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Contract Clause Could Save the University of Nebraska $1 Million After Weather-Cancelled Game

Contract Clause Could Save the University of Nebraska $1 Million After Weather-Cancelled Game

The University of Nebraska could be required to pay the University of Akron $1 million after a thunderstorm forced the cancellation of the football game between the two school’s teams – but item number nine on the contract may void that agreement.

The schools agreed to compete in Lincoln, NE on Saturday, September 1 back in 2016, and the home school agreed to pay its visitors $1.17 million, plus a handful of other incentives to make the unique agreement work out for both schools. However, a multi-hour thunderstorm forced the game’s cancellation. According to the contract (PDF) between the two schools, which was signed on September 26, 2014,

Either party failing to produce its team to play the scheduled game for reasons other than those stipulated in paragraph 9, shall pay the party not at fault the sum of $1,000,000.00 as liquidated damages plus any expenses incurred in pursuance of this Agreement by the party not at fault, which sum shall be payable on or before March 1, the year following the scheduled game.

Those protections in paragraph nine, which allow for the cancellation without also incurring the $1 million penalty if that cancellation is forced by a natural disaster or event outside of the school’s hands, are common in these types of contracts according to Domina Law Group attorney David Domina.

“It’s designed to be a no-fault walk-away clause for things like exactly what happened,” he said in an interview with the Omaha World-Herald.

However, the specific wording of the clause has the potential to cause problems for NU if it’s followed to the letter. Paragraph nine states that,

This Agreement shall be void in the event it becomes impossible to play the game by reason of disaster, fire, hurricane, tropical storm, flood, earthquake, war, act of terrorism, invasion, hostilities, rebellion, insurrection, confiscation by order of government, military public authority, or prohibitory or injunctive orders of any competent judicial or other governmental authority.

Because thunderstorms and lightning aren’t specifically mentioned in the list of reasons the game would be impossible to play, there’s a chance that the University of Akron could push to receive the $1 million. Domina stated that he does not believe this will be the case, and that the court will likely make its decision based on the fact that the game was still unplayable.

“I would guess that a court would decide that the game could not be played with the risk that was posed to the lives of the players and the fans and the coaches at the time that one was about to start,” he said. “I would think that that would be a legitimate walk-away provision.”

Domina said that NU may still cover the cost of the University of Akron’s travel, but that decision will come later.

Once it became clear that the game would not be played on Saturday night, NU explored alternatives to try and make sure that it could still happen by pushing it to Sunday morning. However, finding accommodations – including looking into using empty on-campus rooms since hotels throughout the city were booked up – for the visiting Akron squad proved impossible.

“We were scrambling trying to find a place for them to stay,” Nebraska head coach Scott Frost said at a press conference Monday. “We kind of found a place, but it certainly wouldn’t have been ideal for his team to not know where they’re eating, not know where they’re staying, not know where everybody is.”

Fox Sports 1, which would have broadcast the game Saturday night or Sunday morning, briefly displayed an announcement on its ticker stating that the game would be played at 10:30 a.m. on Sunday. According to Big Ten Senior Associate Commission Mark Rudner, that display was a mistake and was run despite the fact that Akron never agreed to the new game time.

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