Is ESPN's definition of 'game' a trade secret? Clemson objects to redactions in ACC suit. (2024)

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  • By Jon Blaujblau@postandcourier.com

    Jon Blau

    Jon Blau has covered Clemson athletics for The Post and Courier since 2021. A native of South Jersey, he grew up on Rocky marathons and hoagies. To get the latest Clemson sports news, straight to your inbox, subscribe to his newsletter, The Tiger Take.

Is ESPN's definition of 'game' a trade secret? Clemson objects to redactions in ACC suit. (3)

CLEMSON — In Clemson's complaint against the Atlantic Coast Conference, there are more than two pages of blacked-out text, hiding references to potential "trade secrets" from the conference's deal with ESPN.

Most of those redactions, in Clemson's opinion, aren't necessary.

In a filing this week in Pickens County, the university's attorneys argue for the judge to unseal all but two paragraphs in their April 17 amended complaint. Not only because they pertain to topics as mundane as the contract's definition of "game," "conference institution," and "composition clause"— but also because Clemson can'tfully explain its interpretation of the ACC's media deals if those paragraphs are hidden from view.

"(The ACC) cannot, on the one hand, rely on these terms to publicly advance its incorrect construction of the Grant of Rights while, on the other hand, hiding behind a claim of trade secret protection to hamper Clemson's ability to advance Clemson's own construction of that agreement," the university's lawyers wrote.

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Clemson haslaid out an exceptionally nuanced reading of the ACC's grant of rights, which plainly states the league "irrevocably" owns schools' broadcast rights "regardless" of whether a school remains in the conference for the length of the ESPN deal, which could run until 2036.

The university concedes the ACC owns the rights to games it has played in the conference— but not games the Tigers could play in another conference, if they were to pack up and leave early.

Clemson's lawyers said they came to this determination reading the ESPN agreements, which run 104 single-spaced pages on the rights to ACC home games and another 43 pertaining to the ACC Network. Schools could only read these contracts by visiting the conference office in North Carolina.

The judge in Pickens County ordered the ACC to hand over a copy of the ESPN deal to Clemson. But the contract— and sections in Clemson's complaint referencing the contract — were to remain under seal.

Florida's attorney generalchallenged the contract's confidentialityamid Florida State’s lawsuit against the conference. The Big Ten, SEC and Big 12all came to the ACC's defense,asking the courts to keep the document private.

"The ACC does not dispute that this lawsuit has public significance. But the lawsuit’s public interest in these matters, standing alone, does not outweigh the harm to the ACC and ESPN if the ESPN Agreements are disclosed," the ACC's attorneys argued in Pickens County.

The ACC noted only nine of the 152 paragraphs in Clemson’s complaint were redacted as a result of the court's sealing. Plus one footnote, which the ACC agrees should be public.

Of the two paragraphs Clemson wants to remain secret, one is quickly followed by an argument about the ACC not suffering damages "remotely approaching" the league's $140 million withdrawal penalty if Clemson were to leave. The school seems to agree that a trade secret might support that fact.

But Clemson's attorneys want redactions removed from more than two pages of text under the heading "Rights actually granted by Clemson: What do the ESPN agreements say?" Most of the information cited, they believe, is public record.

Clemson points to a pair of instances where ESPN has already confirmed the existence of a composition clause, which allows the network to reassess the value of the conference when there are changes in membership.

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Sports Business Journal reported on the clause in 2011, and then-ESPN Vice President of College Sports Programming Burke Magnus clarified its meaning after the ACC added Syracuse and Pittsburgh and triggered the clause.

"It is not an 'out clause,' nor does it trigger a complete renegotiation of the entire agreement," Magnus wrote for ESPN "Front Row" in 2012. "Again, conference composition clauses are standard in our industry and are part of every ESPN college rights agreement."

The composition clause has, in recent months, been publicly speculated about because of what it might dictate if Clemson and Florida State were to leave the league before SMU, California and Stanford officially joined.

That concern is dwindling. SMU's first official day in the ACC was this past week. Stanford and Cal are slated to join in August, bringing the league's total of schools to 18, including non-football member Notre Dame.

It remains unclear, however, why Clemson's attorneys are raising the composition clause in their complaint. Because of all the blacked-out text, context clues are scant.

In a paragraph Clemson identifies as including ESPN's definition of "game," an unredacted sentence reads "Thus, the ACC was required to provide only the rights necessary ... " — similar in wording to Clemson's arguments about the rights to future games, if and when the Tigers leave the conference, not being "necessary" for the ACC to fulfill its obligations in the ESPN deal.

The three paragraphs in Clemson's complaint referencing the composition clause, according to the university's lawyers, are entirely blacked out. They lead into a paragraph about an adjacent circ*mstance: That an ACC school can be expelled by a three-fourths vote of its fellow members — and the ACC could, allegedly, hold onto that ex-member's rights until 2036.

That is an "illogical" outcome, the complaint says.

"Similarly," the very next paragraph reads, "Clemson could withdraw from the Conference, pay an exorbitant withdrawal penalty to the Conference, and join another conference, but the ACC would still own the media rights to broadcast Clemson's home games through 2036."

The public does not have access to the ESPN deal to check those assertions, and parts of Clemson’s complaint are, literally, opaque.

But the university's most recent filing attached copies of previous ESPN deals that reached the public sphere via other court cases.

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Portions of the ACC's 2010 deal with ESPN were disclosed as part of Keller v. Electronic Arts, revealing the section pertaining to the definition of "game." It lays out variants like "men's varsity college football game," or "Conference-sanctioned Olympic Sport game," or "the ACC/Big Ten Challenge ... in which any Conference Institution is the home team."

A section referring to "conference game" was made public from a 2005 deal between ESPN and Conference USA, which is defined, simply, as "one played between two conference teams."

Clemson believes redacting references to such terms, because of concerns over trade secrets, is overkill.

"It is hard to imagine,"Clemson's filing says,"how the ACC or ESPN might 'derive independent economic value' from the definition of 'conference institution.'"

Follow Jon Blau on X @Jon_Blau. Plus, receive the latest updates on Clemson athletics, straight to your inbox, by subscribing to The Tiger Take.

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Jon Blau

Jon Blau has covered Clemson athletics for The Post and Courier since 2021. A native of South Jersey, he grew up on Rocky marathons and hoagies. To get the latest Clemson sports news, straight to your inbox, subscribe to his newsletter, The Tiger Take.

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Is ESPN's definition of 'game' a trade secret? Clemson objects to redactions in ACC suit. (2024)

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