College Football--Big Ten Expansion

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08/14/2023 00:19

Subject: Re:College Football--Big Ten Expansion

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Anonymous

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Anonymous wrote:(OP again)

I am responding to the discussion regarding states sovereign immunity because it isan issue that may be raised if FSU decides to leave the ACC and cannot work out a satisfactory settlement with the ACC and ESPN and other relevant parties who have an interest in the matter.

Again, please read:

https://naag.org/attorney-general-journal/state-sovereign-immunity/

As I have written above, the state may waive its sovereign immunity in various ways such as failure to raise this affirmative defense, by legislation, by agreement stipulated in a contract, etc.

Read Pan-Am Tobacco Corp. v. Department of Corrections, 471 So. 2d 4 (Fla. 1984). There, the Supreme Court unequivocally held that state sovereign immunity does not apply in breach of contract actions, stating, “where the legislature has, by general law, authorized entities of the state to enter into contract or to undertake those activities which, as a matter of practicality, require entering into contract, the legislature has clearly intended that such contracts be valid and binding on both parties.” The court reasoned that to hold otherwise would render legislative authorization for such contracting void and meaningless. The Pan-Am Tobacco rule has been reaffirmed and applied dozens of times since 1984, most recently by the Florida Supreme Court in American Home Assurance Co. v. National Railroad Passenger Corp., 908 So. 2d 459, 462 (Fla. 2005).

Or the case here from this year from Florida dealing with a Floridt State University:

https://public.fastcase.com/ZZhmr5v9wN%2FXOe5IsQ%2FqDzRezr6rFFTdx7DtuuWe%2BmOYNwrmLM1%2FHrVMvxnaUdB%2Fdep3ur3VchJf6IKl7zFHmg%3D%3D

What is your understanding of the outcome of this case ?

To my understanding after a very quick read, it seems to support Florida International University (FIU, not FSU) regarding sovereign immunity and that sovereign immunity must be waives.

The holding of this case is that the waiver does not apply to an implied contract as opposed to a written contract. In reaching this result they reaffirm the rule from Pan Am set out above ---- waived for a written contract.

Do you understand the difference between a "holding" and "dicta" ?

I do. I am a lawyer. And if a lawyer would tell you that the State can enter a contract and not have to honor it because of Soveriegn Immunity they don't have a clue. Our entire commercial system would fall apart if that were the case.

You are correct, and that is not the same as denying sovereign immunity exists. It’s not very common, because it’s fairly rare that a governmental entity flat out breaches a written contract, but, when it happens, Courts invariably find that sovereign immunity doesn’t relieve the government of damages for breach, even when there is not an explicit waiver. When I first looked at this a couple of decades ago, most of the case law was from the 19th century, but there have been more cases since then.