Home -> Law Blog Directory -> Miscellaneous Blogs -> Begging the Question

Miscellaneous

: Begging the Question

Creative Defenses in Contract Litigation

By "Milbarge" and "Fitz-Hume"

The sports fans among you may have seen the story about the University of Louisville suing Duke University (dear alma mater) over football games that weren't played. In short, the two schools signed a contract to play a series of four games, but Duke backed out after one (a 40-3 pasting at the hands of the Cardinals, if I recall). The contract specified that Duke would owe damages if UL could not reschedule against a "team of similar stature."

The punch line is that Duke football is currently one of the worst teams in the nation. Its record over the last five years is 6-45. It has had something like two winning seasons in the last twenty. So Duke argued in court that essentially any team would qualify as a "team of similar stature." The (Kentucky) judge agreed. And thus commenced much ridicule, along the lines of "Duke admits it sucks" and "'Duke Sucks' Enshrined Into Law." See here and here and here and here for commentary, and the ACC Nation podcast for this week includes an extended rant as well.

A few thoughts. First, for the record, the judge agreed with Duke that any team would be "of similar stature" in 2007 and 2008, but said that the claim for 2009 is "unripe." In plain English, that means he can't decide yet because the facts aren't in. So in other words, it leaves open the possibility that Duke football could improve enough by 2009 that there could be a team or teams of similar stature in college football. So, the rule is that Duke may suck now, but it's not the law that they always have to suck.

The other problem for Louisville is that the contract did not define the necessary "stature." If the contract had specified that the substitute had to be, say, a team in a BCS conference, Louisville would have a better case (assuming it couldn't find another BCS team to play). Because the only "stature" required by the contract was apparently "has an existing football team," the only way for Louisville to win is for it to prove it couldn't find anyone to play.

It sounds like Louisville was trying to have it both ways -- trying to buy a win over a patsy but then saying that the whipping boy is so awesome that it's irreplaceable. That sounds like the Lou Holtz School of Poor-mouthing: "There's no team in college football as good as Duke!" Which argument is more ridiculous, Duke's case that it's team is bad now, or Louisville's that Duke is the best team it could find?

Full post as published by Begging the Question on June 27, 2008 (boomark / email).