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Boise State Has Filed Suit Against the MWC

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16 minutes ago, Swoll Cracker said:

Imagine how bad it would be if Boise had an HD Truck.

It's the one truck Boise has long aspired to own.

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1 hour ago, nocoolnamejim said:

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.

Thing is this isn't helping BSU.  There might, might be some short term gain here but long term this is not helping BSU's reputation as an institution.  I grew up a Michigan fan as my family has a strong UM heritage and alumni.  There are ways for your big schools to use their power while building up the conference as a whole rather than irritating them.  This isn't about moral high ground.  If Wyoming or Michigan was doing this I would be embarrassed.

I don't fault Utah or TCU jumping up to join BCS/P5 conferences that is something that is in the best interest of your school.  As for the start of the MWC, the WAC wasn't working and I don't fault the founding members of the conference wanting to form a conference that was closer to the original WAC than the mega conference that wasn't working. A dysfunctional not working WAC is worse for the schools left behind then the conference they ended up with that generated decent BSU, Hawaii, SJSU, USU, and Nevada teams.  The MW is on the upswing, but what BSU is doing is sabotaging that.  Part of me thinks that the increasing competitiveness, their recent stinking bowl performances, plus timing of the contract is why BSU is doing what they are doing.

 

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1 hour 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.

 

A couple of points here.  

1)  Its worth noting conference membership agreements are in fact,  evergreen contracts which are enforceable in perpetuity. 

2)  Intent.  The purpose of the Boise term sheet was to lure Boise to stay in the MW, and forgo the more lucrative Big East opportunity.  Furthermore, the language suggests the intent was for the agreement to be permanent--as no expiration date is included.    In fact, rather than an expiration clause---the agreement instead expressly makes it clear that the terms apply to all "future" TV deals.    I'd also point out that the terms have already been modified and reaffirmed by all the membership at least one time since the original signing.  Thus, the league had a second opportunity to add an expiration date, but didnt.  

Sounds like the intent was for the deal to last as long as Boise remained a member.   If we agree that the term sheet was to remain enforceable as long as Boise is a member---then the reality is the MW is not stuck with the clause in perpetuity since there is an obvious eject button available to the MW (expulsion) if the terms become too onerous for the membership.  

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2 hours ago, e-zone99 said:

I have no idea what Nevada's recruiting budget is, but I would bet they would not mind adding another $160,000 to it.  Recruiting is not cheap and sometime that extra visit or visits to a recruits home could be the tipping point as to where they sign.

 

I agree, it could also mean the difference between a better coaches.

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21 minutes ago, BSUFan said:

Is this guy Adam Schiff's ghost writer.  That was hilarious.  Thank you.

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47 minutes ago, kingpotato said:

@mugtang, what's the longest thread? Was it that Utah State one? How many more pages do we need? I have some opinions that won't go over well if ya need

I think the Fire Dave Rice thread beat it but there was some shenanigans involved to get it that far.  

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59 minutes ago, kingpotato said:

@mugtang, what's the longest thread? Was it that Utah State one? How many more pages do we need? I have some opinions that won't go over well if ya need

These are the 4 longest threads on the board 

 

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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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It's been a long day, gentlemen.

I really do not want read through it all.  Summary pls. In about 5 words. Like billboard style.  I'll give you boys a few moments.  I was avoiding this topic on purpose. Really didn't want to know.  5 words pls. One of them better not include Divorce.  thx.  If one of them includes Ego.  Fine.  I can handle that. 

Go. Say. 

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37 minutes ago, UofNPackFan said:

I agree, it could also mean the difference between a better coaches.

Except for the fact that without Boise you guys would be earning about half of what you currently get for tv. But I get it. Continue to bitch and moan. 

"but we only lost to Stanford by 3."

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21 minutes ago, CaffeinatedCoog said:

A couple of points here.  

1)  Its worth noting conference membership agreements are in fact,  evergreen contracts which are enforceable in perpetuity. 

2)  Intent.  The purpose of the Boise term sheet was to lure Boise to stay in the MW, and forgo the more lucrative Big East opportunity.  Furthermore, the language suggests the intent was for the agreement to be permanent--as no expiration date is included.    In fact, rather than an expiration clause---the agreement instead expressly makes it clear that the terms apply to all "future" TV deals.    I'd also point out that the terms have already been modified and reaffirmed by all the membership at least one time since the original signing.  Thus, the league had a second opportunity to add an expiration date, but didnt.  

Sounds like the intent was for the deal to last as long as Boise remained a member.   If we agree that the term sheet was to remain enforceable as long as Boise is a member---then the reality is the MW is not stuck with the clause in perpetuity since there is an obvious eject button available to the MW (expulsion) if the terms become too onerous for the membership.  

Articles of incorporation and By-Laws are not commercial contracts. They are organizational formation contracts that are actually between the members/shareholders and the State. But keep in mind what was executed was a re-entry agreement outside of the by-laws. If they would have voted to have changed the by-laws and enshrined the re-entry terms, then you could rely on that argument that it goes in perpetuity. In fact, by executing the re-entry agreement not once by twice and leaving the by-laws intact, it supports the notion that the re-entry agreement stands on its own. I suspect that was intended by Boise as any bylaw could be changed by 75% vote and thought there best avenue to securing these rights for long as possible would be via the stand alone re-entry agreement.

As for intent, even if you presume there was an intent from the parties to have the contract continue indefinitely, case law supports that the courts will find an equitable termination date. They could have an email from Thompson saying this goes forever and I believe the courts would still find a separation date. It is just to bred into English Common law for commercial contracts. Transfer of ownership being the commonly cited exception.

Putting all of the fine point agreements to the side, there is little hope in patching up the relationship once someone has started litigation. Trust, once the trust is gone the relationship is gone.

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Basically a bitch fest betwixt Boise and MWC.  I have not bothered to read any of this long nonsense. I was asking for a quick bite pls.  You know, like TCU bolting under the table for BE, which didn't happen then off to XII.

Is Boise going to the SEC?  Yawn. Boise trying to get into (yawn) P6 AAC?  Boise whatever.

Why is it always about Boise in MWC land?  Seriously, dudes.  Aztecs outperform across the board in my humble opinion

 

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2 minutes ago, Coog kev said:

Basically a bitch fest betwixt Boise and MWC.  I have not bothered to read any of this long nonsense. I was asking for a quick bite pls.  You know, like TCU bolting under the table for BE, which didn't happen then off to XII.

Is Boise going to the SEC?  Yawn. Boise trying to get into (yawn) P6 AAC?  Boise whatever.

Why is it always about Boise in MWC land?  Seriously, dudes.  Aztecs outperform across the board in my humble opinion

 

I don't anticipate Boise remaining in the MW much longer..As a poster said earlier, legal filings are relationship killers.  

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