[Husker] Reflections on the Big Move

[Gary Doyle]

Does the fact we were given a deadline for conference support play into this as well?  In essence, can it be argued that we felt we were being asked to leave rather than us leaving on our own accord?



________________________________
From: Dick Karre <dkarre at comcast.net>
Cc: husker at tssi.com
Sent: Mon, June 14, 2010 11:43:42 AM
Subject: Re: [Husker] Reflections on the Big Move

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


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