Judge in Clemson's case vs. ACC points to lack of venue clause in ESPN agreements (2024)

CLEMSON— The South Carolina judge presiding overClemson's lawsuit against the Atlantic Coast Conference says his court has a "strong interest" in adjudicating a dispute concerning the league's ESPN agreements.

And if the ACC wanted a North Carolina court to have sole authority to interpret the contract, Pickens County judge Perry H. Gravely wrote in an Aug. 6 opinion, the league should have included a forum selection clause in the deal.

"This Court will not, in effect, add such a provision to the parties' bargained-for agreements after the fact," Gravely wrote as he ruled against the ACC's motion to dismiss or stay Clemson's case in South Carolina.

A lack of a venue clause in the ESPN agreements, which could have specified which state's court handles disputes, currently has dueling lawsuits between Clemson and the ACC— and another pair between Florida State and the ACC— playing out in multiple states.

Both schools want to wiggle out of the ACC's grant of rights, in hopes of leaving the league before its deal with ESPN ends.FSU sued the ACC in December, and Clemson's suit followed in March.

Judge Louis A. Bledsoe IIIruled in early July that a North Carolina court has jurisdiction over Clemson, as it did FSU, in the league's countersuit in Mecklenburg County.

Gravely offered a verbal ruling from the bench on July 12, indicating he believed a South Carolina court also has jurisdiction in the dispute. His written opinion, provided nearly four weeks later, just fleshes out his reasoning.

The ACC argues its members"irrevocably" conveyed their broadcast rights to the league for the entirety of the ESPN deal, which could run until 2036. But when Gravely quoted the grant of rights, which says a university must "satisfy and perform" the obligations of a "member institution," he noted Clemson was required to provide access to its facilities for ESPN to broadcast games.

Gravely says the ESPN agreements "contemplate and were designed to generate performance in South Carolina."

"Clemson’s generation of that media content on its campus in South Carolina is the performance of Clemson’s obligations (for which the parties bargained) under the very contract at the center of this case: the GOR," Gravely wrote.

Clemson wants the South Carolina court to side with an arguablynovel reading of the ACC's grant of rights and its ESPN contract: That the ACC might "irrevocably" own the rights to games the Tigers play in the conference, but the ACC has no claim to future games played in another league.

The university points, specifically, to the definition of a "conference institution" in the ESPN deal, which uses the present-tense verb "is" and not "was." Clemson also cites the deal's composition clause, which allows ESPN to reassess the value of the league if and when schools leave the ACC.

Clemson's lawyers have argued there is a "cloud" hovering over the ESPN agreements, which must be clarified. But it might be a while before a judge in either North Carolina, South Carolina, or Florida offers an interpretation of the ESPN deal. Appeals will likely be heard on each judge's ruling on jurisdiction.

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Gravely disagreed with the ACC that Clemson's case should be heard in North Carolina, alongside FSU's, saying the two school's lawsuits are "not substantially identical." He did side with the ACC on one point: He would not offer Clemson a declaratory judgment saying it has "sovereign immunity" and can't be sued in another state.

He dismissed the sovereign immunity claim "without prejudice," meaning the university could argue the point later.

"It is a basic principle that while a court has the inherent power to determine its own jurisdiction, it cannot issue a binding order determining the jurisdiction of another State’s court," Gravely wrote. "Here the courts of North Carolina and South Carolina each have the inherent power to determine their own jurisdiction.

"But a South Carolina court does not have the power to direct a decision of a North Carolina court as to whether the North Carolina court has jurisdiction over Clemson or whether certain defenses may apply to the North Carolina action."

Clemson's sovereign immunity claim also failed in North Carolina, because the university entered into a contract with universities from multiple states for a commercial purpose.

On the other hand, the ACC's business stretches into South Carolina, as Gravely pointed out.

Gravely referenced a sworn affidavit from Clemson athletic director Graham Neff, which outlined how the ACC and ESPN utilize the Tigers' facilities. Clemson says it has invested $7 million in production facilities, which, as Gravely wrote, "generate media content for bundling by the ACC for sale to ESPN."

Neff's affidavit also included an email from an ACC official scolding Clemson for refusing to move its 2024 home game with South Carolina to a Friday despite "concessions" obtained from ESPN.

Along with asking the court to offer an interpretation of the ESPN agreements, Clemson has also sued the ACC for damages, alleging the conference "slandered" itstitle by pushing a false narrative about the ironclad nature of the grant of rights, "chilling" the university's ability to find another conference.

The university's request for damages, Gravely said, also gives a South Carolina court jurisdiction because it's a matter of tort law.

"Taking as true Clemson’s allegations and affidavits, and resolving any factual disputes in Clemson’s favor, as this Court must," Gravely said, "this Court finds that Clemson has established a prima facie case of personal jurisdiction over the ACC."