Do Utah and other Pac-12 football teams owe damages after the Pac-12 canceled nonconference contests?

(Rick Egan | The Salt Lake Tribune) Utah takes the field for football action between the Brigham Young Cougars and the Utah Utes, at Rice-Eccles Stadium, Saturday, November 24, 2018.

The University of Utah will not be hosting BYU to open the college football season on Sept. 3, nor will it be welcoming FCS power Montana State to Rice-Eccles Stadium on Sept. 12. A trip to Laramie to face the University of Wyoming on Sept. 19 is also off.

That much we know after the Pac-12 announced late last week that it will be going to a conference-only format for fall sports, including football. The league is expected to release a revamped football schedule, likely with nine or 10 games, no later than July 31.

Those three nonconference games may be off, but there is still the matter of how Utah will deal with the three game contracts, all of which have been obtained by The Salt Lake Tribune via GRAMA request.

The Utah-BYU contract, which was drafted by Utah on June 30, 2015, and signed by both sides in September of that year, was for a home-and-home series, beginning last season when the Utes traveled to Provo for the opener. Per the terms of the deal, the home team pays the away team $250,000 within 90 days of the game being played.

The Utah-Montana state agreement was also drafted by Utah as a one-off or “guarantee game,” in which the Bobcats were to receive $675,000. Such agreements have become commonplace when a Power Five program hosts an FCS or Group of Five program. “Guarantee game” payments generally range from low six figures all the way to north of $1.5 million. Utah has similar future agreements in 2022 and 2024 with Southern Utah for $600,000 and $625,000, respectively, as well as 2023 vs. Weber State ($600,000).

“We have been contacted about trying to reschedule, but that is all I have at this time,” Montana State athletic director Leon Costello told The Tribune via email Friday afternoon.

The BYU and Montana State contracts have nearly identical wording in Sections 7 and 8 for “uncontrollable forces” and “liquidated damages.”

An “uncontrollable force,” as outlined in the contracts, is labeled as “unusual circumstances beyond their reasonable control, including acts of God, acts of nature, or acts of any governing regulatory body, including but not limited to the NCAA or any governing athletic conference.”

In layman’s terms, an “uncontrollable force” can legally cancel a game. A pandemic would fall under “uncontrollable force.” In regard to specifically the Montana State game and the $675,000 owed, once it is established that an “uncontrollable force” canceled the game, Utah would not be made to pay Montana State, and the “liquidated damages” portion of the contract is moot.

“The BYU and Montana State contracts appear to be drafted by the University of Utah and contain language that “acts of any governing regulatory body, including but not limited to the NCAA or any governing athletic conference” qualify as a “uncontrollable forces” under the contract, and therefore, excuse performance,” David Hall, an attorney with Salt Lake City-based Parsons, Behle & Latimer, told The Tribune in an email. “Since the Pac-12 Conference canceled the non-conference games, it appears the “Uncontrollable Forces” requirement has been met.”

Under “liquidated damages,” it reads “In the event either party should cancel or otherwise fail to participate in scheduled game for any reason other than uncontrollable forces as defined in Section 7 hereof, the defaulting party shall pay to the nondefaulting party the sum of $1,000,000 in liquidated damages for each such canceled game.”

On the evening of July 12, Utah athletic director Mark Harlan, in response to a Twitter inquiry regarding the Utah-BYU series, said the Utes would continue the series as scheduled and travel to Provo in 2021. Harlan later indicated he expects to get the lost home against the Cougars back down the road.

That is not expected to be a problem as Harlan in the past has spoken of his positive working relationship with BYU athletic director Tom Holmoe. Last September, the two sides agreed to defer matchups in 2022 and 2023 so Utah could schedule a home-and-home with Florida. Right behind that, Utah and BYU jointly announced a four-year extension to the series. They now have six games scheduled against each other through 2028.

Utah’s next schedule opening in a year it is not already playing BYU is not until 2029. The Utes’ next opening of any kind comes in 2025, when they have a trip to BYU, and the return game of the Wyoming series at Rice-Eccles Stadium.

The Utah-Wyoming contract, executed by the latter and signed by both sides in April 2017, includes different, albeit important language.

Wyoming’s answer to “uncontrollable force” is “impossibility,” which in part reads “If an unforeseen catastrophe or disaster makes impossible the playing of any contest by either party, that contest shall be canceled, and neither party shall be responsible to the other for any loss or damage.”

The “impossibility” section goes on to state that a cancellation under those conditions will not be deemed a breach of contract. On that note, Wyoming was to pay Utah $250,000 for the trip to Laramie, with Utah paying the same amount to Wyoming once the 2025 game gets played.

Hall suggested “Impossibility” could come into play if Utah winds up playing a Pac-12 game on or before Sept. 19. The Utes and Cowboys simply figuring out when to reschedule the game in Laramie, as Utah and Montana State are apparently doing, could go along way to avoiding any legal troubles.

With Wyoming slated to go to Utah in 2025, the first opening for the Utes to go to Laramie is not until 2027, which already includes a home game against Houston and a trip to BYU.

“My experience with these types of provisions is that the relationship between the parties is much more important than what is, or is not, permissible under the language of the contract,” Hall said. “If the University of Wyoming athletics department wants to maintain a good working relationship with the University of Utah athletics department, they may be more motivated to discuss rescheduling the game in the future than arguing about whether they are entitled to liquidated damages under the contract. Moreover, athletics departments must consider that they are likely to be on both sides of this argument. Most athletics departments will have to cancel or reschedule sporting events as the result of COVID-19.”

A Wyoming athletic department spokesman declined comment when reached by The Tribune Friday afternoon.