached. Sure not as of late but things go in cycles.  But when I talk  BSU vs Nevada all I need is 2010, the crushing dreams of the Bronco faithful.  

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36 minutes ago, Savage said:

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.

 

That has kind of been my takes also, my gut says that Boise St is already missing ESPN and is looking at a way to get back on "The World Wide Leader".

 

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5 minutes ago, Wyobraska said:

I think ESPN might be in their ear too.

Usually, if there is strife in college athletics...ESPN is in somebody's ear.

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8 minutes ago, Wyobraska said:

I think ESPN might be in their ear too.

I said something like that in a earlier post.   ESPN will not have as much Western inventor now the MWC is not going to be under contract with them, so why wouldn't try to poach the school they wanted the most.   You can bet they are in the mix with a lot of things from: throwing out contract numbers to helping with scheduling to bowl games to helping find a landing spot for other sports and they do have experience from helping BYU the last number of years.

 

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