LINCOLN — Nebraska’s contract to play a college football game with the University of Akron allows the agreement to be voided in the event of “disaster” or even a “tropical storm.”
And while that might take some of the heat off Akron, it also, according to one local attorney, opens the door for NU officials to avoid paying the full $1.17 million that Akron was due.
The NU Athletic Department released the game contract Monday as public discontent over the cancellation of Saturday's game continued to simmer.
Of note in the contract language is item No. 9, which includes the circumstances in which the agreement would be void because the game was canceled by disaster, fire, war, terrorism, earthquake or calamities including rebellion, insurrection or confiscation of Memorial Stadium by order of government.
Among the weather-related items, only “tropical storm,” “hurricane” and “flood” are mentioned. Thunderstorms and lightning — which canceled Saturday night’s game — are not mentioned, and neither are tornadoes.
In item No. 10, the contract says that if either team fails to play the game for reasons other than those listed in No. 9, the party at fault will owe the other $1 million.
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Such natural disaster language, common in contracts, is known by the French term “force majeure,” according to attorney Dave Domina of Omaha. Its purpose is to acknowledge that something could happen that makes performance by either party impossible, and if that does happen the sides won’t sue each other, Domina said.
“It’s designed to be a no-fault walk-away clause for things like exactly what happened,” he said.
The clause would have been clearer, in this case, if item No. 9 said “storm” instead of “tropical storm,” he said.
“You know you always look back at those after the horrific thing happens and say, ‘Gee, why didn’t I use this word?’” he said.
But Domina said given the circumstances a court probably wouldn’t nitpick and would decide based on the facts that the game was 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.”
Omaha attorney Robert Slovek of the Kutak Rock law firm said he can see legal arguments on both sides.
“The term ‘disaster’ is the linchpin,” Slovek said. “This is the stuff lawsuits are made of.”
The contract also spells out Nebraska’s financial obligation — if the game were played.
It said NU would pay Akron $1.17 million “following the scheduled game.” The full payment would have been due by March 1, 2019, had the game been played, but Nebraska officials have repeatedly said the financial details are “to be determined.”
If the contract is voided and no rescheduled game is in sight, Nebraska may not owe Akron the $1.17 million after all.
Domina said Akron may be paid travel expenses. But he said, “I don’t think it gets the fruits of completing the contract.”
Nebraska wanted to play the game Sunday morning and, according to coach Scott Frost, had figured out some kind of accommodation that might have worked. On Sunday, The World-Herald reported that NU was exploring using empty floors in on-campus dorms to house Akron.
“We were scrambling trying to find a place for them to stay,” 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.”
Frost said he understood, too, why Akron made that choice and he may have made the same decision if he were Zips coach Terry Bowden.
Heading into the night, Frost didn’t expect the game to be canceled. He’d lived in Nebraska for a good chunk of his life. He’d seen summer thunderstorms pop up, do their damage and break up within an evening.
“Usually when thunderstorms roll through, the front goes through and maybe another pocket pops up, but you’re still going to have the fireworks on the Fourth of July after the storm’s over,” Frost said. “This one seemed to be tracking right by Lancaster County and wouldn’t give up.”
Mark Rudner, the Big Ten’s senior associate commissioner, said the conference’s command center was in contact with Nebraska all night. The Big Ten also was talking with Fox Sports, the broadcaster of the game.
Rudner personally had a call with NU Athletic Director Bill Moos and Zips Athletic Director Larry Williams between 8 and 9 p.m., he said. Sometime after 10, there was a brief moment when it appeared Nebraska and Akron might play at 10:30 a.m. Sunday. The announcement ran on FS1. NU officials even heard it was going to happen. But Akron never agreed. The FS1 ticker, Rudner said, was a mistake.
“They jumped the gun,” Rudner said. “They jumped the gun on that.”
On the football side, Frost has been here before. For a third straight season, he’s coached a college football team that had a game canceled because of weather. For a second straight season, he faces the possibility of his team losing its bye week to play a makeup game.
The situation is not ideal, Frost said. He’d rather Nebraska didn’t play 11 straight weeks like Central Florida was forced to do last year.
But NU is exploring options to play teams on its Oct. 27 bye week if necessary, Frost said.
“Depth is a little bit of an issue for us at certain positions, and it’s certainly not ideal for us,” Frost said. “I know they’re researching and looking at all options, but given the choice, these guys have worked so hard. They deserve to play a full slate of games. So if they give us an option to fill that game in somewhere, we’re going to take it.”
Akron does not have a bye week on Oct. 27. Nebraska would have to find a team whose bye week is Oct. 27 and doesn’t already have 12 regular-season games on its schedule.
One team that does have a bye week Oct. 27 is Liberty, coached by former Husker quarterback Turner Gill. The Flames are now in the FBS division as an independent team. To fill its 12-game schedule, Liberty scheduled another independent team, New Mexico State, twice, on Oct. 6 and Nov. 24. The latter of the two is a Liberty home game.
Another option for a 12th game would be for NU to play Dec. 1, which is the same day as the Big Ten championship. The Huskers would prefer to play for their conference title over playing a nonconference foe, but a potential makeup date with Akron would be possible, Williams said, if either team needs to play the game to become bowl eligible.
If Nebraska wants to schedule a 12th game on its bye week or Dec. 1, the school merely needs to tell the Big Ten, Rudner said.
“They just inform us,” Rudner said Monday. “They say, ‘Listen, we’re going to play Oct. 27 against anybody who might have a bye date.' Or if they wanted to try to resume the game with Akron at some point on Dec. 1, there’s nothing that can prevent that from happening, either. I think we’d want to be consulted, so we could help with that. But it’s really up to the institution to tell us what they want to do.”
World-Herald staff writers Joe Dejka, Michael Kelly and Jeffrey Robb contributed to this report.