Can Clemson actually win its lawsuit against ACC? What legal experts say

Irwin Kishner, co-chair of Herrick's Sports Law Group, was quoted in an article in The State that discussed challenges to a grant of rights agreement and exit fees in a recent suit brought by a university against an athletic conference. Specifically, the article discusses Clemson's suit against the Atlantic Coast Conference ("ACC") "taking aim at the ACC's grant of rights, a legal document that binds them to the conference through 2036."

With respect to the issue of where the case will be heard, Kishner noted that in his experience the issue of venue is “'usually settled pretty quickly up front' since most contracts specifically say (or make very clear) where any potential lawsuits should happen."

With respect to whether Clemson will be able sever the grant of rights, the article reports that Clemson made the distinction that it is not seeking to completely nullify the contract, only a declaration that “the media rights Clemson granted to the ACC did not include any Clemson games that are played after Clemson ceases to be a member of the ACC.” While a court can undo a contract, it's limited to "'extreme' cases of fraud and duress" or "substantive unconscionability." Kishner added that Clemson also "has a weak argument when it comes to 'procedural unconscionability,' another contract defense that focuses on the 'sophistication' of the parties at the time of signing." 

“You can make a credible argument that both sides were represented by very sophisticated legal advisors,” Kishner said. “You would’ve thought the issue would’ve been studied to a certain extent, right? Ultimately, I think it’s a tough battle to wage.”

In considering whether Clemson has a damages claim, Kishner stated “It’s a very fact-specific case, and you certainly can make a credible argument (in Clemson’s favor), which is: This is without a rational relationship to the damages one suffers, and therefore it is a penalty and is not valid.”

Kishner noted that he usually refrains from predicting who will win a case since "every case in his field of sports media law is unique and fact-specific. In an initial review of the Clemson vs. ACC case, though, he said it’s a bit of a 'coin flip.' If he had to pick a side? It’s the ACC. 'I think my emotion says: ‘You did sign a deal, and you did have sophisticated parties,’ Kishner said of Clemson. 'Now, were you duped? Were you misled during the process? If there’s evidence of that, I’d feel differently.'"

Read the full article in The State here. Access may require a subscription.