Contracts Between Universities To Play Football, Part III
In November of 1999 the University of Louisville and Duke University entered into a contract to play 4 games beginning in 2002, with the next three games scheduled for 2007, 2008 and 2009. In 2002 Louisville beat Duke 40-3; after that Duke looked to get out of the contract for the final three games of the series.
According to the contract, for each game breached by Duke they would have to pay $150,000.00 to Louisville. Thus, for canceling three games Duke was looking at paying $450,000.00 to Louisville. However, the key point in the contract said Louisville first had to try to schedule a team similar in stature to Duke before they could receive damages.
In November of 2007 Louisville filed suit against Duke. Louisville claimed that, “it could not find an opponent of similar stature to fill the schedule and received little, if any, help from either Duke or the [Atlantic Coast Conference] in finding a replacement.”. Louisville further stated it had contacted every member of the Football Bowl Subdivision to find a replacement, but could not find a school willing to play two games at Louisville in exchange for a return game.
Duke’s lawyers claimed that Duke’s football record of 6-45 over the past five seasons was so bad that any team Louisville could find would be a suitable replacement. Judge Phillip Shepherd agreed with Duke, stating:
"To say that one thing is of a similar stature to another is to say that the two are on the same level. Nothing in the language of the agreement suggests that it is necessary or appropriate to conduct an in-depth analysis of the relative strengths and weaknesses of the breaching team and its potential replacements. Nor does the agreement specify that Replacement teams must be from a particular major athletic connference or even a particular division of the National Collegiate Athletic Association (NCAA). The term team of similar stature simply means any team that competes at the same level of athletic performance as the Duke football team. At oral argument, Duke (with a candor perhaps more attributable to good legal strategy than to institutional modesty) persuasively asserted that this is a threshold that could not be any lower. Duke's argument on this point cannot be reasonably disputed by Louisville.
You might say that the judge was unwilling to add injury to insult.
No damages were awarded due to a successful defense based upon Duke’s lack of a successful defense (and offense). Their recent history of ineptitude in football (current Coach David Cutcliffe has recently made major strides in changing this perception) resulted in Duke winning one against Louisville.
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