Can Gamecocks get out of millions in damages for canceled games? The answer is tricky
The wording of South Carolina football’s game contracts just became very important.
Soon after the ACC shifted to a shorter, more conference-heavy football schedule in response to the coronavirus pandemic, the SEC made its change and erased the non-conference season, going with just 10 conference games.
That would notably leave Wofford, East Carolina and Coastal Carolina looking for new games on their schedules and without a crucial expected pay day from the Gamecocks. Looking at the contracts, the “force majeure clause,” which would allow both parties to walk away from their obligations, includes language about an act or declaration from governing bodies, including the SEC, that make it impossible or impractical to play the game.
On first read, this might sound like a get-out-of-jail free card for South Carolina’s athletic department when it comes to millions of dollars in scheduled payouts. But according to Louisville professor of sports administration Anita Moorman, that’s not an easy out.
“The question is, what’s caused the impossibility?” Moorman said. “Now the impracticability standards are elusive, so that’s a good thing. But the question still comes up: Is it truly impossible to play the game with these non-conference participants when it’s possible to play with conference participants?”
She made the point that the principle possibility is the key. In other words, if something can be done to uphold the contract, it should be done.
The Clemson game contract is a little different because the schools don’t pay each other for the games. There is, however, a cancellation cost of $1 million.
Moorman has reviewed a number of schools’ game contracts and noted two somewhat unusual things about South Carolina’s.
The first is that mention of declarations from conferences and the NCAA. Most game contracts don’t have that. Force majeure often covers acts of God and natural disasters, but most don’t include pandemics in the list of reasons.
But the South Carolina contracts also do not include those force majeure cancellations in their liquidated damages for cancellations. That opens the door for a canceling party, in this case South Carolina, to still be on the hook for liquidated damages, even if the game is canceled by SEC declaration.
There is no clear answer because it depends which part of the contract takes precedence. With the way the language is structured, that’s open to interpretation.
“The question is going to be which of those two clauses is going to be controlling in that event?” Moorman said, noting usually the force majeure absolves the cancellation damage. “Normally from a drafting perspective, the way you make sure that’s what happens within your cancellation clause is you specifically say, ‘If we cancel because of a force majeure, we don’t pay.’ And they didn’t say that. So, one could come in and argue, while this excuses your failure to appear that it doesn’t excuse your payment of liquidated damages.”
Much of it would come down to which side a court agrees with, were it in fact taken to court. The combined cost of liquidated damages for the three games is $3 million.
But there’s a significant chance none of that will come into play. The ECU contract still has one more game. There is a 2022 game with Wofford on the schedule and Coastal will likely be a non-conference opponent for USC in the future.
In a world built on relationships, a contentious legal situation can make things complicated down the road. Both sides tend to benefit from these games, so things could, in the end, be solved by negotiation rather than litigation.
“They’re probably not going to want to risk a future payout of a million-plus to take a shot at litigation,” Moorman said, “when we really don’t know how the courts are going to interpret some of these clauses, and how generally this pandemic is going to be perceived as a force majeure type of event that truly has rendered performance impossible or impractical.”
South Carolina athletic director Ray Tanner spoke Friday an expressed a desire to reschedule those football games against East Carolina, Wofford and Coastal Carolina.
“We want to reschedule the games as soon as we possibly can and maintain the relationships that we’ve had,” Tanner said.
Gamecocks and non-conference contracts
South Carolina non-conference game payouts for 2020 (and liquidated damages for cancellation)
East Carolina, $300,000 ($1 million)
Coastal Carolina, $1.4 million ($1.5 million)
Wofford, $350,000 ($500,000)
Clemson, none ($1 million)
This story was originally published July 31, 2020 at 5:01 AM.
