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A years-long dispute between the Florida State University Board of Trustees and the Atlantic Coast Conference, which has not been resolved through negotiations thus far, has landed in the courts for what is expected to be a long and consequential fight for both entities.
Given the complexity and likely lengthy nature of the litigation, the Osceola has committed itself to providing its readers with a series of articles about this potential turning point in the history of Florida State athletics. To this end, the Osceola is consulting with a panel of lawyers for their expertise and direction. While this lawsuit can go in many different directions, this article was written to provide you with the background on the litigation between FSU and the ACC and is the first in what will be a number of stories over the coming months.
FSU Legal Filings
The ACC’s amended complaint seeks a Declaratory Judgement and the imposition of money damages against the FSU BOT. The 55-page complaint was filed in the General Court of Justice, Superior Court Division, in Mecklenburg County, N.C. In their filings, both the Florida State BOT and the ACC argued their respective cases for venue, FSU arguing for Florida and the ACC for North Carolina.
We think venue will be the first major battleline in what is expected to be a lengthy legal process. Currently, there are two active suits. FSU’s is in Leon County, and the ACC’s is in Mecklenburg County (Charlotte, N.C.).
The FSU trustees also hired a North Carolina-based legal team to respond to the ACC’s complaint in Charlotte. The attorneys named in the court filings are Christopher C. Lam and C. Bailey King from the Charlotte office of Bradley Arant Boult Cummings, LLP, which is a well-respected law firm with offices throughout the Southeast.
Both Lam and King are experienced business litigators. According to Matt Baker with the Tampa Bay Times, King also has a collegiate athletics background having played football at Wofford and has been on the board of directors of its fundraising organization, the Terrier Club, which raises scholarship money. King has also served on the host committee for the Duke’s Mayo Bowl.
James P Cooney, of Womble Bond Dickinson, is the lead counsel for the ACC. Womble Bond Dickinson is a well-known international law firm with strong North Carolina ties.
The ACC also hired a Florida-based legal team, Lawson Huck Gonzalez, PLLC, to represent the conference in the Leon County suit. Alan Lawson, a former Florida Supreme Court Justice, is on the team with Raymond F. Treadwell, a former chief deputy general counsel to Gov. Ron DeSantis. Lawson earned his undergraduate from Clemson and his law degree from Florida State. Treadwell did his undergraduate at Florida and his J.D. at Yale.
December 27 and January 3: While FSU was served on December 22, 2023, the ACC also served copies of the suit to State Attorney Jack Campbell on Dec. 27 and Florida’s Attorney General Ashley Moody on Jan. 3. It was a day later that Moody sent her request to the ACC for a copy of the contracts with ESPN, as well as business records and communications between the ACC and ESPN as it pertains to FSU.
For now, the Leon County Circuit Court has assigned the case to Judge John Cooper, who has both a bachelors and Juris Doctor from Florida State. A longtime Tallahassee resident, Cooper has been described as cerebral judge, one who is fair when “calling balls and strikes” and one who is known to challenge the attorneys on both sides of a case.
A former founding partner with the local law firm Cooper, Coppins & Monroe, Cooper was elected to the bench in 2002 and re-elected by voters in 2008, 2014 and 2020 when he ran unopposed. His current six-year term expires in 2027. He is the third longest serving judge among the 13 judges serving in the Second Circuit of Florida.
In its declaratory judgment action, the Florida State BOT claims that it “could not submit its petition to withdraw from the ACC in August of 2023 without first obtaining a definitive understanding of the financial consequences of such a decision.
“To assess those financial consequences, the FSU BOT must first determine whether either or both the ACC Severe Withdrawal Penalty and/or the ACC’s Grant of Rights (GOR) are legally enforceable against Florida State.”
The ACC’s original complaint, filed on Dec. 21, asks the judge to rule that the GOR is valid and enforceable, and that Florida State is precluded (or estopped or legally barred) from challenging the GOR by knowingly entering into the agreement and then by accepting hundreds of millions of dollars in benefits for over a decade.
January 17, 2024: In its amended complaint, filed on January 17, 2024, the ACC again requested a declaratory judgment but also sought monetary damages for what the ACC alleges are “multiple breaches of contract Florida State committed.”
The ACC alleges FSU violated the signed agreement when it chose to challenge the exclusive grant of rights. The conference also alleges the school released confidential — “trade secrets” between the ACC and ESPN. in its 55-page filing, the ACC seeks a trial and damages it “reasonably believes will be substantial.”
The ACC asked the court for a permanent injunction barring FSU from participating in the management of league affairs while it “has a direct and material conflict of interest” with the ACC’s purposes and objective.
Finally, the conference seeks “permanent injunctive relief to prevent Florida State from continuing to disclose confidential information and to prevent Florida State from continuing to breach its fiduciary obligations to the Conference under the ACC Constitution and Bylaws and North Carolina law.”
The ACC claims that “multiple members of the FSU BOT claimed the Conference treated the GOR and amended GOR as a confidential document and would not allow Florida State to have a copy of the agreements,” however, the ACC alleges that “Florida State retained an executed copy of the Grant of Rights and, in fact, provided it to the public.”
The ACC also alleges that in spite or “repeated warnings and the language of the ESPN Agreements, Florida State chose to deliberately and publicly disclose or authorized the disclosure of confidential information from the ESPN Agreements,” including at the Dec. 22 Board of Trustee meeting, where “FSU counsel discussed at length the future media rights to be paid under the ESPN Agreements.”
While Texas and Oklahoma announced their intent to leave the Big 12 they chose not to contest the GOR, instead deciding to wait until the GOR expired in 2024.
July 2022: UCLA and USC announced their intent to leave the Pac-12 by August 2023, which coincided with the termination of the Pac-12’s GOR. Washington and Oregon followed UCLA and USC to the Big 10, while six other Pac-12 schools also resigned from the Pac-12.
FSU’s situation differs from the Pac-12 or Big 12 schools in that the ACC contract is alleged to extend to 2036, with a buyout estimated at $570 million by FSU in their complaint.
August 2022: According to the ACC complaint, in August of 2022 FSU President Richard McCullough began to publicly discuss conference realignment. “It’s something I’m spending a lot of time on and getting a lot of help…” he told the BOT in a public meeting. “We’re trying to do anything we can to remain competitive. Florida State is expected to win. We’re going to be very aggressive.”
February 24, 2023: The FSU BOT openly discussed withdrawing from the ACC and the cost of withdrawal in order to move to another conference where the program would generate an additional $30 million to $40 million per year. In its amended complaint, the ACC sites these public discussions as a breach of contract.
It’s important to note that unlike other states, Florida’s Sunshine Law requires Board of Trustee meetings be held in the sunshine, meaning everything that needs to be discussed will be done so with the media and/or public present. The law further restricts two or more trustees from discussing a university related topic without public notice, so everything discussed among BOT members is in the public.
The FSU BOT members unequivocally said FSU’s sports teams will not be able to maintain comprehensive excellence against peers in the SEC or Big10 if it is forced to remain in the ACC until 2036 with the disparity between the ACC and the SEC media rights payouts growing from $7 million per year, per school to $30 million per school, per year starting in 2024. That disparity will grow to $40 million per year, per school with the multi-media rights agreement FOX negotiated with the Big Ten schools.
This is when FSU Athletic Director Michael Alford began advocating for unequal revenue sharing in the ACC arguing at the February BOT meeting that FSU attracted 15 percent of ACC viewership but was receiving 7.5 percent of the revenue (the equal share).
May 17, 2023: According to the ACC claim, “the Conference endorsed the concept of a larger share of post-season revenues to the Members that generated those revenues, rather than equally among all Members.”
After expressing initial satisfaction with the endorsement, the ACC claim states that Florida State immediately began advocating for an unequal share of all Conference revenue.
August 2, 2023: Still with no details from the ACC on what the post-season revenue award could be from the May meeting, FSU openly discussed what McCullough referred to as an existential crisis at the August 2, 2023 Board of Trustee meeting.
August 15, 2023: The deadline to announce an exit from the conference passes without FSU filing its intention to leave.
September 8, 2023: There was no discussion of leaving the ACC at the September Board of Trustees meeting but following the meeting, The Osceola asked Board of Trustees Chairman Peter Collins for an update. “There will be no more discussion on the matter until after the football season is over as we don’t want it to be a distraction to what could be a special season,” Collins said, adding, “But don’t take our silence as inactivity.”
The ACC office did not. In its amended filing on January 17, 2024, the ACC stated those BOT meetings led them to believe FSU was “scheming” to exit the conference.
It is likely that the Board of Trustee’s 38-page complaint against the ACC, filed on Dec. 22, is the activity Collins referred to on September 8th. Anticipating this day would eventually come from one member institution or the other, the ACC obviously began work on its extensive complaint filed against FSU some time before its December 21 filing.
In other words, a school can choose to pay the exit fee of $130 million to leave the conference but the ACC retains the rights to that school’s home games until 2036, which makes the school less valuable to another conference and precludes a school from going independent.
Network, the Amended Grant of Rights states, ‘ESPN has informed the conference that it will enter into the Prospective Agreements only if the Member Institutions agrees to amend the Original Grant Agreement to extend the term thereof (from June 30, 2027 to June 30, 2036).’ ”
In their filing, the ACC claims, “The Grant of rights was further necessary to provide content to the ACC Network for as long as the Network operated. Absent certainty as to the duration of the Grant of Rights, the ACC and ESPN could not establish the ACC Network, nor market it to cable providers. Consequently, the term of the Grant of Rights was extended to be coterminous with the life of the ACC Network under the Network Agreement.”
The ACC’s complaint argues that FSU has received consideration in support of the Grant Agreement. While the amounts are redacted in the complaint, the ACC claims FSU’s distribution from the ACC more than doubled over time.
While FSU repeatedly has claimed the College Football Playoff snub of FSU and the ACC had nothing to do with the timing of their filing, it is the lead sentence in the Overview section of the complaint. However, long before the playoff snub, back in August, the trustees were unanimous in their support to leave the conference — which trustee Justin Ross called for — before the August 15, 2023 deadline.
The Trustees did not exercise that risky option, instead seeking clarity first through this declaratory judgment action.
The parties have until Feb. 16 to respond.
What's the essence of lawsuits between FSU and ACC?
By: Jerry Kutz - The OsceolaA years-long dispute between the Florida State University Board of Trustees and the Atlantic Coast Conference, which has not been resolved through negotiations thus far, has landed in the courts for what is expected to be a long and consequential fight for both entities.
Given the complexity and likely lengthy nature of the litigation, the Osceola has committed itself to providing its readers with a series of articles about this potential turning point in the history of Florida State athletics. To this end, the Osceola is consulting with a panel of lawyers for their expertise and direction. While this lawsuit can go in many different directions, this article was written to provide you with the background on the litigation between FSU and the ACC and is the first in what will be a number of stories over the coming months.
The lawsuits filed
December 21-22, 2023: On the morning of Dec. 22, the FSU Board of Trustees (BOT) filed complaint for a Declaratory Judgment against the Atlantic Coast Conference (ACC) in the Second Judicial Circuit in and for Leon County. Just minutes after the board voted unanimously to sue the ACC, FSU was served with a complaint from the Atlantic Coast Conference which had filed a suit against FSU on the afternoon of December 21, prior to FSU’s vote. The ACC also filed an amended complaint on Jan. 17.FSU Legal Filings
The ACC’s amended complaint seeks a Declaratory Judgement and the imposition of money damages against the FSU BOT. The 55-page complaint was filed in the General Court of Justice, Superior Court Division, in Mecklenburg County, N.C. In their filings, both the Florida State BOT and the ACC argued their respective cases for venue, FSU arguing for Florida and the ACC for North Carolina.
We think venue will be the first major battleline in what is expected to be a lengthy legal process. Currently, there are two active suits. FSU’s is in Leon County, and the ACC’s is in Mecklenburg County (Charlotte, N.C.).
FSU, ACC select outside legal counsel
David Ashburn, managing partner for Greenberg Traurig’s Tallahassee office is the lead counsel for Florida State. Greenberg Traurig is a renown international law firm with numerous offices in Florida. Ashburn has been described as well prepared, innovative and proactive by fellow lawyers.The FSU trustees also hired a North Carolina-based legal team to respond to the ACC’s complaint in Charlotte. The attorneys named in the court filings are Christopher C. Lam and C. Bailey King from the Charlotte office of Bradley Arant Boult Cummings, LLP, which is a well-respected law firm with offices throughout the Southeast.
Both Lam and King are experienced business litigators. According to Matt Baker with the Tampa Bay Times, King also has a collegiate athletics background having played football at Wofford and has been on the board of directors of its fundraising organization, the Terrier Club, which raises scholarship money. King has also served on the host committee for the Duke’s Mayo Bowl.
James P Cooney, of Womble Bond Dickinson, is the lead counsel for the ACC. Womble Bond Dickinson is a well-known international law firm with strong North Carolina ties.
The ACC also hired a Florida-based legal team, Lawson Huck Gonzalez, PLLC, to represent the conference in the Leon County suit. Alan Lawson, a former Florida Supreme Court Justice, is on the team with Raymond F. Treadwell, a former chief deputy general counsel to Gov. Ron DeSantis. Lawson earned his undergraduate from Clemson and his law degree from Florida State. Treadwell did his undergraduate at Florida and his J.D. at Yale.
December 27 and January 3: While FSU was served on December 22, 2023, the ACC also served copies of the suit to State Attorney Jack Campbell on Dec. 27 and Florida’s Attorney General Ashley Moody on Jan. 3. It was a day later that Moody sent her request to the ACC for a copy of the contracts with ESPN, as well as business records and communications between the ACC and ESPN as it pertains to FSU.
For now, the Leon County Circuit Court has assigned the case to Judge John Cooper, who has both a bachelors and Juris Doctor from Florida State. A longtime Tallahassee resident, Cooper has been described as cerebral judge, one who is fair when “calling balls and strikes” and one who is known to challenge the attorneys on both sides of a case.
A former founding partner with the local law firm Cooper, Coppins & Monroe, Cooper was elected to the bench in 2002 and re-elected by voters in 2008, 2014 and 2020 when he ran unopposed. His current six-year term expires in 2027. He is the third longest serving judge among the 13 judges serving in the Second Circuit of Florida.
FSU, ACC each ask for declaratory judgement
Each party is asking the respective judges for a declaratory judgment on specific points of law. Unlike claims that request monetary damages or an injunction (required court-ordered behavior), declaratory judgment claims request that a court provide clarity regarding parties’ legal rights instead of filing a lawsuit seeking money damages or an injunction.In its declaratory judgment action, the Florida State BOT claims that it “could not submit its petition to withdraw from the ACC in August of 2023 without first obtaining a definitive understanding of the financial consequences of such a decision.
“To assess those financial consequences, the FSU BOT must first determine whether either or both the ACC Severe Withdrawal Penalty and/or the ACC’s Grant of Rights (GOR) are legally enforceable against Florida State.”
The ACC’s original complaint, filed on Dec. 21, asks the judge to rule that the GOR is valid and enforceable, and that Florida State is precluded (or estopped or legally barred) from challenging the GOR by knowingly entering into the agreement and then by accepting hundreds of millions of dollars in benefits for over a decade.
January 17, 2024: In its amended complaint, filed on January 17, 2024, the ACC again requested a declaratory judgment but also sought monetary damages for what the ACC alleges are “multiple breaches of contract Florida State committed.”
The ACC alleges FSU violated the signed agreement when it chose to challenge the exclusive grant of rights. The conference also alleges the school released confidential — “trade secrets” between the ACC and ESPN. in its 55-page filing, the ACC seeks a trial and damages it “reasonably believes will be substantial.”
The ACC asked the court for a permanent injunction barring FSU from participating in the management of league affairs while it “has a direct and material conflict of interest” with the ACC’s purposes and objective.
Finally, the conference seeks “permanent injunctive relief to prevent Florida State from continuing to disclose confidential information and to prevent Florida State from continuing to breach its fiduciary obligations to the Conference under the ACC Constitution and Bylaws and North Carolina law.”
The ACC claims that “multiple members of the FSU BOT claimed the Conference treated the GOR and amended GOR as a confidential document and would not allow Florida State to have a copy of the agreements,” however, the ACC alleges that “Florida State retained an executed copy of the Grant of Rights and, in fact, provided it to the public.”
The ACC also alleges that in spite or “repeated warnings and the language of the ESPN Agreements, Florida State chose to deliberately and publicly disclose or authorized the disclosure of confidential information from the ESPN Agreements,” including at the Dec. 22 Board of Trustee meeting, where “FSU counsel discussed at length the future media rights to be paid under the ESPN Agreements.”
Background
July 2021: In July 2021, Texas and Oklahoma announced their intent to leave the Big 12 for the Southeastern Conference. The Grant of Rights used by the Big 12 is similar to that used by the ACC and the Pac-12 conferences and has been described as “impenetrable.”While Texas and Oklahoma announced their intent to leave the Big 12 they chose not to contest the GOR, instead deciding to wait until the GOR expired in 2024.
July 2022: UCLA and USC announced their intent to leave the Pac-12 by August 2023, which coincided with the termination of the Pac-12’s GOR. Washington and Oregon followed UCLA and USC to the Big 10, while six other Pac-12 schools also resigned from the Pac-12.
FSU’s situation differs from the Pac-12 or Big 12 schools in that the ACC contract is alleged to extend to 2036, with a buyout estimated at $570 million by FSU in their complaint.
August 2022: According to the ACC complaint, in August of 2022 FSU President Richard McCullough began to publicly discuss conference realignment. “It’s something I’m spending a lot of time on and getting a lot of help…” he told the BOT in a public meeting. “We’re trying to do anything we can to remain competitive. Florida State is expected to win. We’re going to be very aggressive.”
February 24, 2023: The FSU BOT openly discussed withdrawing from the ACC and the cost of withdrawal in order to move to another conference where the program would generate an additional $30 million to $40 million per year. In its amended complaint, the ACC sites these public discussions as a breach of contract.
It’s important to note that unlike other states, Florida’s Sunshine Law requires Board of Trustee meetings be held in the sunshine, meaning everything that needs to be discussed will be done so with the media and/or public present. The law further restricts two or more trustees from discussing a university related topic without public notice, so everything discussed among BOT members is in the public.
The FSU BOT members unequivocally said FSU’s sports teams will not be able to maintain comprehensive excellence against peers in the SEC or Big10 if it is forced to remain in the ACC until 2036 with the disparity between the ACC and the SEC media rights payouts growing from $7 million per year, per school to $30 million per school, per year starting in 2024. That disparity will grow to $40 million per year, per school with the multi-media rights agreement FOX negotiated with the Big Ten schools.
This is when FSU Athletic Director Michael Alford began advocating for unequal revenue sharing in the ACC arguing at the February BOT meeting that FSU attracted 15 percent of ACC viewership but was receiving 7.5 percent of the revenue (the equal share).
May 17, 2023: According to the ACC claim, “the Conference endorsed the concept of a larger share of post-season revenues to the Members that generated those revenues, rather than equally among all Members.”
After expressing initial satisfaction with the endorsement, the ACC claim states that Florida State immediately began advocating for an unequal share of all Conference revenue.
August 2, 2023: Still with no details from the ACC on what the post-season revenue award could be from the May meeting, FSU openly discussed what McCullough referred to as an existential crisis at the August 2, 2023 Board of Trustee meeting.
August 15, 2023: The deadline to announce an exit from the conference passes without FSU filing its intention to leave.
September 8, 2023: There was no discussion of leaving the ACC at the September Board of Trustees meeting but following the meeting, The Osceola asked Board of Trustees Chairman Peter Collins for an update. “There will be no more discussion on the matter until after the football season is over as we don’t want it to be a distraction to what could be a special season,” Collins said, adding, “But don’t take our silence as inactivity.”
The ACC office did not. In its amended filing on January 17, 2024, the ACC stated those BOT meetings led them to believe FSU was “scheming” to exit the conference.
It is likely that the Board of Trustee’s 38-page complaint against the ACC, filed on Dec. 22, is the activity Collins referred to on September 8th. Anticipating this day would eventually come from one member institution or the other, the ACC obviously began work on its extensive complaint filed against FSU some time before its December 21 filing.
What is a grant of rights? Why is it important?
The GOR is a document signed by the members of the conference which transfers ownership of media rights (home football and basketball game television revenues) from each member school to the conference in exchange for a promise from the conference to sell and maximize the value of those media rights. The ACC formulated this agreement in 2013 after Maryland bought its way out of the ACC to join the Big Ten. The teeth of these agreements is two-fold, a buyout clause of three times the operating revenue of the conference (approximately $130 million) with the bigger penalty being forfeiture of the school's media rights (home game television revenue) during the term of the contract, which ends in 2036.In other words, a school can choose to pay the exit fee of $130 million to leave the conference but the ACC retains the rights to that school’s home games until 2036, which makes the school less valuable to another conference and precludes a school from going independent.
Why did ACC schools sign the amended GOR?
This is a key question and one that is mentioned in the ACC’s complaint. According to the ACC, “As a condition for entering into the 2016 Multi-Media Agreement and the agreement establishing the ACCNetwork, the Amended Grant of Rights states, ‘ESPN has informed the conference that it will enter into the Prospective Agreements only if the Member Institutions agrees to amend the Original Grant Agreement to extend the term thereof (from June 30, 2027 to June 30, 2036).’ ”
In their filing, the ACC claims, “The Grant of rights was further necessary to provide content to the ACC Network for as long as the Network operated. Absent certainty as to the duration of the Grant of Rights, the ACC and ESPN could not establish the ACC Network, nor market it to cable providers. Consequently, the term of the Grant of Rights was extended to be coterminous with the life of the ACC Network under the Network Agreement.”
The ACC’s complaint argues that FSU has received consideration in support of the Grant Agreement. While the amounts are redacted in the complaint, the ACC claims FSU’s distribution from the ACC more than doubled over time.
While FSU repeatedly has claimed the College Football Playoff snub of FSU and the ACC had nothing to do with the timing of their filing, it is the lead sentence in the Overview section of the complaint. However, long before the playoff snub, back in August, the trustees were unanimous in their support to leave the conference — which trustee Justin Ross called for — before the August 15, 2023 deadline.
The Trustees did not exercise that risky option, instead seeking clarity first through this declaratory judgment action.
The parties have until Feb. 16 to respond.
