This is a follow-up to the most read post on this blog. That’s the one about the lawsuit brought by the University of Louisville against Duke University when Duke backed out of its contract to play four football games against the Cardinals. Louisville sought a contractual cancellation fee of $150,000 per cancelled game, but Duke won the case on a Motion for Judgment on the Pleadings.
You can read the earier post here, but a quick synopsis of Kentucky Judge Phillip Shepherd’s decision is that Louisville was not entitled to damages because the contract said that Louisville could not get damages if it was able to replace Duke with teams of "similar stature." The Court observed that at oral argument, Duke . . . persuasively asserted that this is a threshold that could not be any lower." The Court adopted Duke’s argument that any football team playing in former Division 1-A and many in former Division 1-AA were of "similar statute" to Duke, and dismissed the case.
Since then, I’ve been wondering: what exactly did Duke’s lawyers say to Judge Shepherd to so "persuasively assert" that Duke football is so bad?
Well, not only can I fill you in on that, you can watch and see for yourselves. The Court in Franklin County, Kentucky, videotapes some of their hearings, and a video excerpting the highlights of the Louisville v. Duke hearing is at the top of this post. (There’s no criticism of the lawyering here, Duke’s lawyer did a great job, and after all, she won the case for her client.). The video takes a few seconds to get going.
If you don’t want to take the time to watch the video, you can keep reading to see exactly what was said.
The Court Can Take Judicial Notice that Duke “Is Probably the Worst Football Team in Division I Football.”
Duke’s Lawyer: "I think the Court can absolutely positively take judicial notice that Duke is probably the worst football team in Division I football. Everybody knows that. That’s no secret. The longest losing streak, the inability to ever win games. Everybody knows about it. That’s well documented. We certainly don’t have to go out and take six months of discovery to establish that for you."
Playing Duke Is An Automatic Win
Duke’s Lawyer: "So the bottom line is how much discovery, if any, should anyone have to take, want to take or need to take to make the simple analysis of whether or not that was a team of similar stature? It’s judicial notice that they got beat by Utah. Maybe that’s part of the dispute – that they wish they’d played somebody weaker, like Duke which would have been an automatic W."
No One In Their Right Mind Would Televise A Duke Football Game
Duke’s Lawyer: "I think again you can take judicial notice of the fact that the Louisville-Utah game ended up on TV. I don’t know, I don’t have the discovery on it, but I’ll guarantee they made more money playing a team that there was some interest in in Utah than they ever would of in playing Duke who no one would televise in their right mind." (As pointed out later in the hearing by Louisville’s lawyer, that’s not exactly right. Duke was on national television last year playing Notre Dame, and is frequently televised in ACC games).