The responses to the AG records complaint (mandamus) were filed late last night. There are briefs from the ACC, from the ESPN entities, and from an "amicus" group made up of the B12, SEC, and B1G. It is clear that FSU is fighting the world here. I suspected that we may see the whole world oppose us. Anyway, I have gotten through the ACC response.
First, I may have been wrong when I said jurisdiction should not be an issue now that FSU has alleged more in the main case. The ACC attacks jurisdiction hard here, so hard I expect it to be raised in the motion to dismiss before Judge Cooper. I think they will lose this issue, but in raising it they have built in more delay for the records case. Now Judge Dempsey has to decide that first, and if she decides there is jurisdiction we can be expected to see an immediate appeal and motion to stay the records case.
Second, I don't like how it's all tied to the litigation itself. The AG surely is doing this related to the lawsuit, but that is not the predicate. These would be public whether that lawsuit exists or not.
Third, I think they totally underplay the key case here, NCAA v. AP. That is the case I relied on in asking back in 2015, but it appears I would not have been right because the ACC says in fn9 that FSU/its reps/its lawyers ever reviewed the previous agreements. In any event, the ACC tries to brush off the NCAA case by relying on a comment the court made that simply does not apply here. In short, the court there said that any time the state or its reps receives a document for use in official business, it becomes a public record. The court did acknowledge that "merely seeing" it is not enough, using the example of an employee who somehow had password access to see confidential records but was not supposed to still accessing them. The court agreed that should not create public records (it is irrational for some other reasons, but I digress). However, that is not the same here. The ACC absolutely allowed FSU to access the records. It argues that since the deals were already in place, these were not used "for business." I think they are wrong. FSU was accessing them to review to determine its obligations and to decide what to do. How does it get more business than that?
My final thought is really not a records thought. The ACC talks more about "the relationship" in its intro and jurisdiction arguments. It uses broad language that I think is directly contrary to the GoR in suggesting simply that the schools "transferred all their media rights to the ACC through June 30, 2027." It totally omits the qualifying language of the actual GOR. It then says that the ACC transferred SOME of those rights to ESPN for the deal. It applies the same logic to the extension signed in 2016.
This is the first time I feel somewhat confident that the ESPN deal will contain NOTHING useful for the ACC or ESPN and that it is going to be really, really hard for them keep the FSU rights tangled up if it leaves. The ACC needs a hook in the media deal or it is going to fall on its face. We have to get this thing before the court on the merits. And soon. I think the problems we are now seeing may be real will be recognized by a judge in any state. I still want to see the terms, but I can't ignore the ACC lawyers keep saying things about the contracts that are very contrary to what has been suggested.
First, I may have been wrong when I said jurisdiction should not be an issue now that FSU has alleged more in the main case. The ACC attacks jurisdiction hard here, so hard I expect it to be raised in the motion to dismiss before Judge Cooper. I think they will lose this issue, but in raising it they have built in more delay for the records case. Now Judge Dempsey has to decide that first, and if she decides there is jurisdiction we can be expected to see an immediate appeal and motion to stay the records case.
Second, I don't like how it's all tied to the litigation itself. The AG surely is doing this related to the lawsuit, but that is not the predicate. These would be public whether that lawsuit exists or not.
Third, I think they totally underplay the key case here, NCAA v. AP. That is the case I relied on in asking back in 2015, but it appears I would not have been right because the ACC says in fn9 that FSU/its reps/its lawyers ever reviewed the previous agreements. In any event, the ACC tries to brush off the NCAA case by relying on a comment the court made that simply does not apply here. In short, the court there said that any time the state or its reps receives a document for use in official business, it becomes a public record. The court did acknowledge that "merely seeing" it is not enough, using the example of an employee who somehow had password access to see confidential records but was not supposed to still accessing them. The court agreed that should not create public records (it is irrational for some other reasons, but I digress). However, that is not the same here. The ACC absolutely allowed FSU to access the records. It argues that since the deals were already in place, these were not used "for business." I think they are wrong. FSU was accessing them to review to determine its obligations and to decide what to do. How does it get more business than that?
My final thought is really not a records thought. The ACC talks more about "the relationship" in its intro and jurisdiction arguments. It uses broad language that I think is directly contrary to the GoR in suggesting simply that the schools "transferred all their media rights to the ACC through June 30, 2027." It totally omits the qualifying language of the actual GOR. It then says that the ACC transferred SOME of those rights to ESPN for the deal. It applies the same logic to the extension signed in 2016.
This is the first time I feel somewhat confident that the ESPN deal will contain NOTHING useful for the ACC or ESPN and that it is going to be really, really hard for them keep the FSU rights tangled up if it leaves. The ACC needs a hook in the media deal or it is going to fall on its face. We have to get this thing before the court on the merits. And soon. I think the problems we are now seeing may be real will be recognized by a judge in any state. I still want to see the terms, but I can't ignore the ACC lawyers keep saying things about the contracts that are very contrary to what has been suggested.
