Arkansas State threatens to sue Miami for canceled football game

Letter from Arkansas State attorney says 'force majeure' clause not applicable

By Peter Burke - Local10.com Managing Editor
Mike Ehrmann/Getty Images

Arkansas State University has set a Thursday deadline for the University of Miami to pay a $650,000 "liquidated damages" fee for canceling its September football game.

PEMBROKE PARK, Fla. - Arkansas State University is threatening to sue the University of Miami if it doesn't pay "liquidated damages" in the amount of $650,000 for canceling a football game last September.

Brad Phelps, general counsel for Arkansas State, sent a letter Monday to UM threatening to file a lawsuit if the school doesn't pay the fee by Thursday.

In his letter, Phelps wrote that UM athletic director Blake James informed Arkansas State athletic director Terry Mohajir on Sept. 6 that the football team would not travel to Jonesboro, Arkansas, for the Sept. 9 game because of the threat of Hurricane Irma.

"The reason given by Mr. James was that the return trip home would be difficult given the fact that a hurricane was scheduled" to make landfall in the Miami area on the weekend of the game, Phelps wrote. "Mr. James did not dispute that Miami's football team could travel to Jonesboro."

Phelps said Mohajir "made numerous good faith efforts to accommodate Miami" by offering to move the game to the evening of Sept. 8, pay for the team and staff to fly from Miami to Memphis on a separate air charter service, and allow the Hurricanes to stay in the Jonesboro area and use Arkansas State's facilities after the game.

"Despite these offers, accommodations and a number of other unilateral efforts on behalf of Arkansas State University, Miami refused to appear," Phelps wrote. "This refusal caused Arkansas State University, the community of Jonesboro and others significant harm."

Phelps said Arkansas State has offered to reschedule the game for a future season, but James said the earliest Miami could play a return game would be in 2024. Phelps said Mohajir "explained that those dates were not workable" and "would be detrimental" to Arkansas State.

Upon learning that Miami has openings in 2020 and 2021, Mohajir offered to schedule a return game at Miami if the Hurricanes would agree to play in Jonesboro, but James refused and cited "prior scheduling agreements," Phelps wrote.

The letter cites several other schools whose football games, including Miami's game against rival Florida State, were rescheduled because of Irma.

"Miami is the only FBS school to fail to timely reschedule its cancelled game or make a good faith attempt to do so and fulfill the terms of its contract," Phelps wrote.

The original game contract from 2013 has a "force majeure" provision that allows for the cancellation without penalty in the event of an unforeseen catastrophe or natural disaster.

But Arkansas State claims that, because the game was supposed to be played in Jonesboro and not South Florida, the force majeure clause "is not applicable."

UM assistant general counsel James D. Rowlee sent a letter to Arkansas State last Friday in which he wrote that the open dates in 2020 and 2021 "are reserved for games with Football Championship Subdivision (FCS) institutions."

"Second, even if those dates were to be released for a game with a non-FCS institution, the presently uncommitted home game dates in 2020 and 2021 cannot be replaced with an away game with ASU," Rowlee wrote.

The letters were first obtained by the Arkansas Democrat-Gazette.

Rowlee said Miami has offered to play the game at Arkansas State in 2024 or beyond and is holding three dates -- Sept. 14, 2024, Sept. 13, 2025 and Sept. 20, 2025 -- for that purpose.

"Please inform UM by February 28, 2018, if one of those dates is acceptable to ASU," Rowlee wrote. "If no response is received by February 28, 2018, UM will lift the holds and schedule games with other institutions for those dates."

Team spokesman Tom Symonds on Tuesday provided Local10.com with a statement from James.

"I am aware of Arkansas State's position on this matter," James said in the statement. "We believe strongly in our standing and will not comment further as both parties' attorneys bring this to resolution."

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