Force Majeure Clause Strikes the Vandals

This past weekend, the University of Florida Gators were to take on the University of Idaho Vandals in a NCAA Division I Football Game.  Unfortunately, the game was delayed by severe weather.  Then, shortly after the opening kickoff, the game was suspended indefinitely due to the return of that severe weather.  And now it appears as though the game will never resume or be re-scheduled.  Big whoop, you say?  Well, the Vandals feel a little different – because they not only lost out on a $975,000.00 guaranteed contract, but also expended upwards of $200,000.00 in anticipation of that contract.  And now the Gators may get off scotfree without having to "honor" the guaranteed contract or pay for the Vandals' expenses.  And all because of the beautiful, miscellaneous clause called "force majeure".

For those disinterested in collegiate football and contract law, your head may be spinning in two separate directions at the same time.  You are likely puzzled first by the use of guaranteed contracts in collegiate football (I thought that college players were amateurs?).  Then, you probably do not even know how to pronounce, force majeure (Is that like a more formal "bonjour")?  In the words of DJ Lance Rock, let's break it down.

Non-Conference NCAA Football Games

The guaranteed contract at stake here has nothing to do with the amateurs actually playing the football game.  Rather, the big money contract is between the two universities – University of Florida and University of Idaho.  Given the recent court ruling and public debates, this really should not surprise you – collegiate athletics are big money, none of which is shared with the student-athletes beyond a colleage education that is becoming less and less valuable every second.  However, that is another blog post.  

Rather, the University of Florida was guaranteeeing the University of Idaho a payout of $975,000.00 if they agreed to play a football game at the University of Florida.  I thought the University of Florida played in the Southeastern Conference (SEC), you ask.  Why did they not just play a SEC team?  Well, this contest was a non-conference home game for the Gators.  Unlike conference games, which are set and scheduled by the conferences within which each University or College plays its football games, non-conference games are scheduled by the teams themselves.  

And as of the past two decades, non-conference games have become a way for football powerhouses – like the Gators – to schedule football cupcakes.  Especially early in the season.  The mentality is that this will ensure an easy, crowd-pleasing win, lots of scoring, and building up confidence for a team as they press on, into their more difficult, contested games.  However, the win counts just the same in the final standings – for bowl game (and now playoff purposes).

Most importantly, it brings in more money.  Money in the form of game tickets, in-game advertising – both at the stadium and on TV, radio, and the Internet, and in-game concessions.  The game is also a chance to draw back alumni who, feeling nostalgic, will feel the need to open their wallets up and donate money to the University.  It will also serve as a draw for more student applicants – who want to be able to attend a good football school – as well as recruits for next year's football team, or other team or individual sports.  All in all, a home football game is a huge cash cow for the home University.

As mentioned above, the visiting Universities – typically, cupcakes – caught wise to the above scheme.  And instead of being the proverbial sacrificial lamb for the football powerhouses' celebrations, they started to decline these invitations to pay.  Rather, they wanted a cut of some of the loot!  Some of the visiting Universities over the past decade have used the loot to reinvest into their own program and become a mini-powerhouse themselves.  So, the amount needed to pay to get someone to play has become more and more expensive and resulted in more and more perks.  Hence, the guaranteed $975,000.00 pay day that the University of Idaho Vandals were contracted to rake-in due to their appearance this past weekend.

Force Majeure Event

However, that was before the deluge and lightning storm took place.  As a result of that storm, the game was, as reported above, suspended indefinitely.  And if the game is cancelled or vacated, it will be as if the game never took place, in the contract.  And as a result, the University of Florida will not have to pay the University of Idaho.

How, you ask?  Well, that is because in most NCAA guaranteed athletic events, the underlying contract includes a "force majeure clause".  Force majeure (pronounced FORS mah-ZHUR) clauses are common in almost any contract.  They are sometimes called an "Act of God" clause.  That is because it is designed to nullify the contract or liabilities in the event the contract cannot be completed due to an unforeseeable event or circumstances outside of the control of the parties.  Here, the contract between the Gators and Vandals had such a clause:

Neither party shall be considered in default of this agreement for failure of its football team to appear and participate in the above games for reasons due to acts to Gods, national disaster, national emergency, labor disputes, or orders of a state or federal court or authority or prohibitory or injunctive orders of any competent judicial authority, government, governing association of which both parties are members, or other similar events beyond control of any party.

Legally, it appears the Gators can walk away from the agreement and not pay the Vandals the $975,000.00 they were expecting.  In addition, Idaho will actually lose money.  That is because the travel costs associated with taking its players, coaches, administration, band, fans, and select alumni was going to come out of that guaranteed pay-day.  The costs could approach $200,000.00.

Some are now pressuring the Gators to disregard the force majeure clause in the agreement.  My response would be, they put it in there for a reason.