Florida Attorney General Ashley Moody considering action in FSU's ongoing lawsuit with the ACC

The state of Florida is weighing action against the Atlantic Coast Conference in support of Florida State's legal battle against the conference.

Florida Attorney General Ashley Moody penned a letter on April 17th to the attorney generals of six states with member schools in the ACC, California, Georgia, Kentucky, Pennsylvania, South Carolina and Virginia.

In her letter, she stated that Florida is "considering taking action" in FSU's appeal against the ACC in North Carolina court.

FSU sued the ACC in December over its media rights deal and the exorbitant penalty they said it would cost to jump ship. The ACC filed a lawsuit on Dec. 21 against FSU claiming that "Florida State explicitly agreed that it would not 'take any action, or permit any action to be taken by others subject to its control ... that would affect the validity and enforcement' of the Grant of Rights."

On Thursday, April 4, Judge Louis A. Bledsoe ruled the North Carolina case could proceed and also denied FSU's motion to stay the case.

This isn't the first time that Moody has addressed the case, as in January she asked the ACC for copies of the ESPN agreement, a contract that has been shrouded in secrecy during the trial. In Monday, April 22 hearing, FSU's legal team said that the Attorney General has yet to receive the documents.

In her letter to the six Attorney Generals, Moody said that the next step for the state of Florida would be to take action in FSU's case with the ACC in North Carolina, with her primary concern centered around sovereign immunity, which protects states and state entities from legal action.

Moody wrote the North Carolina judge ruled that FSU waived its sovereign immunity against being sued due to its membership with the ACC, who is a private entity in North Carolina.

She addressed the six other states in her letter and warned them that they could experience something similar in the future, encouraging the Attorney Generals to reach out to their member schools and discuss it. Moody also looked for support from the other states in Florida's efforts to support FSU in the lawsuit.

The full letter, published by Warchant.com and the Tampa Bay Times, reads.

Dear Attorneys General Bonta, Carr, Coleman, Henry, Miyares & Wilson:

I have attached to this letter an order that my office recently became aware of in the ACC Lawsuit referred to above. I would direct each of your attention to pages thirty-two through forty-two of that decision, where a trial court in the State of North Carolina concluded that Florida State University (“FSU”) waived its sovereign immunity to be sued in the State of North Carolina by belonging to the Atlantic Coast Conference (the “ACC”). All of you have public universities that are members of the ACC. You each have other higher education institutions that belong to similar unincorporated sports associations. Indeed, there are countless similar organizations at every level of our states and local governments to which state and local officers are involved. It is because of the potential breadth and impact of the trial court’s claimed waiver of sovereign immunity that I write to each of you.

The potential impact of the ACC Lawsuit could subject FSU to a loss of more than a half of a billion dollars. Any waiver of sovereign immunity, especially one of such a magnitude by a state entity, should require an especially clear waiver of its sovereign immunity. Indeed, settled law for more than fifty years suggested exactly that when it came to sovereign immunity. See Edelman v. Jordan, 415 U.S. 651, 673 (1974). In Edelman, the Supreme Court unambiguously stated that “[c]onstructive consent is not a doctrine commonly associated with the surrender of constitutional rights, and we see no place for it here. In deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find waiver only where stated ‘by the most express language or by such overwhelming implications from the text as (will) leave no room for any other reasonable construction.”” Id. (citations omitted) (emphasis added).

Except for Clemson University, it appears that public institutions from each of your states (other than South Carolina) voted for the filing of the ACC Lawsuit in North Carolina. I am sure that those involved in that decision did not consult with you or likely even your office. For all I know, the ACC or its lawyers may have not even explained the future implications of their act or the ramifications that could flow to those institutions if that position was adopted by a court. I also understand that conference realignment has become contentious and is highly charged. Each of our states has some university that will likely be significantly affected from the shakeout of the latest round of consolidation, and I recognize and appreciate that the fans for each school are extremely passionate. But, positions such as the waiver of sovereign immunity position being advanced by the ACC are detrimental to all of our states. If the history of college football realignment has taught us anything at this point, it is that there will be some future realignment down the road. The universities that have ratified such an expansive view of the waiver of sovereign immunity in the ACC Lawsuit may find that the sword that they now wield will be turned on them. More than that, those schools may find that their future decisions and actions are now subject to resolution in some other state than where they are located based on their position in this suit. Finally, if being member of an association and participating in meetings waives sovereign immunity, then sovereign immunity, as contained in the U.S. Constitution, our state constitutions, and our state statutes may not be the protection that we all have believed that it is.

If you see the same risks as I do in the ACC Lawsuit, I ask that you or your staff engage with your universities. FSU is appealing the trial court’s decision in the ACC Lawsuit. Florida is considering taking action in that appeal. If you are interested in becoming involved in those efforts, please let me or my Chief Deputy, John Guard know. John’s telephone number is 850-544-8303.

Sincerely,

Ashley Moody

Florida Attorney General

This article originally appeared on Tallahassee Democrat: FSU gains support from Florida Attorney General in lawsuit against ACC