[Husker] Reflections on the Big Move

[Dick Karre]

STUART JONES wrote:
> 3. Do I recall correctly that Harvey P has roots in the Law Department? It
> certainly seemed to me that he was being an excellent advocate and not
> conceding anything in the area of what penalty should be paid by NU for
> early withdrawal. That sounded to me like an early opening argument: Don't
> try to get too much from us because we have arguments that can be made in
> court.
>
>   
And one of those arguments will be to label it a "penalty." In most (if 
not all) states penalty clauses in contracts are unlawful and 
unenforceable. If you wade through the Big 12 bylaws (essentially a 
contract), you find that it calls for "liquidated damages" in the event 
a school breaches the agreement by leaving. The theory of liquidated 
damages is that the parties know there will be damages in the event of a 
breach, but it would be difficult and expensive to determine them. 
Therefore, the parties pretend to determine those in advance and make 
them a part of the contract. (You might reasonably ask how that differs 
from a penalty; I might reasonably answer: it doesn't, but it makes for 
more lawyer fees.) So, by labeling it a "penalty", Perlman is 
foreshadowing a possible argument for N U, though it seems dubious.

If the BTS goes ahead with its Pac 10 shuffle, NU will likely also argue 
that the conference has disbanded so that no one owes anyone anything. 
That might be a better argument, particularly if some or all of the 
orphans go into the MWC or somewhere else. But NU's timing could come 
back to bite them: if the Pac 10 and MWC (or whatever) moves aren't 
effective until 2012, the eleven schools remaining in the conference as 
of July 1, 2011, will ague that the Big 12 was still alive when NU left, 
so it owes them damages (80% of TV revenue for 2010, if I read the thing 
correctly). NU might have a pretty good chance on this one.

Once the moves have all been announced, I wouldn't be surprised to see 
NU file a lawsuit to try to set aside the "penalities."

-- 
Dick Karre
dkarre at comcast.net