By: Sophie Edbrooke
Eight football players and their parents have sued the Big Ten Conference to invalidate the conference’s decision to postpone the season and award monetary damages. As this lawsuit continues, the plaintiff class could grow because other parents and students have criticized the decision by the conference to cancel the fall season. The Big Ten is not the first of the “Power Five” conferences to postpone the season, but it is the first, and only conference, facing a lawsuit.
When a matter or decision would ‘reduce the number of sporting events in a member’s schedule,’ the Big Ten’s own guidelines require a vote with at least 60% of leaders from the 14 member universities in support of the reduction. The students did not believe the Big Ten followed these guidelines and even cited public statements from member presidents asking whether a formal vote took place. On August 31, however, the Big Ten released the vote tally, which demonstrated that it surpassed the 60% requirement.
Even though the vote appears to comply with the Big Ten’s guidelines, the courts are not eager to dismiss the case. Nebraska’s Attorney General, Doug Peterson, sent a letter to the Commissioner requesting all documents pertaining to the vote to confirm that the conference “operated in compliance with Nebraska Law.”
If the Court finds the vote invalid and continues to try the case, it is important to note players are asking for specific performance of a season. Specific performance only happens when damages are incalculable — which it could be if these players had the potential to be a top draft pick. However, a court rarely awards positive specific performance, and it is even less likely that a court would force students to play football in a pandemic.
Realistically, the Big Ten Conference has far more power in this lawsuit and may succeed in getting the case dismissed if the documents released show a valid vote. However, the Big Ten is also considering moving the beginning of the season to mid-October in the hopes of appeasing the students and still providing them the opportunity to display their skills before the NFL Draft.
So, if the Court
finds the vote to be fraudulent and the students are not satisfied with a
mid-October start, what can the Court actually do? The Big Ten’s best defense
to this lawsuit is that damages are too speculative. Speculative damages are
damages that a plaintiff claims are losses that may occur in the future but
often cannot be recovered. The students are suing on the grounds that they will
lose out on NFL picks, marketing opportunities, and high-grossing salaries — in
a section of the Complaint called “Tortious Interference with Business
Expectancies” — but they most likely cannot prove those numbers with the
necessary degree of accuracy. The most plausible outcome is the Court
requiring the Big Ten to reimburse students for any expenses that they incurred
over the summer while complying with relevant health guidelines.
 Emily Giambalvo, Eight Nebraska Football Players Sue Big Ten Over Conference’s Decision to Cancel Fall Season, The Washington Post (Aug. 27, 2020, 4:51 PM), https://www.washingtonpost.com/sports/2020/08/27/nebraksa-football-players-sue-big-ten/.
 Zack Budryk, Nebraska Football Players Suing Over Postponed Season, The Hill (Aug. 27, 2020, 3:04 PM), https://thehill.com/regulation/court-battles/513989-nebraska-football-players-suing-over-postponed-season; see also Kevin Warren, An Open Letter to the Big Ten Community, B1G (Aug. 19, 2020, 5:56 PM), https://bigten.org/news/2020/8/19/general-an-open-letter-to-the-big-ten-community.aspx.
 Budryk, supra note 2.
 Complaint ¶ 20, Snodgrass v. The Big Ten Conference, Inc., No. CI20-3086 (D. Neb. Aug. 27, 2020).
 Adam Rittenberg, Eight Nebraska Football Players Sue Big Ten Over Conference’s Decision to Cancel Fall Season, ESPN (Aug. 27, 2020), https://www.espn.com/college-football/story/_/id/29753789/eight-nebraska-football-players-sue-big-ten-decision-postpone-season.
 Nate McHugh, Big Ten Releases Vote Tally and Issues Another Statement on Nebraska Players’ Lawsuit, SBNation Corn Nation (Aug. 31, 2020, 7:00 PM), https://www.cornnation.com/2020/8/31/21409577/big-ten-releases-vote-tally-and-issues-another-statement-on-nebraska-players-lawsuit.
 Heather Dinich & Paula Lavigne, Nebraska Attorney General Doug Peterson Questions Big Ten on Legality of Football Postponement, ESPN (Sept. 11, 2020), https://www.espn.com/college-football/story/_/id/29863599/nebraska-attorney-general-doug-peterson-questions-big-ten-legality-football-postponement.
 See id. (finding that if the Court does invalidate the vote, then the Big Ten Conference will play the season as normal).
 Pingley v. Brunson, 252 S.E.2d 560, 561 (1979) (“The idea of compelling a close personal association over a protracted period of time . . . [is] repugnant to courts facing the situation.”).
 See Brandon Brown, Is the Big Ten Eyeing a Mid-October Return?, Sports Illustrated (Sept. 10, 2020), https://www.si.com/college/michigan/football/michigan-football-jim-harbaugh-ohio-state-buckeyes-ryan-day-james-franklin-penn-state-big-ten-president-mark-schlissel-season-postponed-cancelled-covid-19 (quoting Ohio State head coach Ryan Day: “However, we still have an opportunity to give our young men what they have worked so hard for: a chance to safely compete for a national championship this fall.”).
 Complaint ¶ 34-35, Snodgrass v. The Big Ten Conference, Inc., No. CI20-3086 (D. Neb. Aug. 27, 2020).
 Giambalvo, supra note 1.