The University of Utah and Fresno State are going to court to decide whether or not the former owes the latter money for a men’s basketball game that will not get played this season amid the COVID-19 pandemic.
In a lawsuit filed by Utah Thursday in Third Judicial District Court, Utah, citing the “uncontrollable forces” section of the game contract, is allowed to cancel a game that was scheduled for Dec. 19 at the Huntsman Center. The game was agreed to on April 17. Fresno State assistant athletic director Jason Cappadoro signed the contract on April 20, while Utah deputy AD Kyle Brennan signed it on May 5.
Under the terms contract terms, Fresno State was to be paid $90,000, plus two nights lodging that included 16 hotel rooms. Fresno State is contending that “uncontrollable forces” do not apply here, and, per the “liquidated damages” section of the contract, is instead owed $200,000.
Utah is contending that the COVID-19 pandemic falls under “uncontrollable forces,” given that as a result, there are now limitations on how many nonconference games can be played and the fact that Utah will lose gate revenue at the Huntsman Center with no fans allowed at games. The Utes' original nonconference schedule included five one-off “guarantee games” totaling $455,000 going to the opponents.
In the wake of the pandemic, Utah has worked in good faith with those one-off opponents, pushing games with Cal Poly, Cal State Fullerton, and Rice to different seasons. In the case of the Nov. 10 season-opening game vs. Utah Valley, which had an $80,000 guarantee attached to it, the Utes and Wolverines renegotiated to play on Dec. 15 for $40,000.
The lawsuit states that “Fresno State, in contrast, has declined to reschedule or renegotiate on reasonable terms. Consequently, the University (of Utah) determined to exercise its right under the Agreement to cancel the Game.”
Utes athletic director Mark Harlan emailed his Fresno State counterpart, Terry Tumey, on Nov. 5, to notify him of Utah’s intention to cancel the game under the “uncontrollable forces.”
“As you know, I have attempted to negotiate an informal resolution of this issue with you, which would include compensation and lodging to Fresno State now or a postponement of the game at Utah to a future year,” Harlan’s email read in part. “Despite the fact that institutions throughout the country are making similar arrangements in a cooperative manner as we face this pandemic, you have declined the University’s incredibly reasonable proposal. I am very disappointed with your decision. Since we cannot agree to a postponement of the game, we are exercising our right to simply cancel the game.”
Tumey’s response asserted that Utah cannot rely on force majeure, but instead must pay liquidated damages of $200,000 as outlined in the game contract. Tumey also stated that Harlan had said Utah was willing to host Fresno State at a reduced rate, similar to the Utah Valley situation. To Tumey, that indicated that the game could still be played despite the pandemic.
“To my knowledge, COVID-19 has not barred college basketball games from being played in the state of Utah, so it does not meet the standard for paragraph 7 (‘uncontrollable forces’),” Tumey wrote. “Similarly, you cite conference limitations on non-conference games but this limit is not an uncontrollable factor to the University of Utah if it can pick and choose which non-conference games to play. A change in gate receipts is also not barring the ability to play the game and hence does not constitute an uncontrollable force.”
Utah’s nonconference schedule has four confirmed games, Nov. 25 vs. Dixie State, Dec. 8 vs. Idaho State, Dec. 12 at BYU, and Dec. 15 vs. Utah Valley. While Utah Valley gets $40,000, Idaho State will get $45,000 for the 165-mile ride to Salt Lake City.
The BYU game survived the pandemic with the original date intact and will act as the first meeting of a new four-game agreement between the two sides. The monetary figure attached to the Dixie State contest was not immediately known when The Salt Lake Tribune reported Tuesday that the Trailblazers and Utes were finalizing an agreement.
In an interview with 700 AM on Wednesday, Utah coach Larry Krystkowiak would not confirm the Dixie State matchup, but said to expect games at the Huntsman Center on Nov. 25 and 27. The Nov. 27 opponent would be Utah’s fifth outside the Pac-12 and, at this late date, is likely to finish the nonconference schedule.