Every year big-time college football programs like those in the Big Ten pay millions to schedule home football games against smaller programs. Those teams travel to the bigger school, typically lose by double-digits, and walk away with a six- or seven-figure check that might be critical in balancing an annual budget. Last year, Southern Mississippi spent $25.7 million on athletics; various game contracts made up $1.6 million of its revenue.
Now that none of those matchups will happen this year in the Big Ten, there’s a potential legal battle looming over the “guarantee games.” As an example, Sportico reviewed the cancellation clauses for a 2020 match-up between Pittsburgh and Miami (Ohio), which was negotiated in late 2016. Pitt agreed to pay Miami $1.1 million to play at Heinz Field on Sept. 5.
Section 9 describes the existence of “unforeseen catastrophes or disasters or circumstances beyond the control of a party,” which would result in the game being canceled without any money changing hands. Section 10 says that in any other circumstance, if the wealthier school cancels the game it owes the full amount.
The money in these deals isn’t insignificant. Two years ago, USA Today compiled a list of all the 2018 guarantee games. The total value of those games was more than $175 million; Big Ten teams were committed to paying more than $10 million. And while fights over canceled guarantee games aren’t common, they do happen. In 2017, for example, Hurricane Irma disrupted the early part of the college football schedule, leading to a lot of confusion over the status of payments.
When these deals were negotiated—typically years in advance—they were designed to anticipate potential disruptions that would prevent a school from fulfilling its duties. Yet as 2020 marches on, and as more games are canceled, many of these deals appear ill-equipped for the pandemic.
Take Section 9 of the Pittsburgh–Miami (Ohio) contract above. It applies if it becomes “impossible” to play a game for a qualified reason. Qualified reasons include power failures, riots, wars and “circumstances beyond the control” of either school. This game too appears in doubt, as the ACC is also reportedly switching to conference-only.
The pandemic is clearly beyond the control of Pittsburgh and Miami. However, the pandemic doesn’t necessarily make playing the game “impossible.” A number of schools have resumed sports, including football, since the pandemic began. Meanwhile, the major pro sports leagues all intend to play games. Whether any fans can attend, or whether all players can participate in, those games doesn’t determine whether their playing is possible.
A conference’s decision to limit play to intraconference games would make out-of-conference matchups “impossible,” at least under conference rules. However, conferences make decisions with the input of members. To that point, the Big Ten made its decision “following many thoughtful conversations” with presidents, chancellors and athletic directors of member schools, as well as other stakeholders. This description relates to key language found in Section 9: To the extent a member school had some level of influence over the conference’s decision, then the “impossibility” of playing games might not be “beyond the control” of the school.
This year’s pandemic will likely change how these contracts are written moving forward. As an example, here’s a contract for a game between Miami (Ohio) and Wisconsin in 2025. The agreement was finalized in April, well after a COVID-19 shutdown was in effect across the country. Not only does this contract specifically mention “regional or global epidemics, pandemics, quarantines and other similar health threats,” it also lists coronavirus by name.
That said, even this language raises questions, as “coronavirus” may not prove as straightforward as it seems. For one, “coronavirus,” by itself, is an imprecise term. According to the Centers for Disease Control, there are seven types of coronaviruses that can infect humans. The one currently ravaging the world is SARS-CoV-2.
Even if a contract’s reference to “coronavirus” means what that word has come to mean in 2020, coronavirus and COVID-19 are not synonymous. The former is the virus that causes the latter, a disease. Why does this matter? Because government orders that effectively block the playing sports might concern the disease but not the virus.