EKU v OVC

[UNAPride]

Eastern Kentucky as countersued the Ohio Valley Conference shedding light on what was an attempt to merge the ASUN and OVC.


EKU launches countersuit against OVC; school officials tried to work out merger between OVC/ASUN

EKU's counterclaims also sheds light on a previously unknown effort by EKU to broker a deal to merge the OVC and the ASUN.
According to court documents, EKU accuses the OVC of anti-competitive practices under the Kentucky Consumer Protection Act.

https://www.richmondregister.com/sports/eku-launches-countersuit-against-ovc-school-officials-tried-to-work-out-merger-between-ovc-asun/

[Libertine]

The most interesting thing to me is argument at the basis of EKU's countersuit against the OVC: that depriving EKU of a fall '20 football season financially damaged the university -- which is probably factually true even though there were some obvious extenuating circumstances and, of course , the season being cancelled for COVID was not a situation strictly limited to EKU and the OVC -- and breached the OVC's contractual obligations to its member schools, meaning that EKU's contract with the OVC was voided and the Colonels were free and clear to leave the conference at that point. Further, they have not signed a new conference agreement with the OVC since so also never agreed (again) to pay a $1,000,000 exit fee.

If that last particular legal gem holds up in court, it could have wide-ranging implications across FCS.

[taper]

I would assume the OVC contract has a force majeure clause. Covid would easily be enough to activate that.

[JSUSoutherner]

Interesting that we got this nugget out of EKU but no word of the state of the OVC vs JSU case.

[Libertine]

Interesting that we got this nugget out of EKU but no word of the state of the OVC vs JSU case.

Neither JSU nor the OVC is likely to comment on an ongoing litigation and the only media outlet likely to cover it is the thrice-weekly Anniston Star, soooooo....probably nothing to be heard but crickets.

[mvfcfan]

One thing is for sure. EKU will never be welcomed into the OVC again if they ever needed a home. Not after this ongoing drama.

[taper]

I wonder how many millions in legal fees EKU will spend to try to stop paying a $1M exit fee that state law says they have to.

[UNAPride]

The most interesting thing to me is argument at the basis of EKU's countersuit against the OVC: that depriving EKU of a fall '20 football season financially damaged the university -- which is probably factually true even though there were some obvious extenuating circumstances and, of course , the season being cancelled for COVID was not a situation strictly limited to EKU and the OVC -- and breached the OVC's contractual obligations to its member schools, meaning that EKU's contract with the OVC was voided and the Colonels were free and clear to leave the conference at that point. Further, they have not signed a new conference agreement with the OVC since so also never agreed (again) to pay a $1,000,000 exit fee.

If that last particular legal gem holds up in court, it could have wide-ranging implications across FCS.

From what I've read, back then and since, this was the main factor in several football-focused schools wanting to leave the OVC. Since that "situation", the conference has lost five total members (four with football).

[ElCid]

The most interesting thing to me is argument at the basis of EKU's countersuit against the OVC: that depriving EKU of a fall '20 football season financially damaged the university -- which is probably factually true even though there were some obvious extenuating circumstances and, of course , the season being cancelled for COVID was not a situation strictly limited to EKU and the OVC -- and breached the OVC's contractual obligations to its member schools, meaning that EKU's contract with the OVC was voided and the Colonels were free and clear to leave the conference at that point. Further, they have not signed a new conference agreement with the OVC since so also never agreed (again) to pay a $1,000,000 exit fee.

If that last particular legal gem holds up in court, it could have wide-ranging implications across FCS.

I don't think they have a legal leg to stand on in regard to cancelling the season in 2020 since it was for everyone in the conf, not "just" EKU. It may require some legal gymnastics to pursue that line. I think it would be a stretch to say that their association was null and void as a result. Not to mention all the other sports. And the "damage" part would be a stretch since they did play 9 games in the fall of 2020, including three FBS. Their FCS schedule was 4 home, 2 away. They may have made out better or at least close to a wash so financial damages are, questionable, or at best, minimal. I think they are just betting the OVC blinks.

[walliver]

Their arguments look incredibly weak. If they win the sovereign immunity argument, no company would ever do business with them in the future.

If EKU can’t pay the exit fee, they should move down to D-2.

[JSUSoutherner]

I don't think they have a legal leg to stand on in regard to cancelling the season in 2020 since it was for everyone in the conf, not "just" EKU. It may require some legal gymnastics to pursue that line. I think it would be a stretch to say that their association was null and void as a result. Not to mention all the other sports. And the "damage" part would be a stretch since they did play 9 games in the fall of 2020, including three FBS. Their FCS schedule was 4 home, 2 away. They may have made out better or at least close to a wash so financial damages are, questionable, or at best, minimal. I think they are just betting the OVC blinks.
We played a conference schedule in 2020. Everyone but EKU played the spring schedule. So it was "just" EKU.

[mvfcfan]

Their arguments look incredibly weak. If they win the sovereign immunity argument, no company would ever do business with them in the future.

If EKU can’t pay the exit fee, they should move down to D-2.

Yeah but they think they're ready to be FBS. The Conference USA can't be too impressed with a school that's too cheap to pay a little $1M exit fee.

[taper]

Their arguments look incredibly weak. If they win the sovereign immunity argument, no company would ever do business with them in the future.

If EKU can’t pay the exit fee, they should move down to D-2.
They won't win on sovereign immunity. Kentucky passed a state law waiving their 11th Amendment rights in regard to contracts. SCOTUS has already ruled they can do that and the judge in this case has referenced that law.

[ElCid]

We played a conference schedule in 2020. Everyone but EKU played the spring schedule. So it was "just" EKU.

Pretty sure that was played in the spring. Their 9 games were in fall. So "they" made a decision, NOT the conf. Right?

[Libertine]

Pretty sure that was played in the spring. Their 9 games were in fall. So "they" made a decision, NOT the conf. Right?

No, there's a timeline involved. The 2020 season was cancelled by the OVC and well ahead of making any arrangements -- which we all remember were extremely tenuous even then -- for play in the spring of 2021. EKU's argument is that the OVC cancellation financially damaged the university and they had to play what was essentially an exhibition schedule on their own to limit the damage.

[ElCid]

No, there's a timeline involved. The 2020 season was cancelled by the OVC and well ahead of making any arrangements -- which we all remember were extremely tenuous even then -- for play in the spring of 2021. EKU's argument is that the OVC cancellation financially damaged the university and they had to play what was essentially an exhibition schedule on their own to limit the damage.

But they were not ultimately damaged financially, necessarily. Scrambling to get a schedule, that actually worked, doesn't automatically equal damage. Again, they did have three FBS games. Might be inconvenient, but life's tough. I'm sure they would have to open the books and provide detailed, and verifiable, proof. Again, I think they are just throwing concepts out to see what sicks.

[JSUSoutherner]

This is me 100% wearing ​my tin foil hat, but I think the reason JSU and EKU are being so brazen with telling the OVC to kick rocks is they expected the OVC to have fallen apart by now.

[Mocs123]

The OVC is teetering on the edge for sure.

[Libertine]

But they were not ultimately damaged financially, necessarily. Scrambling to get a schedule, that actually worked, doesn't automatically equal damage. Again, they did have three FBS games. Might be inconvenient, but life's tough. I'm sure they would have to open the books and provide detailed, and verifiable, proof. Again, I think they are just throwing concepts out to see what sicks.

Your last sentence may be true but the first sentence is incorrect; every FCS program was damaged financially in 2020 by the decision to postpone the season. EKU's argument is that the OVC failed their member institutions and the fact that EKU managed to squeeze a nine-game season out of nothing was thanks to their own effort after the fact. Whether they ended up playing nine games with three FBS or two games against Bishop Sycamore is completely irrelevant. Imagine it this way: if your HOA accidentally sets fire to your house, it was damaged regardless of whether you managed to limit the fire to the back porch or whether it burned the home to the ground.

What's interesting about this case is that EKU's circumstances are not at all unique; however, contracts are specifically stipulated agreements and the parties to those contracts are not obligated to give each other flexibility outside of those agreements simply due to extenuating circumstances. Further, neither are the courts. If COVID had never happened and OVC cancelled the season, this would be an obvious no-brainer that, yes, the OVC failed their members and breached their contract. I haven't read the OVC constitution or conference agreement but I would bet that it more than likely contains a force majeure (act of God) clause but, to this point, there is still no court ruling determining that 'COVID=force majeure'. So, from a strictly legal standpoint, EKU might have a point.

Here's where it gets really interesting, though. As I said before, every FCS program was financially damaged by their conference's decision to ditch the Fall 2020 schedule. Let's say that EKU and the OVC can't negotiate an exit and this goes all the way to a court ruling. If a court were to find in favor of EKU's argument that the OVC breached their contract by cancelling the fall season, that would potentially give every FCS school, every D2 school, every D3 school and every NAIA school whose conference cancelled or postponed their 2020 season a legal foothold to walk out of the door on their respective conferences without penalty.

[ElCid]

Your last sentence may be true but the first sentence is incorrect; every FCS program was damaged financially in 2020 by the decision to postpone the season. EKU's argument is that the OVC failed their member institutions and the fact that EKU managed to squeeze a nine-game season out of nothing was thanks to their own effort after the fact. Whether they ended up playing nine games with three FBS or two games against Bishop Sycamore is completely irrelevant. Imagine it this way: if your HOA accidentally sets fire to your house, it was damaged regardless of whether you managed to limit the fire to the back porch or whether it burned the home to the ground.

What's interesting about this case is that EKU's circumstances are not at all unique; however, contracts are specifically stipulated agreements and the parties to those contracts are not obligated to give each other flexibility outside of those agreements simply due to extenuating circumstances. Further, neither are the courts. If COVID had never happened and OVC cancelled the season, this would be an obvious no-brainer that, yes, the OVC failed their members and breached their contract. I haven't read the OVC constitution or conference agreement but I would bet that it more than likely contains a force majeure (act of God) clause but, to this point, there is still no court ruling determining that 'COVID=force majeure'. So, from a strictly legal standpoint, EKU might have a point.

Here's where it gets really interesting, though. As I said before, every FCS program was financially damaged by their conference's decision to ditch the Fall 2020 schedule. Let's say that EKU and the OVC can't negotiate an exit and this goes all the way to a court ruling. If a court were to find in favor of EKU's argument that the OVC breached their contract by cancelling the fall season, that would potentially give every FCS school, every D2 school, every D3 school and every NAIA school whose conference cancelled or postponed their 2020 season a legal foothold to walk out of the door on their respective conferences without penalty.

Well I'm fairly sure that most courts will take the virus into huge consideration. And it might be interesting to see what actual government restrictions were in place against all parties involved. In regard to restrictions, some states, cities, etc., were more strict than others. Were fans even allowed by school policy? Lots of considerations here. Non of which were caused by the OVC. You would have to look at EKUs policies, and every other school's as well as all conf jurisdiction's policies and restrictions.

And I still am not convinced they were seriously damaged financially. Three FBS!? They might have walked away with 750K there. Maybe not. Maybe more. And I don't agree with the analogy. The OVC did not destroy their ability to play games, as evidenced by their actual schedule. The OVC only affected conf counting games. Not even potential non-conf games against conf mates. If I was a judge in this case, I would tell EKU to fork over their books for last few years and prove it. While they may have been damaged, it looks minimal by eyeballing it. Certainly not $1M worth.