The ACC has long had a provision allowing expansion upon a 2/3rd vote. Nothing in the GOR changes that. Expansion doesn't void the GOR because any school signing the GOR knew that expansion during the GOR's term was possible without unanimous consent. Moreover, Clemson is actually doing *better* financially with expansion because the extra TV revenue is going in part to sweeten the pot for Clemson and Florida State.
I have yet to hear a good legal theory for breaking the ACC's GOR, and the fact that no one has brought suit makes me think there isn't such a theory.
I think the thread title is very appropriate. It's "smoke" from an opium den.
My guess would be a settlement of some sort and I've heard 2/3 years as the timeline on that
Back to the topic heading and claims of Clemson having found a way out of the GOR, each of the above opinions raise interesting points. I concur with retired711 that it's more likely than not that this is all "smoke" in the immediate sense. Rarely do these sort of rumors ever pan-out in the moment. GOR’s have existed for sometime and have never been seriously contested.
Despite the forgoing, this time, it actually seems plausible that Clemson (and, possibly, FSU and/or UNC) might attempt to contest, at least, full enforcement of the GOR. This is the winner-take-all moment of realignment with ALL major programs outside of the B1G and SEC switching conferences, other than those housed in the ACC solely because of its GOR. The ACC powerbrokers want out because they correctly recognize that there are now just two major power conferences (B1G and SEC). They feel entitled to be seated at the grownup’s table and, within reason, have the resources necessary to access those seats. And, they're unlikely to wait until 2036 for the possibility of a chair.
A plausible cause of action is needed to contest the enforceability of a GOR. The ACC’s addition of Stanford, Cal and SMU is more than sufficient to serve as an excuse to file suit. It’s reasonable for Clemson to assert that despite the ACC’s governance documents stipulating that conference expansion was always a possibility, it was never reasonably contemplated that the ACC would expand solely by adding realignment left-over schools on the other side of the continent.
Clemson would argue that the gross negligence of its fellow conference members in recklessly admitting new schools, requiring additional burdens to student-athletes and associated increased travel costs, etc., without any reliable corresponding increase in revenue, amounted to long-term devaluation of the ACC and its brand. By voting "no" on conference expansion, despite the short-term gain, Clemson (and FSU and UNC) further strengthened its hand as it wouldn't be complicit in decisions made to its perceived detriment.
Once in court, jaydog’s observation become relevant. If ever litigated, the GOR will never go to trial. Virtually every claim premised on breach of contract settles. Here, the absence of any meaningful caselaw addressing novel concepts like GORs, virtually guarantees settlement, as the uncertainty as to a predictable outcome will force a compromise.
Clemson and its fellow disgruntled ACC cohorts are smart enough to recognize that they have little chance in invalidating the GOR. But, invalidation wouldn’t be their real goal in litigation. Instead, it would be to negotiate a costly, but manageable exit fee. For the ACC, despite the strength of their argument that the rigid terms of the GOR are truly enforceable, it would be unwise to go the distance and assume the best at trial. Not only would the optics be awful, but even the unlikely possibility of an adverse outcome would absolutely destroy the conference at great financial loss to the members.
In the end, I concur with retired711. This is likely smoke. Still, should it actually occur, as jaydog suggests, the ability of a school to leave the ACC will come to a settlement. As the ACC's ESPN contract runs until 2036, the price-point for departure in the near future will only be affordable to those schools vocally opposed to expansion (which supports a strategy of voting against their own immediate self-interest). These payouts will, of course, be in the hundreds of millions, per school. However, they'll also prove to both be an additional source of revenue and sufficiently unaffordable to keep the remainder of the ACC together as a conference, either forever or until more desirable options arise.
Conference realignment sucks. But, I have little sympathy for the ACC. It was the ACC's Commissioner, John Swofford, who initiated to whole hostile-takeover realignment process, resulting in the death of the Big East as an all-sports conference. Only because of his epic miscalculation in building a wall to exclude the DC-Philly-NYC corridor by adding Pitt and Syracuse, instead of taking Rutgers and prioritizing the needs of Maryland within the most populous region in the country, would we be in the B1G today.