Legal Eagle here, coming at you with a scenario that is as true as it is bizarre… and legally fascinating. As always, I am not providing any legal advice – I do not practice law in this area and nothing written in this article should be construed as legal advice, nor should it be construed as forming any attorney-client relationship with anyone.
Imagine a unicorn – mythical and imaginary, only not. Unrealistic, not grounded in reality, but we all know what it is. In college football – this is Notre Dame. A school as arrogant as it is justified in remaining independent in a world that demands 4 conferences in the near future. Much less, a school that is “independent” BUT a part of the the ACC for basketball, and in the Big Ten for Hockey…..of course, I am talking about Notre Dame. And to be upfront, I am not a fan of Notre Dame, but respect their history and their place in college football. That place, however, is under attack.
Notre Dame is a unicorn, and it is as impressive as it is sad. The concept of someone “wanting their cake and eating it too” is basically what we have with Notre Dame. They want their independence from conference play, but be in the conference of their choosing, when they want to be. Hockey? Big Ten. Basketball? ACC. Football? Independent-ish, unless it is COVID – then the ACC. The connection between Notre Dame football and the ACC is interesting in that it was borne of basketball it seems, but forced upon the football program in 2020 by way of Notre Dame having to find a way to play amidst the madness of closing down the world for COVID.
According to John Swofford, the ACC Commissioner, the contract the ACC has with Notre Dame after the 2020 COVID inclusion of Notre Dame into the ACC for season play in the COVID year, there is a stipulation that if Notre Dame joins a conference before 2036, it must be the ACC. This contact would be ironclad and all encompassing in keeping Notre Dame on the hook to join the ACC, if any conference….or would it?
In terms of money, Notre Dame would actually make more money if they joined the Big Ten or the SEC, for example – likely around $40 million more per year by the end of the 2020s. The financial hardships to Notre Dame would be the money it would take to break this contract with the ACC. Notre Dame is locked into that contract with the ACC, via all of their media rights, until 2036. So, even though Notre Dame makes bank with their media contracts, their alumni and total program….and that bank would be MASSIVELY improved by joining the Big Ten or SEC, for example, it STILL would likely not be enough to pay out the separation agreement required to get out of the contract with the ACC by design.
The problem is, Notre Dame is private and not subject to being forced to disclose this contract, so it is speculation as to what the total would be that Notre Dame would have to pay.
So this puts forward two possibilities for Notre Dame to join a conference OTHER than the ACC:
- The pay the separation agreement rate as contracted with the ACC; or
2. There is a substantial change in circumstances (Frustration, Impossibility, Impractibility) within the ACC which would be massive enough to render the contract separation agreement susceptible to mitigation or attack.
Both these routes could result in a path for Notre Dame to get into the Big Ten, SEC, or any conference they wanted – other than the ACC. But it will cost, the question is just how much…
- Separation Agreement Paid
The ACC agreement in place for the league itself was executed in 2013. A copy of it can be found here:
What we do not know or have a copy of, is the agreement with the private school of Notre Dame. It is anticipated and speculated amongst most that the agreement has (as it should) a separation agreement that dictates how much money Notre Dame would have to pay if it decided to join a conference other than the ACC. Most say this would be in the neighborhood of $10 to $15 million, per game, through the length of the contract in 2036. As of this writing, that would be somewhere north of $150 to $200 million, and likely could be even more. That is a massive amount of money, even for a financial juggernaut like Notre dame. This strong hold explains why Notre Dame has not joined the Big Ten, the SEC, or the Big 12 already – in light of the expansion and changes that we have seen in conferences and playoffs in 2022. So….is there another way? Could there be a way by which Notre Dame could get out from this ACC contract? Possibly.
2. Substantial Change in Circumstances within the ACC – The Contract is Frustrated, Impossible, Impractical
The lawyers involved are smart, and they know how to draft contracts which take crazy scenarios into account. But there are some things even crafty lawyers cannot prevent. The contract the ACC an d Notre Dame are in are predicated upon the consideration and bargain of the agreement – that is to say – what is Notre Dame giving and getting, and what is the ACC giving and getting, in their relationship.
So – what could change the game so much that the contract would be subject to attack, or at a minimum, the separation agreement (the price tag) for Notre Dame to cut and run from the ACC? Well – what if the ACC was no longer the ACC Notre Dame agreed to join? If one school leaves, might not be a big deal by itself. But, let us say that FSU and Clemson leave the ACC and join the SEC. The ACC that Notre Dame contracted to possibly join would no longer exist, and therefore the money involved would not have been agreed to based on the realities of the present state of the ACC. Due to the lawyers and their ability to prevent total loss, this would not undo the contract all together – BUT – it I could render a legitimate and real way to attack the amount of money it would take to get out from the ACC’s hold.
With all of the changes lately, it is more than reasonable to think that FSU, Clemson, and / or Miami might be interested in leaving the ACC and go to the SEC. Think of it…Notre Dame agreed to join a conference, if any, that had marque games like Clemson and FSU….what if those were no longer viable and an option for ACC play? It is very possible that Notre Dame could be able to chip away at that fee they would owe and make it very, very payable – especially in light of the amount of money that would be involved with them joining either the Big Ten or the SEC. This would be a “frustration of the contract” to speak legally.
Under United States contract law, a “frustrated” contract is one that – through no fault of the party – cannot reasonably be performed because of unforeseeable circumstances. This is a defense to a breach of contract in the US. Say, if Notre Dame joined the Big Ten and didn’t perform its obligation to join the ACC, a breach of their contract.
This essentially is another way of saying there were a change in circumstances that were unforeseeable – a Force Majeure or an Act of God – something crazy – something not foreseeable at the time of the contract that makes performance of the contract impossible, impractical, or otherwise unreasonable. There is a lot to this – a lot of legal fighting. Take – for instance – the ACC losing many of its teams to another league…like, if FSU and Clemson left the ACC and went to the SEC. The ACC that Notre Dame contracted to be forced to join would no longer be same ACC….and this was caused by, arguably, COVID-19 and / or other worldly events that were not foreseeable. BUT, the contract Notre Dame signed locking them into 2036 was in part DUE to COVID-19, so it was foreseeable, again, arguably. Was it foreseeable the marque teams of FSU and Clemson could leave the ACC? Maybe, maybe not. It’s a crap shoot and no one knows how this would play out in Court (in my opinion).
The point is – there are several grounds upon which to attack Notre Dame’s contractually obligation to join the ACC given the changes in the world.
Given the history, it would be all but certain they would join the Big Ten. You don’t hear about those rivalry games between Notre Dame and Alabama…but the legends of Notre Dame vs. Michigan go back decades.
This brings in the human element. With that being a possibility – there could be closed door meetings going on, and alliances formed between Notre Dame and teams like FSU, Clemson, and / or Miami -where they all agree to take on the ACC together and for the ACC’s hand. In other words, it would be a mutiny of sorts, and the three leaders and their unicorn step child of Notre Dame could essentially crumble the ACC as being a conference all together.
Follow the money, see where it goes. Follow the money, and see how much is owed. Follow the money – and see where it grows. Notre Dame will not join the ACC. They will remain independent until they can join one of the contenders – Big Ten, SEC, or the Big 12. Count on it.
Legal Eagle, Out. Go Blue