Clemson pushes to speed up ACC case, citing recently obtained ESPN deal (2024)

CLEMSON — Clemson filed a motion this week to potentially speed up its court case against the Atlantic Coast Conference.

In a motion for summary judgement entered on May 30 in Pickens County, Clemson's lawyers asked the court to set a hearing on or before July 12.

The university is asking for a declaration that the ACC only owns its broadcast rights for games played while the Tigers are in the ACC, and that granting the league Clemson's rights for the entirety of the ESPN deal — which could run until 2036 — is not "necessary" for the ACC to fulfill its obligations in the contract.

The ACC has argued Clemson would owe the conference a $140 million exit penalty, along with forfeiting future media rights, if it left the league early.

That July hearing date could have significance, because ACC schools have until Aug. 15 to notify the conference of an intention to leave, if a school wants to play in another conference starting the next academic year. If the court ruled in Clemson's favor, it would improve Clemson's position ahead of that date.

At the same time, it's not clear if Clemson intends to make a move that quickly, or if this motion for summary judgement even has a chance of succeeding. Plus, Clemson would need another conference to extend an offer to leave the ACC.

A bigger development might be pieces of the ACC-ESPN contract — of which the university only recently acquired a copy via a court order — that are being cited in court filings.

Sections in Clemson's motion that include references to the ESPN agreements are heavily redacted, though, and the contracts themselves were submitted, under seal, as an exhibit.

The ACC-ESPN deal has been hidden from public view because it could contain "trade secrets" and courts in Florida and South Carolina have allowed it to remain confidential. Prior to Florida State and Clemson's legal disputes with the conference, universities were purported to not have a copy of the deal — and could only view it by visiting the ACC's headquarters in Charlotte.

The state attorney general in Florida has challenged the contract's confidentiality, believing it's a public record, but the Big Ten, SEC, and Big 12 have all come to the ACC's defense in asking the court to keep the document private because disclosure could be damaging to conferences and their television partners.

The Post and Courier sought a copy of the ACC-ESPN deal from Clemson via a Freedom of Information Act request, but, in a response on May 31, the university declined to produce the contract, citing a May 2 confidentiality order from Pickens County judge Perry H. Gravely.

In Clemson's latest motion, the university alleges that reading the ACC's grant of rights and the ESPN contract together "shows that the only rights Clemson conveyed to the ACC were the rights to produce and distribute certain games played while Clemson is a member of the ACC."

The motion also contends that Clemson only granted the ACC the rights "necessary" to perform its contractual obligations set forth in the ESPN Agreement, which, the filing says, "does not include games played by a former member — that is, games played if and when Clemson ceases to be a member."

This continues an argument between the ACC and Clemson about the meaning of the "regardless" clause in the grant of rights, which says the ACC owns member schools' broadcast rights "regardless of whether such Member Institution remains a member of the Conference during the entirety of the term."

Again, it's difficult to know what the text in the ESPN contract specifies about Clemson's obligations — or if Clemson is even named as a party, not the ACC — because only the judge and the universities involved in this legal dispute can read the redacted portions of Clemson's filings.

"In the ESPN Agreements, the ACC granted ESPN certain media rights. More specifically," a section reads, followed by two and a half pages of text that are almost entirely blacked out.

There is a section titled "THE RIGHTS TO GAMES PLAYED BY CLEMSON AFTER IT LEAVES THE ACC ARE NOT 'NECESSARY' TO THE ACC'S PERFORMANCE UNDER THE ESPN AGREEMENTS BECAUSE," and then two more lines are redacted.

The filing also includes case law about topics as granular as tense usage, saying "the present tense generally does not include the past." This comes immediately after a redacted portion, presumably about the conference's media agreements, and Clemson's obligations when it is — past tense — no longer an ACC member.

Clemson's argument goes on to say the ACC's reading of the "regardless" clause, which is that the conference irrevocably owns members' broadcast rights through 2036, would lead to "absurd" outcomes.

"It would either render the phrase 'necessary for the Conference to perform the contractual obligations of the Conference expressly set forth in the ESPN Agreement' completely meaningless," the filing reads, "or worse, distort its meaning entirely thereby violating the basic principles that all words in a contract must be given meaning and interpreted in their plain and ordinary sense."