The college football vernacular is about to expand even more. An aberrant year that has spawned daily speculation about COVID-19 and curves and quarantines is about to toss us two more fresh words.
May as well learn to pronounce it now (fors ma-ZHER), because you likely will be hearing it a lot in coming weeks.
Google offers the most clear and concise definition: unforeseeable circumstances that prevent someone from fulfilling a contract. In college football, it’s a staple of virtually every game deal brokered.
“It’s in every contract, and nobody’s ever paid any attention to it until (now),” said Peter Carfagna, former chief legal officer and general counsel for International Management Group (IMG). “It’s boilerplate.”
At least it was boilerplate. As more games are called off due to the COVID-19 crisis, its interpretations could be deliberated from Corvallis to Coral Gables as programs seek monetary damages for lost revenue.
“All of these contracts are going to have, if not a force majeure clause specifically, they’re gonna have an impossibility clause, they may have a cancellation clause,” said Dr. Anita Moorman, a professor of sport administration at the University of Louisville.
“But the vast majority just call it force majeure, usually one of the last two or three sentences of a contract. And the wording’s really all over the landscape.”
Consider the contract for USF’s Sept. 5 game at Texas. Its force majeure clause indicates neither party shall be considered in default of the agreement if it fails to appear due to an “act of God, national disaster, national emergency, labor disputes, war, order of a state or federal court, or similar events beyond the control of the party that fails to appear.”
Though “global pandemic” isn’t specifically included in the clause, a judge presumably would categorize COVID-19 as a “national disaster,” “national emergency” or even “act of God,” if either the Bulls or Longhorns opted not to play. As a result, the team that backed out almost certainly would be freed from any financial liability for not playing.
But suppose the Big 12 follows the lead of the Big Ten and Pac-12 and opts for a conference-only schedule in 2020. How could Texas rightfully claim force majeure for missing the USF contest, then turn around and play nine or 10 league games?
“That claim’s gonna be a lot harder for them, depending upon what their contract says,” Moorman said.
Moorman, who sifts through assorted game contracts from across the country, noted the 2022 Hawaii-Michigan deal specifically includes language regarding any rule and regulation of their governing conference.
“Now they’re not scheduled to play until 2022,” Moorman said. “But assuming that contract may be similar to one of (UM’s) current contracts ... if the conference said, ‘We prohibit you from playing outside the conference during 2020,’ Michigan would have an argument that that fell under the force majeure.”
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But the contract for Indiana’s 2018 season opener at FIU (a 38-28 Hoosiers triumph) didn’t include such language, Moorman noted.
“So it’s really gonna come down to whether the conference is included literally in their force majeure clause,” she said.
Carfagna, who directs the sports law program in the Entertainment, Arts and Sports Law program (EASL) at the University of Miami law school, concurs. As an example, he cites Bowling Green, which was set to make $2 million for its Sept. 5 opener at Ohio State, before the Big Ten canceled non-conference play.
“‘Well, the Big Ten won’t let us play.' Well, does your clause cover that? Really?” Carfagna said. “The best clause would be, ‘civil authorities prevent it from being played, and we have no choice’ as a classic force majeure.”
Experts agree the unprecedented developments of 2020 will prompt future game contracts to include far more specific, sprawling force majeure clauses, with language defining circumstances that make it both impossible (i.e. natural disasters) and impracticable (i.e. no fans permitted in stands) to stage a contest.
But that doesn’t resolve this year’s mess.
With myriad cancellations likely, particularly involving Power Five teams against non-conference opposition, look for financial settlements to be sought in lieu of extensive, costly litigation.
“This is all so speculative right now because the SEC has not made any kind of decision (to cancel non-league games),” Florida athletic director Scott Stricklin said last week.
“I don’t like to speculate, but if you were going to speculate down that path you would certainly have to consider what’s in those contracts and how you separate yourselves from those contracts in a way that’s legal.”
Fortunately for Stricklin, his school’s game contracts typically have featured detailed language. Case in point: Its force majeure clause in its three-game deal with USF, which relieves the Gators of any obligations if prohibitive action is taken by the Southeastern Conference or NCAA.
Force majeure “is a what-if clause,” Carfagna said. “And people are starting to draft a little more carefully in any sport, including contract clauses in collegiate sports.”