Greg Cote: Hurricanes' family-first mentality is worth defending in court … even if it costs them $650KFebruary 14, 2018 9:31pm

Feb. 14-- Arkansas State University looks outrageously tone-deaf in threatening to sue the University of Miami for canceling that September football game due to Hurricane Irma. Their lawyers are waving a contract in demanding UM pay a $650,000 penalty-and yes, legally, they have an argument-but Arkansas State is so on the wrong side of this morally that it loses even if it wins. And Miami wins even if it loses for having had the compassion to make a decision that put family ahead of football.

To a major-college program $650K is not an onerous amount. The Hurricanes could pay by Thursday's contractual deadline, avoid a court case and make this mess disappear. But the school is right to fight on principle. Arkansas State's threat of legal action smells like civil extortion.

At the crux of the possible litigation is a "Force Majeure" provision of the contract the two schools signed in 2013 to play this past Sept. 9-just as massive Category 4 Irma was about to strike South Florida. (Force Majeure is legalese for unforeseeable circumstances that prevent someone from fulfilling a contract. I'm married to a lawyer. They actually talk like that. It's funny.)

So the canceling party owes the other side $650,000 unless there is Force Majeure, a.k.a. a pretty damned good excuse why you had to cancel.

This story fascinates because there is strong argument on both sides: Arkansas State's letter of the law vs. Miami's family-first common sense.

Contractually, no penalty is due if one side cancels "in the event that it becomes impossible to play such game(s) by reason of unforeseen catastrophe or disaster." Clearly, a major hurricane would qualify. But Arkansas State argues it was not "impossible" for UM to play a game 1,100 miles away from where the hurricane was heading. Even coach Mark Richt admitted at the time that "logistically," UM likely could have played the game as scheduled.

But Richt also said: "Our number one goal was the safety of everybody. That's why we made the decision early not to play the game. I didn't want to have a team in Arkansas while all heck is breaking loose with everybody's family. I didn't want my players to look at me, like, 'Coach, why are we here? What are we doing here?' "

Richt wanted to give his players and staff the chance to be with family and evacuate South Florida or ride out the storm if they chose-not be half a country away playing a game. (As it turned out we got lucky with Irma, dodged the brunt of it when it veered west at the last moment. Still, when UM made its decision the killer storm seemed headed right for us. I have been through the threat of a dozen major hurricanes as a lifelong Floridian, and have never been more worried than I was as Irma barreled in.)

That decision by Richt was emotional, understandable, from-the-heart reasoning that felt right at gut level.

Arkansas State-apparently unconcerned that from a public-relations standpoint it comes off as petty and callous-argues that Miami should have traveled to play despite Irma's threat back home.

Miami has principle and heart on its side. The court might still rule Arkansas State is right.

"We strongly believe in our standing," UM athletic director Blake James said in an email to the Miami Herald, adding he'd have no additional comment "as both parties' attorneys bring this to resolution."

A lawyer buddy of mine suggested Miami might be at a disadvantage in court unless it could prove it would have been in danger by traveling. He said his advice to UM would be to try to settle the dispute and avoid a court case by offering half the amount and a future game.

The Davie Police Department provided these aerial shots of some of the damage and flooding in Davie, Fla., as a result of Hurricane Irma.

The comical aside in all of this is the idea that some loony fans in northeast Arkansas believe Miami canceled because it was afraid of playing their team. Dear Loons: Miami beat you 41-20 when last the schools met. The Canes were 10-3 in a Power 5 conference this season and ended ranked No. 13 in the nation while you were going 7-5 in the minor Sun Belt. UM wanting to avoid Arkansas State would be like a lion running scared from an antelope.

Arkansas State vs. Miami was a football game that became a legal fight and is down to the lawyers now because nothing is clear-cut or inarguable here.

It is obvious why the Dolphins had to postpone their Sept. 10 NFL home opener because of Irma. It is not as obvious why UM needed to cancel its road game.

It might distill to this:

The Canes could have made that trip, but that does not mean they should have.

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ABOUT THE WRITER

Greg Cote is a columnist for the Miami Herald.

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(c)2018 Miami Herald

Visit Miami Herald at www.miamiherald.com

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