Several schools in the Atlantic Coast Conference (seven or eight depending on who you ask) have been dissatisfied with their status in the league, including Clemson Football.
The contract preventing most of them from taking action is the Grant of Rights, which gives the league the rights to their television properties, namely their home games. If a team were to leave, all revenue from their home games would revert to the ACC, not the school.
It would be possible for a institution to negotiate an exit from the GOR, but it would be expensive. The current GOR does not expire until 2036.
Thus far the only possible way anyone has suggested the GOR could be successfully broken has been for enough teams to vote to dissolve the league, which is a measure that likely doesn’t have enough support, assuming it was possible.
An idea that has been floated recently might be a possible way for a school to exit the GOR without being sued for breach of contract, and the precedent is the termination of the late Mike Leach by Texas Tech University.
Interestingly, the ACC Grant of Rights Agreement does not contain a “choice of law” provision. Assuming Florida law would apply to a dispute with FSU, the Florida legislature could arguably do what Texas did to Mike Leach and make FSU immune from liability for breach of contract. https://t.co/rQsDBcXXyg pic.twitter.com/HYwzxY614W
— Tom Mars (@TomMarsLaw) August 4, 2023
The ‘choice of law’ provision is:
"“…provision in a contract allows the parties to agree that a particular state’s laws will be used to interpret the agreement, even if they live in (or the agreement is signed in) a different state.”"
If any lawsuits filed by the ACC against a school who breaks the GOR are to be adjudicated in the school’s state, and they are a state institution, the school can claim sovereign immunity.
"“The sovereign immunity refers to the fact that the government cannot be sued without its consent.”"
If the state government so chooses, they can extend the rights of sovereign immunity to the institution in question, preventing the ACC from suing the school for breaking the GOR.
Texas Tech received this immunity from lawsuit by Leach when he felt the school still owed him money following the termination of his contract.
Sovereign immunity is a huge issue that isn’t discussed much when considering whether conference GOR agreements are enforceable.
— Mit Winter (@WinterSportsLaw) August 4, 2023
As state entities, public universities enjoy the protection of state sovereign immunity laws.
Makes enforcement of GORs tricky and expensive. https://t.co/TZfe8jRiAC
If Clemson Football has the support of the South Carolina government, it could claim sovereign immunity against lawsuits from the ACC
The caveat here is that the state government must support the institution to prevent the lawsuits due to immunity. The state has the right to allow a lawsuit if it so chooses.
Support in a state government would be something a school likely needs to confirm before taking action to break a GOR, but if it exists, this seems to be a real way it can be done.
State government support aside, this seems very easy and simple. The fact that no school has attempted to leave the ACC yet would indicate it probably isn’t that clean. Since we are not lawyers, it is difficult to know what other pitfalls might exist that would make an attempt to exit the GOR with sovereign immunity costly for a university if it doesn’t work out.
The deadline for a school to leave the ACC for the 2024 season is August 15th, so if anyone is going to give this a try this year, we will learn soon.