ACC and Clemson fight over court venue. Is there a 'home court advantage?' By Jon Blau 4 hrs ago CLEMSON — Clemson and the Atlantic Coast Conference are arguing about broadcast rights to sporting events, so it seems fitting to say the opening round of their legal fight is all about "home court" advantage.
The ACC wants its case heard in North Carolina, which is where school presidents would have signed the conference's grant of rights agreement.
Clemson wants its case heard in South Carolina, where it filed a lawsuit in search of loopholes in the ACC-ESPN agreements that could lead to an early exit.
Each side's attorneys have volleyed back and forth in legal filings about sovereign immunity and personal jurisdiction. They are slated to verbally spar in Pickens (S.C.) and Mecklenburg (N.C.) counties in July to try and dismiss each other's cases. There is a legal "win" to be had, and they're vying for it.
But really, truly, how much of a difference could there be between a courtroom in one Carolina as opposed to the other?
"It matters a whole lot less than people think it does," said David McKenzie, an intellectual property lawyer in North Carolina with decades of experience. "You have a contract that’s in black and white and a judge in Pickens that can evaluate that and interpret that as well as a judge in Charlotte."
In the end, this chapter in the legal process might be much ado about nothing.
This isn't a murder case where a jury pool is better in one county or another, because there is no jury. This isn't a situation where the laws in South Carolina or North Carolina make it especially easy to wiggle out of a contract.
That it's taken three months for arguments over venue to reach a courtroom, with a hearing slated for July 2 in Charlotte, is just a demonstration of the mud crawl of litigation.
That each side wants the case closer to home — because it could feasibly, maybe, possibly create an advantage — is just standard procedure.
With tens and possibly hundreds of millions of dollars at stake, it's worth a try.
"You’re supposed to have an impartial judge, you’re supposed to have an impartial jury, and you’re supposed to have an impartial jurisprudence," said Irwin Kishner, a corporate attorney and affiliate member of the sports law committee of the New York City Bar Association.
"That said judges, the judicial system is made up of human beings, and human beings have proclivities and what I’ll call innate biases."
Reasons to argue Clemson and the ACC can hope for name recognition in counties where they reside. Lawyers could benefit from familiarity with certain judges. They might like how precedents in state case law line up with their overall legal strategy.
Where to argue a case is just part of a "privileged analysis" lawyers provide clients, Greenville-based intellectual property attorney Wes Few said.
"Undoubtedly, both sides are going to have very sophisticated lawyers on a dispute of this magnitude. If they don’t, then God help them," Few said. "Each side wants it to be heard where they want it to be heard. They have their reasons. It could be a multitude of reasons. It might be a balancing of reasons.”
That said, Few considers Judge Perry H. Gravely, who is handling the case in Pickens County, a "middle-of-the-road guy." He isn't exactly a Clemson partisan, either. Gravely holds degrees from Wofford and South Carolina.
The judge in Charlotte, Louis Bledsoe, graduated from UNC in Chapel Hill.
And it's likely Gravely and Bledsoe will be just the first pair of eyes on this case, because their rulings are likely to be appealed.
If they don't rule smartly, they risk embarrassment when their decisions are overruled by an appellate judge.
"It’s such a unicorn of a case, you can’t say one court or one judge is apt to go one way or another," Few said. "Judges have reputations, and they’re usually well-earned. Just like lawyers have reputations that are well-earned."
In this case, Clemson has four firms working on its behalf: two in South Carolina, one in North Carolina, and another all the way from Boston.
Few previously worked at one of those firms, Nelson Mullins, alongside a "superstar" attorney in David E. Dukes, a Clemson trustee who is also slated to represent the university in court. Nelson Mullins has an army of attorneys who can, Few said, research a case "to death" and "wear you out."
That is the challenge the ACC faces, dealing with Florida State and Clemson in multiple jurisdictions. FSU recently scored a "win" as Leon County Circuit Judge John Cooper ruled the school's case can proceed despite a parallel case in North Carolina, because the ACC does "significant business" in Florida.
But will a legal war on multiple fronts convince the ACC to fold up its tent and price down its $140 million exit fee for FSU and Clemson? Not necessarily.
"I think it may appease a fan base or some donors," McKenzie said, "but for the seasoned lawyers that are involved in this case, I don’t think they are going to blink. The attorneys representing both sides are top-notch."
So Clemson will argue it filed first in Pickens County, and it can't be sued in another state because public institutions have "sovereign immunity." The ACC will counter that sovereign immunity went out the window when Clemson joined with schools from multiple states to leverage ESPN and spawn the ACC Network.
And Clemson filed first in this case, the ACC argues, only because of deceit.
ACC accusation Just last week, the ACC entered an exhibit in Mecklenburg County documenting emails between attorneys for both parties dating back to Jan. 31.
They discussed language for a non-disclosure agreement, including a "standstill" — a promise that Clemson and the ACC would not sue each other while they discussed a resolution short of taking legal action.
FSU sued the ACC in late December. The standstill between the ACC and Clemson, as proposed in January, would have run until Aug. 1.
Thomas G. Hooper, formerly a Clemson-aligned attorney with Nelson Mullins, wrote back to Charlotte-based attorney James P. Cooney III on Feb. 8 saying the NDA should include something more "defined" than a date-based standstill.
"Rather than delay the discussion while we negotiated that section, we felt like we could circle back to that language via an amendment if it seemed like it might help the talks progress," Hooper wrote. "For now, we think that the attached draft NDA is sufficient to allow our respective clients to begin talking."
On Feb. 21, a week after the ACC's winter meetings, Cooney and Hooper completed another exchange about a proposed NDA, including points about confidentiality and the likelihood of the ACC and Clemson's discussions being verbal, not written, as to not be attainable by public records request.
Cooney followed up a week later on March 1. Hooper didn't reply.
Eighteen days later, Clemson sued the ACC.
"Clemson’s actions created a reasonable belief that no litigation would occur while discussions continued," the ACC's attorneys said in a June 20 filing, "and then, while the conference and Clemson were engaged in negotiating the terms of the documents necessary to facilitate those discussions, Clemson preemptively sued to achieve 'first-filed' status."
It's unclear how persuasive that argument will be with Bledsoe. Meanwhile, Clemson is pushing toward summary judgment in South Carolina, arguing for a reading of the grant of rights and the ESPN deal which has the ACC holding onto the Tigers' broadcast rights for games played in the conference — but not games played in another league, if they were to leave.
The ACC wants that case dismissed. But if Gravely looks to Cooper's rulings in Florida for guidance, then Clemson's effort in South Carolina might live on.
Stranger yet, it's not out of the realm of possibility that both cases continue and Bledsoe and Gravely offer conflicting rulings, which could present a conundrum under the U.S. Constitution's "Full faith and credit" clause — which says states must respect the laws and judgments of courts from other states.
Even more surreal: The U.S. Supreme Court could end up breaking the tie.
That is, of course, if Clemson, FSU, and the ACC don't just settle their cases before there is such a circumstance.
But it doesn't appear either side is quite ready for that.
"We’re going to fight it with every effort that we can,” ACC commissioner Jim Phillips said last week at an Associated Press Sports Editors meeting in Charlotte.
So the lawyers will argue.
The judges will rule.
Those in the profession will warn against believing there is a higher likelihood of a "win" in a plaintiff's backyard. Not that infrequently, lawyers represent out-of-state clients and they receive favorable rulings because the facts required it.
"Home-field advantage," McKenzie said, "is more of an athletic term than a legal one."
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