Judge: Standard Set By Duke Football Team Couldn’t Be Any Lower

[WSJ_law_blog]

Lawyers for Duke University were recently forced into making an odd argument: As a matter of law, the Duke football team couldn’t be any worse.

Here’s the story from the Georgia Bankruptcy Blog, and here’s what happened: The University of Louisville (Go Cards!) filed suit against Duke in Kentucky state court because Duke backed out of a contract to play a four-game series against Louisville. Duke defended the decision based on a provision in the contract which stated that it had to pay a fee of $150,000 per game only if Louisville was unable to find a replacement opponent of “similar stature” to Duke.

What does similar stature mean? In discovery, Duke clarified that “any and all college varsity teams in the Football Bowl Subdivision (formerly Division I-A) are teams of a ’similar stature’ to Duke,” though it conceded that “junior varsity programs of any of the aforementioned teams would not be teams of a ’similar stature’ to Duke’s varsity college football team.”

At oral argument, a Duke lawyer said:

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. . .We certainly don’t have to go out and take six months of discovery to establish that for you. . .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.

On summary judgment, the court agreed:

The term ‘team of similar stature’ simply means any team that competes at the same level of athletic performance as the Duke football team. At oral argument, Duke . . . persuasively asserted that this is a threshold that could not be any lower. . .Duke won only one football game, and lost eleven, during the 2007 football season.