Utah canceled on Bulldogs basketball game. Will it also get out of paying damages?
Fresno State agreed to and signed a contract to play a non-conference basketball game at Utah on Dec. 19 in Salt Lake City, which came with a $90,000 guarantee as well as two nights of lodging for the Bulldogs’ traveling party and complimentary tickets to the game.
But after weeks of discussion, Utah has canceled it and filed a lawsuit to determine whether it owes Fresno State $200,000 in “liquidated damages,” something that could become more common as college athletics makes its way through the coronavirus pandemic.
Despite the lawsuit, Fresno State remains open to continuing discussions with Utah to find an equitable solution to play the game, Bulldogs Athletic Director Terry Tumey said.
“That could be figuring out the contest for this year or additional contests in the future,” Tumey said. “All would be under consideration.”
The contract was agreed to in April, but without the force majeure or “uncontrollable forces” clause including language specific to the coronavirus pandemic, which would seem an odd oversight.
When the contract was signed — Fresno State signed it April 20 and Utah on May 5 — college athletics had in large part been shut down by COVID-19.
Contract clause at issue
The NCAA Tournament in men’s and women’s basketball, as well as other winter and spring sports championships, had been canceled. Athletic departments across the country had sounded alarms over a sharp decline in revenues due to COVID-19, and a number of schools started dropping sports programs to cut costs.
The clause in the game contract obtained by The Bee states: “It is understood that neither party hereto can foresee exigencies which may arise by reason of unusual circumstances beyond their reasonable control, including acts of God, acts of nature, or actions of any governing regulatory body, including but not limited to the NCAA or any governing athletic conference. Either party may delay or cancel any scheduled Game for reason due to uncontrollable forces by providing written notice of delay or cancellation to the other party immediately upon the occurrence of any such uncontrollable event.”
Utah, in the lawsuit obtained by the Salt Lake Tribune, contends that “since the date the parties entered into the agreement the worldwide COVID-19 pandemic has negatively affected the University’s anticipated intercollegiate athletics play including with respect to the men’s varsity basketball program, creating unusual circumstances beyond the parties reasonable control.”
Included are limits on the number of non-conference games to be played and the inability to have fans at games, resulting in the loss of revenue.
“In short,” Utah contends in the suit, “the underlying foundational assumptions upon which the parties entered into the agreement has been fundamentally altered by forces beyond the University’s reasonable control.”
It also states that Utah had worked with other universities to reschedule games or renegotiate contract terms and had been successful, with the exception of the Bulldogs.
Is home-and-home series a solution?
Fresno State, according to athletic department sources, has told officials at Utah that it is willing to work toward a resolution including taking less than the $90,000 guarantee in exchange for a home game against the Utes next season at the Save Mart Center.
In an email from Tumey to Utah Athletic Director Mark Harlan, portions of which are included in the lawsuit, the Bulldogs’ AD confirmed that — stating Fresno State had offered to accept a reduced financial payment in return for Utah playing a game at Fresno State the following year or on a mutually agreed upon date.
It is, Tumey stated, a “fair and equitable solution.”
Tumey also contended that cancellation does not fit within the definition of force majeure in the game contract. “To that fact,” Tumey wrote, “you’ve started that the University of Utah is willing to host Fresno State for a significantly reduced financial arrangement, which further supports that the game is available for play by both parties.
“To my knowledge, COVID-19 has not barred college basketball games from being played in the state of Utah so it does not meet the standard of (the uncontrollable forces clause of the contract). Similarly, you cite conference limitations on non-conference games, but the limit is not an uncontrollable factor to the University of Utah if it can pick and choose which non-conference games to play.
“A change in gate receipts is also not barring the ability to play the game and hence does not constitute an uncontrollable force.”
Utah, according to the Salt Lake Tribune, has pushed games against Cal Poly, Cal State Fullerton and Rice to different seasons and renegotiated a contract with Utah Valley.
A Pac-12 program is unlikely to play on the road at a Big West school, so the Bulldogs’ solution of turning the guarantee game in December into a home-and-home series does not fit all scenarios. But Utah played at Fresno State in 2011 as part of a series, and has played series against other Mountain West Conference programs — last season, Utah finished a home-and-home against Nevada with a win at the Lawlor Events Center in Reno.
Fresno State also has played home and home or 2-for-1 series the past few years against Cal and Oregon from the Pac-12.
The Bulldogs continue to build a 2020-21 basketball schedule, confirming games Nov. 25 against NAIA school William Jessup, Nov. 27 at Pacific and Nov. 30 against UC Riverside.