FARGO — The last few months in college football have been littered with terms never before heard in athletic departments since Yale dominated the landscape in the 1890s. Pandemics have come and gone in America in the last 100-plus years, but games contracts were most likely never a part of them.
Now they are.
Last week, the Big Ten and Pac-12 conferences announcing they are going to league games only were followed by two popular words on social media: force majeure. That’s the wording in contracts that is apparently allowing Power Five schools to get out of their guarantees with Group of Five and FCS programs.
That may include North Dakota State, which was slated to get $650,000 from Oregon for the Sept. 5 opener that is now canceled. The force majeure clause in the NDSU-Oregon contract states “A game shall be canceled if it becomes impossible to play the game by reason of bad weather, an unforeseen catastrophe or disaster such as fire, flood, earthquake, terrorist act or act of political sabotage, war, or confiscation; any order of government, military or public authority; or any prohibitory or injunctive order of any competent judicial or other governmental authority, civil or military. In such case, neither party shall not be deemed a breach of this Contract.”
NDSU athletic director Matt Larsen said last Friday, when asked about that clause, the school is “still working through all of those things.” Larsen said NDSU would be open to rescheduling.
In theory, would NDSU be open to bringing litigation into the matter? James Crepea, who covers the Ducks for the The Oregonian newspaper and OregonLive.com in Portland, Ore., tweeted “expect mass lawsuits over force majeure if P5 still play conference games in the fall.”
If NDSU did go that route, Chris Kennelly of Kennelly Business Law in Fargo, said there could be scenarios in proving inconsistency with the “catastrophe” wording of the contract. For instance, why would the COVID-19 pandemic be a catastrophe on Sept. 5 and not three weeks later if Oregon plays league-games only?
“It’s almost like cancel all the games or cancel none of the games, which of course none of us want to see all the games canceled,” Kennelly said. “But it is a little inconsistent to say on Sept. 5 we need to isolate the team but (later in September) we don’t.”
That stated, Kennelly said, there is a reality to litigation in the matter. There could be consequences if an FCS school wants to play hard ball and go after the full amount of the guarantee.
“I’m assuming if you’re an FCS team that is on record as suing a Power Five school to enforce your contract that you would probably get black balled pretty quick,” he said.
NDSU has had enough difficulty in finding FBS games the way it is. The Oregon matchup would have been the first since the 2016 win at Iowa. Before that, it was Iowa State in 2014.
Kennelly said he found it interesting that only the NBA has the word “epidemic” in its force majeure clause in contracts.
“Everyone else is trying to use the broader meaning of it,” he said.
It could be tough to argue against the word “catastrophe,” Kennelly said. Defined in law literature, it is “incomprehensible loss and damage to assets having immense consequences.”
“My overall opinion is that it almost feels like course in dealings ends up dictating what’s happening here,” Kennelly said. “That the current situation is overtaking the reality of what’s going on and that conferences have decided to go to a conference-only schedule. They’re saying the catastrophe has made it so they cannot play. But, again, how consistent is that when they’re playing two weeks later? Is that going to be based on any scientific data? Is that going to be based on any sort of health-related statistics? Or is it simply, it’s a conference game and it’s OK to play.”