ATL. COAST CONF. v. CLEMSON UNIV., 2024 NCBC 44

STATE OF NORTH CAROLINA
MECKLENBURG COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
24CV013688-590
ATLANTIC COAST CONFERENCE,
Plaintiff,
v.
CLEMSON UNIVERSITY,
Defendant.
ORDER AND OPINION ON
DEFENDANT CLEMSON
UNIVERSITY’S MOTION TO DISMISS
AND MOTION TO STAY UNDER
N.C.G.S. § 1-75.12
1. 	THIS MATTER is before the Court upon Defendant Clemson University’s
(“Clemson”) (i) Motion to Dismiss1 pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6)
of the North Carolina Rules of Civil Procedure (the “Rule(s)”), and (ii) Motion to Stay
Under N.C.G.S. § 1-75.12 (the “Motion to Stay”; together with the Motion to Dismiss,
the “Motions”),2 filed on 6 May 2024 in the above-captioned case.
2. 	Having considered the Motions, the parties’ briefs in support of and in
opposition to the Motions, the Complaint,3 the appropriate evidence of record on
Clemson’s Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(2) and Clemson’s
Motion to Stay, and the arguments of counsel at the hearing on the Motions, the
Court, for the reasons set forth below, hereby GRANTS in part and DENIES in
part the Motion to Dismiss and, in its discretion, DENIES the Motion to Stay.
1 (Def. Clemson Univ.’s Mot. Dismiss [hereinafter “Def.’s Mot. Dismiss”], ECF No. 15.)
2 (Def. Clemson Univ.’s Mot. Stay Under N.C.G.S. § 1-75.12 [hereinafter “Def.’s Mot. Stay”],
ECF No. 17.)
3 (Compl., ECF Nos. 3 (sealed), 4 (public redacted), 7.1 (sealed), 7.2 (public redacted).)
Atl. Coast Conf. v. Clemson Univ., 2024 NCBC 44.

Womble Bond Dickinson (US) LLP, by James P. Cooney, III, Sarah
Motley Stone, and Patrick Grayson Spaugh, for Plaintiff Atlantic Coast
Conference.
Parry Law, PLLC, by K. Alan Parry and Neil A. Reimann, Ropes & Gray
LLP, by John Paul Bueker, and Nelson Mullins Riley & Scarborough
LLP, by Axton Crolley, David Dukes, and B. Rush Smith III, for
Defendant Clemson University.
Bledsoe, Chief Judge.
I.
FACTUAL AND PROCEDURAL BACKGROUND
3. 	The Court does not make findings of fact on the Motions. Rather, the Court
recites the allegations asserted and documents referenced in the Complaint that are
relevant to the Court’s determination of the Motions.4
4. 	Plaintiff Atlantic Coast Conference (the “ACC” or the “Conference”) is a
North Carolina unincorporated nonprofit association under Chapter 59B of the North
Carolina General Statutes created to “enrich and balance the athletic and educational
experiences of student-athletes at its member institutions[,] to enhance athletic and
academic integrity among its members, to provide leadership, and to do this in a spirit
4 The Court notes that many of the factual allegations in the ACC’s Complaint are identical
or very similar to allegations in the ACC’s first amended complaint against the Board of
Trustees of Florida State University (“FSU”) in Civil Action No. 23 CVS 40918 (Mecklenburg
County, North Carolina) (the “FSU Action”), which is also pending before this Court. As a
result, the Court’s recitation of the relevant factual background in this Order and Opinion is
very similar, and sometimes identical, to the Court’s discussion in its 4 April 2024 Order and
Opinion resolving FSU’s Motion to Dismiss or, in the Alternative, Stay the Action (“FSU’s
Motion to Dismiss or Stay”) in the FSU Action (the “FSU Order”). See Atl. Coast Conf. v. Bd.
of Trs. of Fla. State Univ. (FSU Order), 2024 NCBC LEXIS 53, at *3–9 (N.C. Super. Ct. Apr.
4, 2024).

of fairness to all.”5 	The ACC currently has fifteen members (each a “Member” or
“Member Institution”; collectively, the “Members” or “Member Institutions”)6 and is
governed by a Board of Directors. 	The “most senior executive officer of [each]
Member[ ]” serves as a Director on the ACC Board,7 and “each Director shall have
the right to take any action or any vote on behalf of the Member it represents[.]”8
Clemson has been a Member of the ACC since the ACC’s founding in 1953.9
5. 	On 8 July 2010, the ACC entered into a Multi-Media Agreement (the “2010
Multi-Media Agreement”) with ESPN, Inc. and ESPN Enterprises, Inc. (together,
“ESPN”), granting ESPN exclusive distribution rights to certain ACC Member
Institution sporting events in exchange for specified payments.10 The ACC Board of
Directors, 	including 	Clemson’s 	then-President, 	unanimously 	approved 	this
agreement.11
5 (Compl. ¶¶ 1, 35 (quoting Compl. Ex. 1 § 1.2.1 [hereinafter “ACC Const.”], ECF Nos. 3
(sealed), 4 (public unredacted), 7.1 (sealed), 7.2 (public unredacted)).)
6 (See Compl. ¶ 1.) 	The current ACC Members, with their year of admission to the
Conference, are: Clemson University (1953), Duke University (1953), the University of North
Carolina at Chapel Hill (1953), North Carolina State University (1953), the University of
Virginia (1953), Wake Forest University (1953), the Georgia Institute of Technology (1978),
Florida State University (1991), the University of Miami (2004), Virginia Polytechnic
Institute and State University (2004), Boston College (2005), the University of Notre Dame
(excluding football and ice hockey) (2013), the University of Pittsburgh (2013), Syracuse
University (2013), and the University of Louisville (2014). (See Compl. ¶¶ 1, 29–33.)
7 (ACC Const. § 1.5.1.2; see Compl. ¶¶ 1, 37.)
8 (ACC Const. § 1.5.1.1; see Compl. ¶¶ 1, 37.)
9 (See Compl. ¶¶ 10, 29.)
10 (See Compl. ¶¶ 15 n.4, 39–40.)
11 (See Compl. ¶ 39.)

6. 	In 2012, “collegiate athletic conferences began to experience significant
instability and realignment[.]”12 	The ACC was no exception. 	Late that year, the
University of Maryland announced its withdrawal from the ACC. Shortly thereafter,
the ACC elected to add four new Member Institutions.13 	During this same period,
the ACC Board, including Clemson’s then-President, voted to significantly increase
the amount a Member must pay if it chose to leave the Conference “to more
appropriately 	compensate 	the 	Conference 	for 	some 	of 	the 	potential 	losses[ ]”
associated with the Member’s withdrawal.14 	It was against this backdrop in 2013
that the ACC and ESPN agreed to an extension of the 2010 Multi-Media Agreement
through 2027.15
7. 	“[I]n order to secure a long-term media rights agreement and thus ensure
the payment of predictable sums over time,” the current and incoming ACC Member
Institutions, including Clemson, entered into an Atlantic Coast Conference Grant of
Rights Agreement (the “Grant of Rights”) with the ACC in April 2013.16 Under the
Grant of Rights,
each 	of 	the 	Member 	Institutions 	is 	required 	to, 	and 	desires 	to,
irrevocably grant to the Conference, and the Conference desires to
12 (Compl. ¶ 53.)
13 (See Compl. ¶ 52.) The four new Members were the University of Notre Dame (excluding
football and ice hockey), the University of Pittsburgh, Syracuse University, and the
University of Louisville.
14 (Compl. ¶ 45; see also Compl. ¶¶ 44, 46–59.)
15 (See Compl. ¶¶ 41, 52.)
16 (Compl. ¶¶ 54, 55; see Compl. ¶¶ 63–67; Compl. Ex. 2 [hereinafter “Grant of Rights”], ECF
Nos. 3 (sealed), 4 (public unredacted), 7.1 (sealed), 7.2 (public unredacted).)

accept from each of the Member Institutions, those rights granted
herein[:]
. . . .
1. 	Grant of Rights. 	Each of the Member Institutions hereby (a)
irrevocably 	and 	exclusively 	grants 	to 	the 	Conference 	during 	the
Term . . . all 	rights 	(the 	“Rights”) 	necessary 	for 	the 	Conference 	to
perform the contractual obligations of the Conference expressly set forth
in the ESPN Agreement, regardless of whether such Member Institution
remains a member of the Conference during the entirety of the Term[.]
. . . .
5. 	Term. The “Term” of this Agreement shall begin on the Effective
Date and shall continue until June 30, 2027.
. . . .
6. 	Acknowledgements, 	Representations, 	Warranties, 	and
Covenants. 	Each of the Member Institutions acknowledges that the
grant of Rights during the entire Term is irrevocable and effective until
the end of the Term regardless of whether the Member Institution
withdraws from the Conference during the Term or otherwise ceases to
participate as a member of the Conference in accordance with the
Conference’s 	Constitution 	and 	Bylaws. . . . Each 	of 	the 	Member
Institutions covenants and agrees that . . . it will not take any action, or
permit any action to be taken by others subject to its control, including
licensees, or fail to take any action, that would affect the validity and
enforcement 	of 	the 	Rights 	granted 	to 	the 	Conference 	under 	this
Agreement.17
8. 	The 	ACC 	negotiated 	a 	Second 	Amendment 	to 	the 	2010 	Multi-Media
Agreement in 2014, incorporating the ACC’s new Members and increasing the fees
paid to the Conference, which were then distributed to the Member Institutions,
including Clemson.18 In 2016, the ACC “sought to generate additional revenue for its
17 (Grant of Rights 1, ¶¶ 1, 5, 6; see Compl. ¶¶ 60, 62.)
18 (See Compl. ¶¶ 69–72; Compl. Ex. 3, ECF Nos. 3 (sealed), 7.1 (sealed).)

Members through a network partnership with ESPN[ ]” that would “establish the
ACC Network, broadcast more ACC events, and share in the revenues of this new
network.”19 To this end, the ACC and ESPN negotiated two new agreements in 2016:
an Amended and Restated ACC-ESPN Multi-Media Agreement and an ACC-ESPN
Network Agreement (together, the “ESPN Agreements”).20
9. 	ESPN, however, conditioned its participation in the ESPN Agreements on
each Member Institution’s agreement to extend the term of the Grant of Rights.21
After numerous Board and other meetings, the ACC Members, including Clemson,
executed a 2016 Amendment to ACC Grant of Rights Agreement with the ACC (the
“Amended Grant of Rights”; together with the Grant of Rights, the “Grant of Rights
Agreements”) on 18 July 2016 that, according to the ACC, extended the term from 30
June 2027 to 30 June 2036.22 	The ESPN Agreements were executed a few days
later.23 	With the execution of the Amended Grant of Rights and the ESPN
Agreements, the ACC hoped to provide its Member Institutions with “a predictable
and substantial source of revenue[ ]”24 that would “stabilize the [C]onference long
19 (Compl. ¶ 74.)
20 (Compl. ¶¶ 75–81; see Compl. Ex. 5 [hereinafter “2016 Multi-Media Agreement”], ECF Nos.
3 (sealed), 7.1 (sealed); Compl. Ex. 6 [hereinafter “ACC Network Agreement”], ECF Nos. 3
(sealed), 7.1 (sealed).)
21 (See Compl. ¶ 83; Compl. Ex. 7 at 1 [hereinafter “Am. Grant of Rights”], ECF Nos. 3
(sealed), 4 (public unredacted), 7.1 (sealed), 7.2 (public unredacted).)
22 (See Compl. ¶¶ 82, 86, 90–105; Am. Grant of Rights ¶ 2.)
23 (Compl. ¶ 75; see 2016 Multi-Media Agreement 1; ACC Network Agreement 1.)
24 (Compl. ¶ 89.)

term.”25 Since the execution of the Grant of Rights in 2013, Clemson’s distributions
from the ACC have, in fact, “more than doubled[.]”26
10. 	But collegiate athletics has experienced continued instability, with several
schools changing their conference affiliations over the last few years.27 In response
to this volatility, “the Conference endorsed the concept of distributing a larger share
of post-season revenues to the Members that generated those revenues[ ]” in mid-
2023.28 	Yet this policy change proved insufficient to insulate the ACC from the
instability affecting other collegiate athletics conferences.
11. 	On 21 December 2023, the ACC filed a complaint for declaratory judgment
in 	Mecklenburg 	County 	Superior 	Court 	against 	FSU, 	another 	ACC 	Member
Institution, seeking a declaration that the Grant of Rights Agreements are valid and
enforceable contracts.29 The next day, FSU initiated its own lawsuit against the ACC
in state court in Leon County, Florida, “challenging the validity of the [Grant of
Rights Agreements] along with a number of other claims[ ]” (the “Florida Action”).30
On 17 January 2024, the ACC filed its first amended complaint against FSU in North
25 (Compl. ¶ 77 (quoting Brett McMurphy & David M. Hale, ACC, ESPN Partner for New
Conference Channel, ESPN.com News Servs. (June 21, 2016), https://www.espn.com/college-
sports/story/_/id/17102933/acc-espn-agree-20-year-rights-deal-lead-2019-launch-acc-
network (quoting James Clement, then-President of Clemson University)).)
26 (Compl. ¶ 108.)
27 (See Compl. ¶¶ 110–12.)
28 (Compl. ¶ 113.)
29 (See Compl. ¶ 115.)
30 (Compl. ¶ 116.)

Carolina, alleging “damages for breaches of the Grant of Rights [Agreements], the
ACC Constitution and Bylaws, and injunctive relief for breach of FSU’s fiduciary
duties to the Conference[,]” in addition to the same two declaratory judgment claims
asserted in its original complaint.31
12. 	While these parallel actions were pending, the ACC alleges that “Clemson
indicated a desire to work with the Conference regarding its own membership in the
Conference and requested assurances of confidentiality and protections that the ACC
would not file suit against it.”32 The ACC avers that it “agreed to work with Clemson,
seeking a business solution rather than resorting to litigation.”33 	According to the
ACC, “[w]hile these assurances were being documented, and without provocation by
the ACC,”34 Clemson initiated litigation against the ACC on 19 March 2024 by filing
suit in Pickens County, South Carolina, seeking a declaration regarding the scope of
the Grant of Rights Agreements, the enforceability of the withdrawal payment
provision in the ACC’s Constitution, and whether it owes the ACC fiduciary duties
(the “South Carolina Action”).35 	The ACC initiated this lawsuit in Mecklenburg
31 (Compl. ¶ 117.)
32 (Compl. ¶ 118.)
33 (Compl. ¶ 118.)
34 (Compl. ¶ 119.)
35 (See Compl. ¶ 119; Compl. Ex. 8 ¶¶ 92–105 [hereinafter “S.C. Compl.”], ECF Nos. 3 (sealed),
4 (public redacted), 7.1 (sealed), 7.2 (public redacted).) 	Clemson subsequently filed an
amended complaint in the South Carolina Action on 17 April 2024, adding factual allegations,
three additional declaratory judgment claims, and a claim for slander of title. (See generally
Def. Clemson Univ.’s Br. Supp. Mot. Stay Ex. B [hereinafter “S.C. Am. Compl.”], ECF No.
18.3.)

County Superior Court the following day.36 	The case was designated a mandatory
complex business case by the Chief Justice of the Supreme Court of North Carolina37
and assigned to the undersigned on 21 March 2024.38
13. 	The following day, the Court held a hearing on FSU’s Motion to Dismiss or
Stay in the FSU Action.39 On 4 April 2024, the Court entered the FSU Order in which
it granted FSU’s motion to dismiss the ACC’s breach of fiduciary duty claim, but
otherwise denied FSU’s motion to dismiss, including FSU’s argument that this Court
lacked personal jurisdiction over FSU on sovereign immunity grounds, and denied
FSU’s motion to stay. See FSU Order, 2024 NCBC LEXIS 53, at *80. FSU appealed
the Court’s denial of FSU’s motion to dismiss on sovereign immunity grounds on 9
April 2024,40 and, on 10 May 2024, the Court stayed all proceedings in the FSU
Action, including discovery, “by operation of N.C.G.S. § 1-294 pending the final
resolution of the appeal of the Court’s Rule 12(b)(2) ruling in the [FSU] Order or until
otherwise ordered by the Court.” 	Atl. Coast Conf. v. Bd. of Trs. of Fla. State Univ.,
2024 NCBC LEXIS 68, at *10–11 (N.C. Super. Ct. May 10, 2024).
36 (See Compl. 1.)
37 (Designation Order, ECF No. 1.)
38 (Assignment Order, ECF No. 2.)
39 (See Atl. Coast Conf. v. Bd. of Trs. of Fla. State Univ., No. 23 CVS 40918, Am. Notice
Hearing & BCR 9.3 Case Mgmt. Conf., ECF No. 27.)
40 (See Atl. Coast Conf. v. Bd. of Trs. of Fla. State Univ., No. 23 CVS 40918, Notice Appeal,
ECF No. 60.)

14. 	On 6 May 2024, Clemson timely filed the Motion to Dismiss, seeking to
dismiss the ACC’s Complaint under Rules 12(b)(1), 12(b)(2), and 12(b)(6)41 and
contending that Clemson and FSU are “situated differently . . . both with respect to
the propriety of proceeding in this Court and the fundamental nature of the claims at
issue[ ]” such that “the basis for [the] claims that the ACC brought against FSU and
the related arguments on motions should have little bearing in this case.”42 	At the
same time, Clemson also filed a Motion to Stay this action in favor of its first-filed
action against the ACC in South Carolina, arguing again that “the analysis here is
different[ ]” from the analysis presented by the FSU Action.43
15. 	After full briefing, the Court held a hearing on the Motions on 2 July 2024,
at which both parties were represented by counsel. 	The Motions are now ripe for
resolution.
II.
CLEMSON’S MOTION TO DISMISS PURSUANT TO RULES
12(b)(2) AND 12(b)(6) FOR LACK OF PERSONAL JURISDICTION
41 (See Def.’s Mot. Dismiss ¶¶ 1–6.) While Clemson seeks the dismissal of all claims for lack
of personal jurisdiction under Rule 12(b)(2) on sovereign immunity grounds, it does not
otherwise seek the dismissal of the ACC’s claim for a declaratory judgment concerning the
validity of the withdrawal payment provision of the ACC’s Constitution under Rule 12 (the
ACC’s third claim for relief).
42 (Def. Clemson Univ.’s Br. Supp. Mot. Dismiss 1 [hereinafter “Br. Supp. Def.’s Mot.
Dismiss”], ECF No. 16.)
43 (Def. Clemson Univ.’s Br. Supp. Mot. Stay 1 [hereinafter “Br. Supp. Def.’s Mot. Stay”], ECF
No. 18.)

16. 	Clemson first argues that, under Rules 12(b)(2) and 12(b)(6), it cannot be
sued in North Carolina because Clemson has not waived its sovereign immunity
except within the boundaries of the State of South Carolina pursuant to article X,
section 10 and article XVII, section 2 of the South Carolina Constitution and S.C.
Code Ann. §§ 15-77-50, -78-30(e).44
A. 	Legal Standard
17. 	As this Court recently explained in the FSU Order, the appropriate Rule for
consideration of a motion to dismiss on the grounds of sovereign immunity has been
somewhat unsettled in North Carolina. 	See FSU Order, 2024 NCBC LEXIS 53, at
*11–12 (collecting cases). 	Our Court of Appeals, however, recently clarified that an
assertion of “[sovereign] immunity should be classified as an issue of personal
jurisdiction under Rule 12(b)(2).” 	Torres v. City of Raleigh, 288 N.C. App. 617, 620
(2023). 	Accordingly, the Court will construe the Motion to Dismiss on sovereign
immunity grounds as an issue of personal jurisdiction under Rule 12(b)(2).
18. 	“The standard of review to be applied by a trial court in deciding a motion
under Rule 12(b)(2) depends upon the procedural context confronting the court.” Id.
(quoting Banc of Am. Sec. LLC v. Evergreen Int’l Aviation, Inc., 169 N.C. App. 690,
693 (2005)). Where, as here,
neither 	party 	submits 	evidence 	[on 	personal 	jurisdiction], 	the
allegations of the complaint must disclose jurisdiction although the
particulars of jurisdiction need not be alleged. 	The trial judge must
decide whether the complaint contains allegations that, if taken as true,
set 	forth 	a 	sufficient 	basis 	for 	the 	court’s 	exercise 	of 	personal
jurisdiction.
44 (See Def.’s Mot. Dismiss ¶ 1; Br. Supp. Def.’s Mot. Dismiss 5–6.)

Parker v. Town of Erwin, 243 N.C. App. 84, 96 (2015) (cleaned up).45
B. 	Analysis
19. 	As 	the 	Court 	explained 	in 	the 	FSU 	Order, 	prior 	to 	2019, 	sovereign
“immunity [was] available only if the forum State ‘voluntar[ily]’ decide[d] ‘to respect
the dignity of the [defendant State] as a matter of comity.’ ” 	Franchise Tax Bd. of
Cal. v. Hyatt (Hyatt III), 587 U.S. 230, 236 (2019) (second and fourth alterations in
original) (quoting Nevada v. Hall, 440 U.S. 410, 416 (1979)). But the United States
Supreme Court expressly overruled Nevada v. Hall in Hyatt III, holding that the
United States Constitution does not “permit[ ] a State to be sued by a private party
without its consent in the courts of a different State.” Id. at 233. The Supreme Court,
however, did not explain what form this “consent” must take in Hyatt III. Three years
later, the Supreme Court of North Carolina took up this unanswered question in
Farmer v. Troy University, 382 N.C. 366 (2022).
20. 	The ACC contends that Farmer controls and establishes that Clemson, just
like FSU, has expressly consented to suit in the courts of the State of North
Carolina.46 	Clemson argues in opposition, however, that “the waiver of sovereign
45 To the extent Clemson seeks dismissal on sovereign immunity grounds under Rule 12(b)(6),
the standard of review under Rule 12(b)(6) is the same as the analysis the Court conducts
under Rule 12(b)(2) when neither party presents evidence of personal jurisdiction. Compare
Corwin v. Brit. Am. Tobacco, PLC, 371 N.C. 605, 615 (2018) (“[T]he Court considers whether
the allegations of the complaint, if treated as true, are sufficient to state a claim upon which
relief can be granted under some legal theory.” (quotation marks and citation omitted)), with
Parker, 243 N.C. App. at 96 (“The trial judge must decide whether the complaint contains
allegations that, if taken as true, set forth a sufficient basis for the court’s exercise of personal
jurisdiction.” (citation omitted)).
46 (See Pl.’s Br. Opp’n Def.’s Mot. Dismiss 5–13 [hereinafter “Br. Opp’n Def.’s Mot. Dismiss”],
ECF No. 31.)

immunity found in Farmer was based on unique facts that are not present here.”47
Because Farmer sets out the general framework for determining what constitutes
“consent” to suit in North Carolina post-Hyatt III, this Court must analyze the
allegations of the Complaint through the lens of Farmer to determine whether
Clemson has waived its sovereign immunity.
21. 	In Farmer, Troy University, an Alabama state institution, registered as a
nonprofit corporation with the North Carolina Secretary of State, leased an office
building in North Carolina, and employed Farmer to recruit military personnel in
North Carolina to take its online educational courses. See Farmer, 382 N.C. at 367.
After his employment was terminated, Farmer brought suit against Troy University
for various tort claims. 	Id. 	Shortly after the United States Supreme Court decided
Hyatt III, Troy University moved for dismissal based on sovereign immunity. Id. at
369.
22. 	The Alabama Constitution provides that “the State of Alabama shall never
be made a defendant in any court of law or equity.” 	Ala. Const. art. I, § 14. 	The
Supreme Court of North Carolina observed in Farmer that this immunity “extend[ed]
to [the State of Alabama’s] institutions of higher learning.” Farmer, 382 N.C. at 370
(second alteration in original) (quoting Ala. State Univ. v. Danley, 212 So. 3d 112, 122
(Ala. 2016)). 	Having then concluded that, “[u]nder Hyatt III and the United States
Constitution, as a general matter, Troy University is entitled to sovereign immunity
from suit without its consent in the state courts of every state in the country[,]” id. at
47 (Br. Supp. Def.’s Mot. Dismiss 11.)

371, our Supreme Court then set about determining whether Troy University had
consented to waive its sovereign immunity in North Carolina state court.
23. 	The Supreme Court began its analysis in Farmer by reiterating that “any
waiver of sovereign immunity must be explicit.” 	Id. 	As a registered nonprofit
corporation, Troy University was subject to the North Carolina Nonprofit Corporation
Act (the “NCNCA”), which contains the following sue and be sued clause:
(a) 	Unless its articles of incorporation or this Chapter provides
otherwise, every corporation . . . has the same powers as an individual
to do all things necessary or convenient to carry out its affairs, including
without limitation, power:
(1) 	To sue and be sued, complain and defend in its corporate
name[.]
N.C.G.S. § 55A-3-02(a)(1). Stressing that it was “crucial” to its “analysis that Hyatt
III did not involve a sue and be sued clause[,]” the Farmer Court instead looked to
Thacker v. Tennessee Valley Authority, 587 U.S. 218 (2019), another recent case in
which the United States Supreme Court addressed the effect of a sue and be sued
clause on sovereign immunity. Farmer, 382 N.C. at 372.
24. 	In Thacker, the United States Supreme Court explained that “[s]ue-and-be-
sued clauses . . . should be liberally construed[,]” noting that “[t]hose words in their
usual and ordinary sense . . . embrace all civil process incident to the commencement
or continuance of legal proceedings.” 	Thacker, 587 U.S. at 224 (citations and
quotation marks omitted). But, according to our Supreme Court in Farmer, Thacker
placed a limit on these types of clauses: “[A]lthough a sue and be sued clause allows
suits to proceed against a public corporation’s commercial activity, just as these
actions would proceed against a private company, suits challenging an entity’s

governmental activity may be limited.” 	Farmer, 382 N.C. at 372 (emphasis added)
(citing Thacker, 587 U.S. at 227). 	Our Supreme Court therefore concluded that,
“while Hyatt III . . . requires a State to acknowledge a sister State’s sovereign
immunity, Thacker recognizes that a sue and be sued clause can act as a waiver of
sovereign 	immunity 	when 	a 	state 	entity’s 	nongovernmental 	activity 	is 	being
challenged.” Id. (emphasis added).
25. 	Applying these principles to the facts in Farmer, our Supreme Court
determined that Troy University was engaged in commercial activity in North
Carolina—specifically, the marketing and selling of online educational programs—
rather than governmental activity. Id. at 373. Because Troy University knew that it
was subject to the NCNCA and its sue and be sued clause when it chose to do business
in North Carolina, “it explicitly waived its sovereign immunity.” Id.
26. 	Farmer found independent, additional support for Troy University’s waiver
of sovereign immunity in article 15 of the NCNCA, which requires a foreign
corporation operating in North Carolina to obtain a certificate of authority. 	Id. at
374. 	“A certificate of authority authorizes the foreign corporation . . . to conduct
affairs in this State[,]” N.C.G.S. § 55A-15-05(a), and gives the foreign corporation “the
same but no greater rights and . . . the same but no greater privileges as, and is
subject to the same duties, restrictions, penalties, and liabilities . . . imposed on, a
domestic corporation of like character[,]” id. § 55A-15-05(b). 	Our Supreme Court
separately concluded that, “[b]y requesting and receiving a certificate of authority to
do business in North Carolina, renting a building here, and hiring local staff, Troy

University, as an arm of the State of Alabama, consented to be treated like ‘a domestic
corporation of like character,’ and to be sued in North Carolina.” 	Farmer, 382 N.C.
at 374–75 (quoting id. § 55-15-05(b)).
27. 	As it did in the FSU Order, the Court shall now apply the framework created
by our Supreme Court in Farmer to determine whether, based on the allegations in
the Complaint and the current record, Clemson has consented to suit in North
Carolina and thereby waived its sovereign immunity for purposes of this action.
28. 	The Court begins with the presumption that the State of South Carolina
may not “be sued by a private party without its consent in the courts of [this] State.”
Hyatt III, 587 U.S. at 233. 	South Carolina has extended its sovereign immunity to
include its public universities, defining “State” as “the State of South Carolina and
any 	of 	its . . . institutions, 	including 	state-supported . . . schools, 	colleges, 	[and]
universities[.]” S.C. Code Ann. § 15-78-30(e). The Court therefore concludes that, “as
a general matter, [Clemson] is entitled to sovereign immunity from suit without its
consent in the state courts of every state in the country.” 	Farmer, 382 N.C. at 371.
The Court must now determine whether Clemson explicitly waived its sovereign
immunity to suit in North Carolina. 	This is the critical issue posed by Clemson’s
Motion to Dismiss all claims.
29. 	As an unincorporated nonprofit association, the ACC is governed by the
Uniform 	Unincorporated 	Nonprofit 	Association 	Act 	(the 	“UUNAA”),48 N.C.G.S.
§§ 59B-1 to -15, which contains the following sue and be sued clause: “A nonprofit
48 (See Compl. ¶¶ 1–2, 19.)

association, in its name, may institute, defend, intervene, or participate in a judicial,
administrative, or other governmental proceeding or in an arbitration, mediation, or
any other form of alternative dispute resolution[,]” id. § 59B-8(1).49 In addition, the
UUNAA expressly permits the ACC, as a North Carolina unincorporated nonprofit
association, and Clemson, as a Member of the ACC,50 to bring suit against each other:
“A member of, or a person referred to as a ‘member’ by, a nonprofit association may
assert a claim against or on behalf of the nonprofit association. 	A nonprofit
association may assert a claim against a member or a person referred to as a ‘member’
by the nonprofit association.” 	N.C.G.S. § 59B-7(e).51 	Because “a sue and be sued
clause 	can 	act 	as 	a 	waiver 	of 	sovereign 	immunity 	when 	a 	state 	entity’s
nongovernmental activity is being challenged[,]” Farmer, 382 N.C. at 372 (citing
Thacker, 587 U.S. at 227), the Court must next analyze Clemson’s activities in this
State and decide if they are of a commercial or governmental nature.
49 Although the language of the statute itself does not include the phrase “sue and be sued,”
the Official Comment affirmatively states that an unincorporated nonprofit association “may
sue and be sued.” Id. § 59B-8 off. cmt. ¶ 1.
50 (See Compl. ¶¶ 1–2.)
51 As the ACC notes, an unincorporated nonprofit association member’s consent to suit under
the UUNAA is narrower than that of both the unincorporated nonprofit association itself
under the UUNAA or a nonprofit corporation under the NCNCA. (See Br. Opp’n Def.’s Mot.
Dismiss 9.) 	The UUNAA is intended to protect “a nonprofit association’s members from
[vicarious] tort and contract liability based solely on membership status.” N.C.G.S. § 59B-7
N.C. cmt. ¶ 1. 	But “there are special circumstances that may result in liability[ ]” of a
member, such as when “a member . . . expressly become[s] a party to a contract with the
nonprofit association.” 	Id. off. cmt. ¶ 6. 	Thus, the UUNAA permits an unincorporated
nonprofit association and its members to assert claims against each other where, as here,
they are the parties to a contract, id. § 59B-7(e), “based on the other law of the jurisdiction[,]”
id. § 59B-7 off. cmt. ¶ 2 (“The [UUNAA] does not deal with liability of members . . . for their
own conduct.”).

30. 	Clemson 	first 	argues 	that 	the 	allegations 	in 	the 	Complaint 	are
distinguishable from the facts in Farmer that led our Supreme Court to conclude that
Troy University consented to suit in this State.52 Rather than take any “affirmative
steps to do business [in North Carolina,]” Clemson contends that it simply remained
a Member of the Conference when the ACC became an unincorporated nonprofit
association subject to the UUNAA in 2006.53 	Clemson argues that this “passive
behavior is distinctly different than the affirmative actions taken by Troy University
in Farmer.”54
31. 	The Court disagrees. The ACC alleges that since the ACC’s creation in 1953,
Clemson has engaged in “continuous and systematic membership and governance
activities” 	that 	“arise 	out 	of 	its 	membership 	in 	and 	management 	of 	the
Conference[.]”55 	For example, the President of Clemson is a member of the ACC’s
Board of Directors and “regularly attend[s] meetings held in the State of North
Carolina by the ACC.”56 	“Three of the four most recent in-person [ACC] Board of
Directors meetings were held in North Carolina[,]” and Clemson’s President attended
52 (See Br. Supp. Def.’s Mot. Dismiss 8–11.)
53 (Br. Supp. Def.’s Mot. Dismiss 9.)
54 (Br. Supp. Def.’s Mot. Dismiss 9.)
55 (Compl. ¶ 9; see also Compl. ¶ 10.)
56 (Compl. ¶ 10; see Compl. ¶¶ 11–12; Br. Opp’n Def.’s Mot. Dismiss Attach. 3, Aff. Brad
Hostetter, dated May 24, 2024, at ¶ 3 [hereinafter “Hostetter Aff.”], ECF No. 31.4 (averring
that Clemson’s President attended 48 out of 50 ACC Board meetings between 1 January 2007
and 31 December 2023).)

two of these meetings in person.57 	In addition, the ACC alleges that Clemson’s
Presidents, Athletic Directors, and Head Coaches have “played an active role in the
administration of ACC affairs[ ]” and lists in the Complaint the numerous Conference
leadership and committee positions held by these individuals over the past decade.58
Moreover, 	“Clemson’s 	[then-]President 	was 	the 	Chair 	of 	the 	ACC’s 	[Board 	of
Directors] 	when 	[the 	ESPN 	Agreements] 	were 	unanimously 	approved 	by 	the
Members.”59
32. 	The ACC also alleges that “Clemson frequently travels to North Carolina to
compete 	in 	ACC-sponsored 	and 	administered 	athletic 	events 	and 	athletic
competitions[.]”60 	For 	example, 	Clemson 	has 	competed 	in 	the 	ACC 	Football
Championship, held in Charlotte, North Carolina, seven times since 2005.61 Clemson
also regularly competes in the ACC’s Men’s and Women’s Basketball Tournaments,
57 (Compl. ¶ 12 (stating that the “Conference generally holds two meetings of the Board of
Directors per month, with three of these meetings held in person annually, often in North
Carolina[ ]”).)
58 (Compl. ¶ 11; see also Compl. ¶¶ 13 (indicating that the ACC Board of Directors, including
Clemson’s President, voted to relocate the Conference’s headquarters to Charlotte to secure
a $15 million financial incentive derived from North Carolina taxpayer dollars), 18
(describing Clemson’s participation in various ACC championship events held in North
Carolina), 49 (alleging Clemson’s then-President voted to increase the payment of a
withdrawing Member Institution to “3 times the Conference’s annual operating budget[ ]”),
55–68 (explaining the benefits of the Grant of Rights and Clemson’s then-President’s
execution thereof), 82–100 (explaining the benefits of the Amended Grant of Rights and
Clemson’s then-President’s execution thereof), 119 (alleging Clemson voted to approve the
ACC’s lawsuit against the University of Maryland to enforce the withdrawal payment).)
59 (Compl. ¶ 76; see also Compl. ¶¶ 17, 101–04 (alleging approval of the ESPN Agreements).)
60 (Compl. ¶ 18.)
61 (See Compl. ¶ 18.)

which have been held in North Carolina 25 times over the past three decades.62 Since
2007, Clemson’s football and men’s basketball teams have played a combined 91
games in North Carolina.63 Clemson has not sought to refute any of these allegations.
33. 	The ACC alleges that as a “collegiate academic and athletic conference[,]”64
its purpose is to “enrich and balance the athletic and educational experiences of
student-athletes at its member institutions[,] to enhance athletic and academic
integrity among its members, to provide leadership, and to do this in a spirit of
fairness to all.”65 More specifically, the ACC alleges that it seeks to provide “quality
competitive opportunities for student-athletes in a broad spectrum of amateur sports
and championships[,]” and ensure “responsible fiscal management and further
financial stability[ ]” by “[a]ddress[ing] the future needs of athletics” for the “mutual
benefit of the Members[.]”66
34. 	The ACC further avers that, historically, its main source of income has
consisted of the payments it receives in exchange for granting exclusive media rights
to broadcast athletic events and competitions involving athletes from ACC Member
Institutions.67 “By aggregating the Media Rights from each Member Institution, the
62 (See Compl. ¶ 18.)
63 (See Hostetter Aff. ¶ 4.)
64 (Compl. ¶ 25.)
65 (Compl. ¶ 35 (quoting ACC Const. § 1.2.1).)
66 (ACC Const. § 1.2.1(c), (g), (i).)
67 (See Compl. ¶¶ 14–16, 45–47 (estimating potential losses of “$72 Million to over $200
Million[ ]” in media rights payments alone should a Member Institution withdraw from the
ACC).)

Conference was able to increase the total value of those rights[.]”68 The Conference
then distributes the payments it receives under these media rights agreements,
totaling hundreds of millions of dollars, to its Members, including Clemson.69
35. 	Based on these allegations, the Court first concludes that the ACC’s
activities, specifically the sponsorship of athletic events and the marketing of media
rights for those events, are commercial in nature. The Court further concludes that,
as a Member of the ACC, Clemson’s Conference-related activities in this State are
also commercial, rather than governmental, in nature. See Thacker, 587 U.S. at 228
(describing “governmental activities” as the “the kinds of functions private parties
typically do not perform[ ]”).
36. 	The Court also concludes that, like FSU, Clemson has elected to engage in
this substantial commercial activity in North Carolina subject to the UUNAA’s sue
and be sued clause. Like FSU, Clemson chose to remain in the Conference after the
ACC, an unincorporated nonprofit association, became subject to the UUNAA and its
sue and be sued clause in 2006.70 	Like FSU, Clemson’s then-President authorized
68 (Compl. ¶ 58.)
69 (See Compl. Summary of Claims, ¶¶ 16, 41, 56, 69–70, 72, 75, 106–08.) According to the
ACC’s Form 990 tax returns, Clemson received more than $372 million in distributions
between 2006 and 2021. 	(See Br. Opp’n Def.’s Mot. Dismiss Attach. 2, ECF No. 31.3; Br.
Opp’n Def.’s Mot. Dismiss Corrected/Suppl. Attach. 2, ECF No. 35.2.)
70 The Court notes that it stated in its FSU Order that “the FSU Board knew that it was
subject to the UUNAA and its sue and be sued clause when it chose to be a member of a North
Carolina unincorporated nonprofit association.” FSU Order, 2024 NCBC LEXIS 53, at *42.
To the extent any clarification of this statement is needed, the Court notes that it did not
intend to suggest that FSU chose to become a member of an unincorporated nonprofit
association subject to the UUNAA when it joined the ACC in 1991; instead, the Court
meant—and believes its chosen language makes plain—that FSU, like Clemson, chose to

the filing of the Conference’s 2012 lawsuit against another sovereign Member
Institution, then-ACC Member the University of Maryland, in North Carolina
pursuant to the UUNAA’s sue and be sued clause,71 which the University of Maryland
unsuccessfully challenged on sovereign immunity grounds. 	See Atl. Coast Conf. v.
Univ. of Md., 230 N.C. App. 429, 442–43 (2013) (concluding that extending comity to
the University of Maryland’s claim of sovereign immunity would have violated public
policy). 	Like FSU, Clemson received hundreds of millions of dollars after entering
into the Grant of Rights in 2013 and the Amended Grant of Rights in 2016, much of
which was generated through Clemson’s voluntary commercial activity in North
Carolina.72 While Clemson contends that it did not vote to permit the ACC to become
remain a Member Institution of the ACC after the UUNAA was enacted in 2006. It follows
under Farmer that because Clemson and FSU conducted business in North Carolina while
knowing they were subject to the UUNAA’s sue and be sued clause, both of these Member
Institutions explicitly waived their sovereign immunity against suit in this State. 	See
Farmer, 382 N.C. at 375–76 (“When Troy University entered North Carolina and conducted
business in North Carolina while knowing it was subject to the North Carolina Nonprofit
Corporation Act and its sue and be sued clause, it explicitly waived its sovereign immunity.”).
71 In its 2012 complaint in the Atlantic Coast Conference v. University of Maryland, the ACC
alleged:
The ACC, as an unincorporated nonprofit association, is duly authorized by
each member of the ACC to pursue legal action to enforce the rights of members
against one or more other members related to duties and obligations owed to
the ACC. 	Each member other than defendant [University of] Maryland has
specifically authorized the ACC to act in that capacity in this [a]ction.
(Br. Opp’n Def.’s Mot. Dismiss Corrected/Suppl. Attach. 1 ¶ 39 [hereinafter “Univ. Md.
Compl.”], ECF No. 35.1 (emphases added).) Both the 2012 lawsuit against the University of
Maryland and the current lawsuit include a request for a declaration that the withdrawal
payment in the ACC’s Constitution is valid and enforceable. 	(Compare Univ. Md. Compl.
¶¶ 36–42, with Compl. ¶¶ 154–63.)
72 (See Compl. Summary of Claims, ¶¶ 16, 41, 56, 69–70, 72, 75, 106–08.)

an unincorporated nonprofit association subject to the UUNAA,73 there is no doubt
that, like FSU, it chose to remain in the Conference after the UUNAA was passed, to
enter into the Grant of Rights Agreements, and to accept the financial benefits of
those agreements, and, based on its decision to approve suit against the University
of Maryland, it recognized by at least 2012 that, as a Member, it was subject to the
UUNAA’s sue and be sued clause.
37. 	The “power [to sue and be sued], standing alone, does not necessarily act as
a waiver of immunity[,]” Evans v. Hous. Auth., 359 N.C. 50, 56 (2004), but because
Clemson, like FSU, and like Troy University in Farmer, “chose to do business in
North Carolina, while knowing it was subject to the [UUNAA] and able to take
advantage of the Act’s sue and be sued clause, it explicitly waived its sovereign
immunity.” Farmer, 382 N.C. at 373.
38. 	In its supporting and reply briefs, Clemson next argues that the statutory
waiver of sovereign immunity found in S.C. Code Ann. § 59-119-60, which states that
Clemson’s “board of trustees is hereby declared to be a body politic and corporate[ ]”
that “may sue and be sued and plead and be impleaded in its corporate name,” does
not extend beyond the borders of the State of South Carolina.74 	Although Clemson
concedes that the State of South Carolina may be held liable on a contract claim,75
73 (See Br. Supp. Def.’s Mot. Dismiss 9, 11; Def. Clemson Univ.’s Reply Br. Supp. Mot. Dismiss
3–7 [hereinafter “Reply Supp. Def.’s Mot. Dismiss”], ECF No. 37.)
74 (See Br. Supp. Def.’s Mot. Dismiss 7–8; Reply Supp. Def.’s Mot. Dismiss 2.)
75 (See Br. Supp. Def.’s Mot. Dismiss 6 (citing McCall v. Batson, 285 S.C. 243, 244 (1985)
(reaffirming that the State of South Carolina was not “immune[e] from suit based upon its
contractual obligations”)).)

Clemson contends that, because only “[t]he [South Carolina] General Assembly may
direct, by law, in what manner claims against the State may be established and
adjusted[,]”76 only 	“[t]he 	circuit 	courts 	of 	[South 	Carolina] 	are . . . vested 	with
jurisdiction 	to 	hear 	and 	determine 	all 	questions, 	actions 	and
controversies[ ] . . . affecting boards . . . of this State[ ] . . . in the circuit where such
question, action or controversy shall arise.”77 But the Court is not required to engage
in statutory interpretation under Farmer, where our Supreme Court held that,
despite 	the 	fact 	that 	“[s]overeign 	immunity 	[was] 	enshrined 	in 	Alabama’s
Constitution,” Troy University had waived its sovereign immunity by engaging in
commercial, rather than governmental, activities within this State under a sue and
be sued clause. Farmer, 382 N.C. at 370, 373.
39. 	Recognizing 	the 	limits 	of 	this 	Court’s 	authority, 	and 	for 	purposes 	of
complying with the error preservation requirements of Rule 10(a)(1) of the North
Carolina Rules of Appellate Procedure, Clemson alternatively argues that
if Farmer is read to apply more broadly than its unique facts, such that
Clemson is found to have waived sovereign immunity here, then that
case was wrongly decided. With respect, Justice Barringer’s dissenting
opinion in Farmer, joined by Chief Justice Newby, is a correct statement
of sovereign immunity law and should be the law in North Carolina.78
76 (Br. Supp. Def.’s Mot. Dismiss 5 (quoting S.C. Const. art. X, § 10; id. art. XVII, § 2).)
77 (Br. Supp. Def.’s Mot. Dismiss 6 (quoting S.C. Code Ann. § 15-77-50).)
78 (Br. Supp. Def.’s Mot. Dismiss 11.) Although the parties dispute its import, (see Br. Opp’n
Def.’s Mot. Dismiss 12; Reply Supp. Def.’s Mot. Dismiss 6), the Court notes that the United
States Supreme Court denied Troy University’s petition for writ of certiorari in the Farmer
case. See Troy Univ. v. Farmer, 143 S. Ct. 2561 (2023), cert denied. The ACC also notes that,
less than a month later, the United States Supreme Court issued its decision in Mallory v.
Norfolk S. Ry., 600 U.S. 122 (2023), contending that the holding in Mallory is consistent with

Although Clemson argues that a “sovereign’s lack of action in response to another
state’s new legislation” should not result in a waiver of sovereign immunity,79 this
Court is bound by our Supreme Court’s holding in Farmer; namely, that conduct such
as Clemson’s voluntary commercial activities in this State under a sue and be sued
clause results in waiver.80 See Farmer, 382 N.C. at 373.
40. 	Accordingly, the Court concludes that, under Farmer, Clemson has waived
its sovereign immunity and is subject to this suit in North Carolina. The Court will
therefore deny Clemson’s Motion to Dismiss to the extent it seeks dismissal for lack
of personal jurisdiction on grounds of sovereign immunity.81
III.
CLEMSON’S MOTION TO DISMISS PURSUANT TO RULE 12(b)(1)
FOR LACK OF SUBJECT MATTER JURISDICTION
the Supreme Court of North Carolina’s holding in Farmer; namely, that “a state may make
submission to jurisdiction a condition of conducting commercial activity.” (Br. Opp’n Def.’s
Mot. Dismiss 12–13.) 	In Mallory, the Supreme Court concluded that Mallory, a Virginia
resident, could nevertheless bring suit against Norfolk Southern, a corporation incorporated
and headquartered in Virginia, see Mallory, 600 U.S. at 126, in Pennsylvania state court for
a cause of action that did not accrue in Pennsylvania because Norfolk Southern had
registered to do business in Pennsylvania as a foreign corporation, and Pennsylvania law
explicitly permitted its “state courts to ‘exercise general personal jurisdiction’ over a
registered foreign corporation,” id. at 134–35.
79 (Reply Supp. Def.’s Mot. Dismiss 6; see Br. Supp. Def.’s Mot. Dismiss 13.)
80 As Clemson recognizes, any decision to overrule Farmer must come from our Supreme
Court, not this Court.
81 As discussed in Section II(A) above, the standard of review under Rule 12(b)(6) is the same
as the analysis the Court conducts under Rule 12(b)(2) when neither party presents evidence
of personal jurisdiction. Therefore, the Court will also deny Clemson’s Motion to Dismiss to
the extent it seeks dismissal for lack of personal jurisdiction on sovereign immunity grounds
pursuant to Rule 12(b)(6).

41. 	Moving under Rule 12(b)(1), Clemson seeks the dismissal of the ACC’s first
and second claims for lack of subject matter jurisdiction, contending that the
allegations in the Complaint “fail to constitute an actual or justiciable controversy as
to the validity or enforceability of the [Grant of Rights Agreements] under the North
Carolina Declaratory Judgment Act[ ]” and thus that the ACC does not have standing
to assert these two claims.82
A. 	Legal Standard
42. 	“Standing is a necessary prerequisite to a court’s proper exercise of subject
matter jurisdiction[,]” In re Z.G.J., 378 N.C. 500, 504 (2021) (citation omitted), and
“must be addressed, and found to exist, before the merits of the case are judicially
resolved[,]” In re T.B., 200 N.C. App. 739, 742 (2009) (cleaned up). 	“Rule 12(b)(1)
requires the dismissal of any action ‘based upon a trial court’s lack of jurisdiction over
the subject matter of the claim.’ ” Watson v. Joyner-Watson, 263 N.C. App. 393, 394
(2018) (quoting Catawba County v. Loggins, 370 N.C. 83, 87 (2017)). 	The plaintiff
bears the burden of establishing subject matter jurisdiction. 	See Harper v. City of
Asheville, 160 N.C. App. 209, 217 (2003). In ruling on a motion to dismiss for lack of
standing pursuant to Rule 12(b)(1), the Court “may consider matters outside the
pleadings” in determining whether subject matter jurisdiction exists, Harris v.
Matthews, 361 N.C. 265, 271 (2007), and must “view the allegations [of the pleading]
as true and the supporting record in the light most favorable to the non-moving
party[,]” Mangum v. Raleigh Bd. of Adjustment, 362 N.C. 640, 644 (2008). See also,
82 (Def.’s Mot. Dismiss ¶ 2; see Br. Supp. Def.’s Mot. Dismiss 16–18.)

e.g., United Daughters of the Confederacy v. City of Winston-Salem, 383 N.C. 612, 624
(2022) (quoting Harris and Mangum).
43. 	Under 	the 	Declaratory 	Judgment 	Act 	(the 	“DJ 	Act”), 	“[a]ny 	person
interested under a . . . written contract . . . , or whose rights, status or other legal
relations are affected by a . . . contract . . . , may have determined any question of
construction or validity arising under the . . . contract . . . , and obtain a declaration
of rights, status, or other legal relations thereunder.” N.C.G.S. § 1-254. “The purpose
of the [DJ Act] is to settle and afford relief from uncertainty concerning rights, status
and other legal relations[ ] . . . .” N.C. Consumers Power, Inc. v. Duke Power Co., 285
N.C. 434, 446 (1974). 	Our Supreme Court has determined that the following
principles govern the scope of the DJ Act:
The [DJ] Act does not undertake to convert judicial tribunals into
counsellors and impose upon them the duty of giving advisory opinions
to any parties who may come into court and ask for either academic
enlightenment or practical guidance concerning their legal affairs.
. . . .
The [DJ] Act recognizes the need of society for officially stabilizing legal
relations by adjudicating disputes before they have ripened into violence
and destruction of the status quo. 	It satisfies this social want by
conferring on courts of record authority to enter judgments declaring
and establishing the respective rights and obligations of adversary
parties in cases of actual controversies without either of the litigants
being first compelled to assume the hazard of acting upon his own view
of the matter by violating what may afterwards be held to be the other
party’s rights or by repudiating what may be subsequently adjudged to
be his own obligations.
While the [DJ Act] thus enables courts to take cognizance of disputes at
an earlier stage than that ordinarily permitted by the legal procedure
which existed before its enactment, it preserves inviolate the ancient
and sound juridic concept that the inherent function of judicial tribunals

is to adjudicate genuine controversies between antagonistic litigants
with respect to their rights, status, or other legal relations. This being
so, an action for a declaratory judgment will lie only in a case in which
there is an actual or real existing controversy between the parties
having adverse interests in the matter in dispute. It necessarily follows
that when a litigant seeks relief under the [DJ Act], he must set forth in
his pleading all facts necessary to disclose the existence of an actual
controversy between the parties[.]
Id. at 446–47 (cleaned up).
B. 	Analysis
44. 	Clemson argues that the ACC’s first two claims for relief are not based on
an actual and justiciable controversy between the parties.83 Clemson contends that
the “only action that Clemson is alleged to have taken to precipitate these requests
for declaratory relief” is to initiate the South Carolina Action.84 	But because the
South Carolina Action, unlike the Florida Action, does not challenge the validity or
enforceability of the Grant of Rights Agreements, Clemson contends that there is no
justiciable controversy between the parties and the ACC therefore lacks standing to
bring these claims.85
45. 	The ACC argues in opposition that not only do its first two claims for relief
seek a declaration that the Grant of Rights Agreements are valid and enforceable
contracts, but also that “the ACC can enforce the transfer of [Clemson’s media] rights
through 2036 regardless of whether Clemson remains a Member[ ]” of the ACC.86 The
83 (See Br. Supp. Def.’s Mot. Dismiss 16; Reply Supp. Def.’s Mot. Dismiss 7–8.)
84 (Br. Supp. Def.’s Mot. Dismiss 17.)
85 (See Br. Supp. Def.’s Mot. Dismiss 17–18; Reply Supp. Def.’s Mot. Dismiss 8.)
86 (Br. Opp’n Def.’s Mot. Dismiss 17.)

ACC 	additionally 	argues 	that 	the 	South 	Carolina 	Action 	“challeng[es] 	the
enforceability of the transfer of these rights to the ACC through 2036.”87
46. 	In its first claim for relief, the ACC seeks not one, but two declarations: (1) a
declaration that “the [Grant of Rights Agreements] are valid and binding contracts,
supported by good and adequate consideration,” and (2) a declaration that “the
Conference is and will remain the owner of the rights transferred by Clemson under
the [Grant of Rights Agreements] through June 30, 2036, regardless of whether it
remains a Member Institution.”88
47. 	In its second claim for relief, the ACC seeks a declaration that Clemson is
either “estopped from challenging the validity or enforceability” of the Grant of Rights
Agreements or “has waived its right to contest the validity or enforceability of the
terms and conditions” of the Grant of Rights Agreements.89 The ACC’s second claim
for relief does not seek a declaration that Clemson is barred by estoppel or waiver
from denying that it transferred its rights under the Grant of Rights Agreements
through 30 June 2036, regardless of whether it remains a Member Institution.
48. 	The Court concludes that, to the extent the ACC seeks a declaratory
judgment that the Grant of Rights Agreements are valid and enforceable contracts,
no actual controversy exists. 	In the South Carolina Action, Clemson alleges that it
“does not challenge the enforceability of the grant of media rights but merely seeks a
87 (Br. Opp’n Def.’s Mot. Dismiss 18.)
88 (Compl. ¶ 134.)
89 (Compl. ¶ 153.)

declaratory judgment regarding the scope of the rights granted.”90 	Based on
Clemson’s allegation, there is no current controversy between the parties as to the
validity and enforceability of the Grant of Rights Agreements.
49. 	As a result, the Court will grant Clemson’s Motion to Dismiss as to the first
declaration sought in the ACC’s first claim for relief and as to the ACC’s second claim
for relief in its entirety, each without prejudice. See, e.g., State ex rel. Utils. Comm’n
v. Cube Yadkin Generation, LLC, 279 N.C. App. 217, 221 (2021) (“The existence of an
actual controversy is a jurisdictional prerequisite to any judicial action based
thereon.”); Holton v. Holton, 258 N.C. App. 408, 415 (2018) (holding that a dismissal
for lack of subject matter jurisdiction “must be made without prejudice, since a trial
court without jurisdiction would lack authority to adjudicate the matter[ ]”).91
50. 	The Court reaches the opposite conclusion, however, to the extent the ACC
seeks a declaration in the first claim for relief that the “Conference is and will remain
the 	owner 	of 	the 	rights 	transferred 	by 	Clemson 	under 	the 	[Grant 	of 	Rights
Agreements] through June 30, 2036, regardless of whether it remains a Member
90 (S.C. Compl. ¶ 10; see also S.C. Am. Compl. ¶ 10 (alleging that Clemson “does not challenge
the validity or enforceability of the grant of media rights but merely seeks a declaratory
judgment that Clemson’s position regarding the scope of those rights is correct[ ]” (emphasis
added)).)
91 Having concluded that it does not have subject matter jurisdiction over these claims, the
Court need not, and does not, consider Clemson’s arguments for dismissal of these claims
under Rule 12(b)(6). 	See, e.g., In re T.R.P., 360 N.C. 588, 590 (2006) (“Subject matter
jurisdiction is the indispensable foundation upon which valid judicial decisions rest, and in
its absence a court has no power to act[.]”); In re Z.T.B., 170 N.C. App. 564, 572 (2005) (“[L]ack
of subject matter jurisdiction divests the trial court of any authority to adjudicate[.]”); see
also, e.g., In re K.C., No. COA23-612, 2024 N.C. App. LEXIS 98, at *17 (N.C. Ct. App. Feb. 6,
2024) (“Because we hold that the trial court did not have subject matter jurisdiction[,] we
need not reach the other issues raised.”).

Institution.”92 Although Clemson argues that “the only dispute between these parties
pertains to the scope of what media rights Clemson granted,” and that issue is “only
plead[ed] in Clemson’s first-filed South Carolina [A]ction[,]”93 the ACC has put the
same issue that is before the South Carolina court—namely, the scope of the media
rights Clemson granted under the Grant of Rights Agreements—squarely before this
Court.
51. 	In 	the 	opening 	paragraph 	of 	its 	Complaint, 	the 	ACC 	alleges 	that
“Clemson . . . agreed in 2013 and 2016, along with every other Member of the ACC,
to grant its media rights, ‘irrevocably and exclusively,’ to all of its ‘home’ games to the
Conference through 2036, ‘regardless of whether such Member Institution remains a
member of the Conference during the entirety of the Term’ (the ‘Grant of Rights’).”94
According to the Grant of Rights, these media rights include, without limitation,
(A) the right to produce and distribute all events of such Member
Institution that are subject to the ESPN Agreement[s]; (B) . . . the right
to authorize access to such Member Institution’s facilities for the
purposes set forth in and pursuant to the ESPN Agreement[s]; (C) the
right of the Conference or its designee to create and to own a copyright
of the audiovisual work of the ESPN Games . . . of or involving such
Member Institution (the “Works”) with such rights being, at least,
coextensive with 17 U.S.C. 411(c); and (D) the present assignment of the
92 (Compl. ¶ 134.)
93 (Br. Supp. Def.’s Mot. Dismiss 18.)
94 (Compl. Summary of Claims; see Compl. ¶¶ 124 (“In the [Grant of Rights Agreements],
Clemson agreed to grant its athletic Media Rights ‘irrevocably’ and ‘exclusively’ to the
Conference for the term.”), 125 (“In the [Grant of Rights Agreements], Clemson transferred
its Media Rights to the Conference ‘regardless’ of whether it remained a Member Institution
during the term[.]”), 126 (“In the [Grant of Rights Agreements], Clemson transferred its
Media Rights to the Conference through 2036 and specifically acknowledged that the transfer
was valid even if it withdrew from the Conference as a Member Institution.”); Grant of Rights
¶ 1; see also Compl. ¶¶ 56, 59, 60, 63, 85, 86.)

entire right, title and interest in the Works that are created under the
ESPN Agreement[s].95
The 	ACC 	further 	alleges 	that, 	by 	filing 	the 	South 	Carolina 	Action, 	Clemson
“challeng[ed] the validity of its irrevocable grant of [media] rights, regardless of
whether it remains a Member Institution.”96 The ACC then seeks a declaration from
this Court that the “Conference is and will remain the owner of the rights transferred
by Clemson under the [Grant of Rights Agreements] through June 30, 2036,
regardless of whether it remains a Member Institution.”97 Viewing these allegations
as true and in the light most favorable to the ACC, see Mangum, 362 N.C. at 644, the
Court concludes that the ACC has alleged an actual controversy as to the second
declaration in its first claim for relief and will deny Clemson’s Motion to Dismiss this
claim to this extent.98
95 (Grant of Rights ¶ 1; see also Compl. Corrected/Suppl. Ex. 4 § 2.10.1 [hereinafter “ACC
Bylaws”], ECF No. 34.1 (“Grant of Rights. The Members have granted to the Conference
the right to exploit certain media and related rights of the Members (such rights, the “Media
Rights”; and the agreement pursuant to which the Members granted such rights, the “Grant
of Rights”).) The ACC’s allegations and the Grant of Rights Agreements themselves put to
rest Clemson’s contention that the ACC has failed to identify the rights it claims Clemson
has granted to the Conference under the Grant of Rights Agreements.
96 (Compl. ¶ 131.)
97 (Compl. ¶ 134.)
98 As noted above, a court “view[s] the allegations as true and the supporting record in the
light most favorable to the nonmoving party[ ]” when determining a motion to dismiss for
lack of standing. 	Mangum, 362 N.C. at 644. 	Because this is “the applicable standard of
review regardless of whether the complaint is dismissed for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1) or for failure to state a claim upon which relief could be granted
pursuant to Rule 12(b)(6),” United Daughters of the Confederacy, 383 N.C. at 624, the Court
will grant Clemson’s Motion to Dismiss under Rule 12(b)(6) as to the first declaration sought
in the ACC’s first claim for relief and deny the Motion to Dismiss as to the second declaration
sought in the ACC’s first claim for relief to the same extent as discussed above. See Clark v.

IV.
CLEMSON’S MOTION TO DISMISS PURSUANT TO RULE 12(b)(6) FOR
FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED
A. 	Legal Standard
52. 	When deciding whether to dismiss for failure to state a claim under Rule
12(b)(6), the Court considers “whether the allegations of the complaint, if treated as
true, are sufficient to state a claim upon which relief can be granted under some legal
theory.” 	Corwin, 371 N.C. at 615 (quoting CommScope Credit Union v. Butler &
Burke, LLP, 369 N.C. 48, 51 (2016)). 	“[T]he trial court is to construe the pleading
liberally and in the light most favorable to the plaintiff, taking as true and admitted
all well-pleaded factual allegations contained within the complaint.” 	Donovan v.
Fiumara, 114 N.C. App. 524, 526 (1994) (cleaned up); see also, e.g., Sykes v. Health
Network Sols., Inc., 372 N.C. 326, 332 (2019) (recognizing that, under Rule 12(b)(6),
the allegations of the complaint should be viewed “as true and in the light most
favorable to the non-moving party”).
53. 	When considering a motion to dismiss under Rule 12(b)(6), the Court may
“also consider any exhibits attached to the complaint because ‘[a] copy of any written
instrument which is an exhibit to a pleading is a part thereof for all purposes.’ ”
Krawiec v. Manly, 370 N.C. 602, 606 (2018) (quoting N.C. R. Civ. P. 10(c)). Moreover,
the Court “can reject allegations that are contradicted by the documents attached [to],
Burnette, 2020 NCBC LEXIS 10, at *17–18 (N.C. Super. Ct. Jan. 28, 2020) (“A motion to
dismiss under Rule 12(b)(6) ‘is seldom an appropriate pleading in actions for declaratory
judgments, [ . . . and] is only allowed when the record clearly shows that there is no basis for
declaratory relief[,] as when the complaint does not allege an actual, genuine existing
controversy.’ ” (quoting N.C. Consumers Power, Inc., 285 N.C. at 439)).

specifically referred to, or incorporated by reference in the complaint.” Moch v. A.M.
Pappas & Assocs., LLC, 251 N.C. App. 198, 206 (2016) (quoting Laster v. Francis, 199
N.C. App. 572, 577 (2009)).
54. 	“[D]ismissal pursuant to Rule 12(b)(6) is proper when ‘(1) the complaint on
its face reveals that no law supports the plaintiff’s claim; (2) the complaint on its face
reveals the absence of facts sufficient to make a good claim; or (3) the complaint
discloses some fact that necessarily defeats the plaintiff’s claim.’ ” Corwin, 371 N.C.
at 615 (quoting Wood v. Guilford County, 355 N.C. 161, 166 (2002)).
B. 	Analysis
1. 	The ACC’s Fourth and Sixth Claims for Relief
55. 	Clemson first seeks to dismiss the ACC’s fourth and sixth claims under Rule
12(b)(6) because “there is no material breach of the [Grant of Rights Agreements] as
a matter of law.”99 	The ACC argues in response that “[b]ecause there are ‘no
heightened pleading requirements’ for claims involving breach of contract,” it has
adequately alleged the existence of a valid contract and a breach of its terms, which
is sufficient for its breach of contract claims to withstand dismissal at this stage in
the litigation.100
56. 	Although the ACC’s sixth claim for relief is for breach of the ACC’s
Constitution and Bylaws, not the Grant of Rights Agreements,101 whether Clemson’s
99 (Br. Supp. Def.’s Mot. Dismiss 20; see Reply Supp. Def.’s Mot. Dismiss 12.)
100 (Br. Opp’n Def.’s Mot. Dismiss 22 (quoting TriBike Transp., LLC v. Essick, 2022 NCBC
LEXIS 143, at *8 (N.C. Super. Ct. Nov. 30, 2022)).)
101 (See Compl. ¶¶ 189–96.)

initiation of the South Carolina Action constitutes a breach of the warranty provision
of the Grant of Rights Agreements impacts the Court’s analysis of both claims, so the
Court will begin its analysis there.
57. 	As the ACC correctly notes, “[t]he elements of a claim for breach of contract
are (1) [the] existence of a valid contract and (2) breach of the terms of that contract.”
Poor v. Hill, 138 N.C. App. 19, 26 (2000). Throughout the Complaint, the ACC alleges
that the Grant of Rights Agreements are valid and enforceable contracts and that
Clemson breached these agreements by filing its complaint in South Carolina.102
58. 	The ACC would have the Court end its analysis here. 	But under Rule
12(b)(6), the Court may “also consider any exhibits attached to the complaint[,]”
Krawiec, 370 N.C. at 606, and “can reject allegations that are contradicted by the
documents attached [to], specifically referred to, or incorporated by reference in the
complaint[,]” Moch, 251 N.C. App. at 206 (quotation omitted). 	Because the ACC
attached the Grant of Rights Agreements and the South Carolina complaint as
exhibits to its Complaint, the Court will determine whether these documents
contradict the ACC’s breach of contract allegations.
59. 	The warranty provision of the Grant of Rights Agreements provides that
“[e]ach of the Member Institutions covenants and agrees that . . . it will not take any
action, or permit any action to be taken by others subject to its control, . . . or fail to
take any action, that would affect the validity and enforcement of the Rights granted
102 (See Compl. Summary of Claims, ¶¶ 24, 131, 140, 150, 165, 169–71, 190.)

to the Conference under this Agreement.”103 In bringing the South Carolina Action,
Clemson avers in its complaint that it “does not challenge the enforceability of the
grant of media rights but merely seeks a declaratory judgment regarding the scope of
rights granted.”104 Indeed, Clemson asserts in its opening brief that it “concedes that
[the Grant of Rights Agreements] are valid and enforceable contracts[.]”105 Despite
these concessions, the ACC argues that Clemson’s declaratory judgment action in
South Carolina nevertheless does “affect the validity and enforcement of the Rights
granted to the Conference” under the Grant of Rights Agreements106 by “challenging
the validity of its irrevocable grant of rights, regardless of whether it remains a
Member Institution[,]” thereby breaching those agreements.107
60. 	According 	to 	the 	ACC, 	a 	determination 	of 	a 	contract’s 	validity 	and
enforceability necessarily involves “the construction of that agreement, or the scope
of rights under it.”108 	But, as Clemson notes in its reply brief, some validity and
103 (Grant of Rights ¶ 6; see Am. Grant of Rights ¶ 3 (“Except as specifically modified by this
Amendment, the terms of the Original Grant [of Rights] Agreement will remain in full force
and effect”).)
104 (S.C. Compl. ¶ 10 (emphasis added); see S.C. Am. Compl. ¶ 10 (alleging that Clemson “does
not challenge the validity or enforceability of the grant of media rights but merely seeks a
declaratory judgment that Clemson’s position regarding the scope of those rights is
correct[ ]”); Br. Supp. Def.’s Mot. Dismiss 21–22; Reply Supp. Def.’s Mot. Dismiss 12.)
105 (Br. Supp. Def.’s Mot. Dismiss 22.)
106 (Compl. ¶ 166 (quoting Grant of Rights ¶ 6).)
107 (Compl. ¶ 131; see Compl. Summary of Claims, ¶¶ 167, 169–70.)
108 (Br. Opp’n Def.’s Mot. Dismiss 18; see Br. Opp’n Def.’s Mot. Dismiss 19–20, 22–24.)

enforceability determinations do not require reference to or interpretation of a
contract’s terms at all.109
61. 	Moreover, the ACC’s argument implies that any request for a court to
interpret one or more terms of an agreement calls into question the validity and
enforceability of the entire agreement.110 	Such an interpretation, however, would
render the DJ Act meaningless.
62. 	When parties disagree over the terms of a contract, the DJ Act permits one
or both parties to request a court to
declar[e] and establish[ ] the respective rights and obligations of [the]
parties . . . without 	either 	of 	the 	litigants 	being 	first 	compelled 	to
assume the hazard of acting upon his own view of the matter by violating
what may afterwards be held to be the other party’s rights or by
repudiating 	what 	may 	be 	subsequently 	adjudged 	to 	be 	his 	own
obligations.
N.C. Consumers Power, Inc., 285 N.C. at 446. 	When “a court is called upon to
interpret a contract its primary purpose is to ascertain the intention of the parties at
the moment of its execution[ ]” by “look[ing] to the language of the contract and
determin[ing] if it is clear and unambiguous.” 	Golden Triangle #3, LLC v. RMP-
109 (See Reply Supp. Def.’s Mot. Dismiss 9 (citing lack of consideration or lack of authority to
enter into contract as examples).) The Court notes that other challenges to enforceability or
validity 	that 	may 	not 	require 	contract 	interpretation 	include 	illegality 	and
unconscionability—challenges which have been advanced by FSU in the FSU and Florida
Actions, (see Atl. Coast Conf. v. Bd. of Trs. of Fla. State Univ., No. 23 CVS 40918, Fla. State
Univ. Bd. of Trs.’ Br. Supp. Mot. Dismiss or, in the Alt., Stay Action 16, ECF No. 20; Atl.
Coast Conf. v. Bd. of Trs. of Fla. State Univ., No. 23 CVS 40918, Def.’s Mot Dismiss or, in the
Alt., Stay Action Ex. 1 at ¶¶ 227–46, 271–74 [hereinafter “Fla. Am. Compl.”], ECF No. 19.1)—
as well as mistake, lack of capacity, fraudulent inducement, duress, undue influence,
impossibility, waiver, and lack of mutual assent, among others.
110 (See Br. Opp’n Def.’s Mot. Dismiss 4–5, 13–14, 18–20, 22–23.)

Mallard Pointe, LLC, 2020 NCBC LEXIS 37, at *10 (N.C. Super. Ct. Mar. 23, 2020)
(citation omitted). 	“Whether or not the language of a contract is ambiguous is a
question for the court to determine.” Id. at *11 (cleaned up). And “[w]hen a contract
is in writing and free from any ambiguity which would require resort to extrinsic
evidence, or the consideration of disputed fact, the intention of the parties is a
question of law.” 	Id. at *10–11 (quoting Strader v. Sunstates Corp., 129 N.C. App.
562, 568 (1998)).
63. 	Under 	the 	ACC’s 	interpretation 	of 	the 	Grant 	of 	Rights 	Agreements’
warranty clause, no Member Institution could ever bring a declaratory judgment
action to determine its rights under those agreements without simultaneously
breaching them. 	But it is the province of the Court, not the party advancing or
opposing a declaratory judgment claim, to determine what the disputed terms of a
valid and enforceable contract mean, and the DJ Act permits a party to seek a judicial
determination of the “rights, status, or other legal relations” of the parties before a
breach occurs. 	N.C.G.S. § 1-254. 	Thus, Clemson’s initiation of the South Carolina
Action—which sought only to determine the meaning of a disputed term—did not
constitute a breach of the Grant of Rights Agreements’ warranty provision.111
111 This conclusion does not conflict with this Court’s decision in the FSU Order. 	In the
Florida Action, FSU seeks a declaration that the entirety of the Grant of Rights Agreements
are void and unenforceable on several grounds, which, as the Court concluded, does state a
cognizable claim for breach of the warranty provision of the Grant of Rights Agreements.
(See Atl. Coast Conf. v. Bd. of Trs. of Fla. State Univ., No. 23 CVS 40918, Fla. Am. Compl.
¶¶ 227–46, 262–74.)

64. 	Having reached this conclusion, the Court will now analyze how this
determination affects Clemson’s Motion to Dismiss the ACC’s fourth and sixth claims
for relief.
a. 	Fourth Claim for Relief: Breach of the Grant of Rights Agreements
65. 	In its fourth claim for relief, the ACC alleges that Clemson’s filing of the
South Carolina Action breached the Grant of Rights Agreements by (1) “[taking]
direct action that affects the validity and enforcement of the [Grant of Rights
Agreements]”;112 	(2) 	“tak[ing] 	direct 	action 	that 	affects 	the 	irrevocability 	and
exclusivity of the [Grant of Rights Agreements]”;113 and (3) “breach[ing] its obligation
of good faith and fair dealing[ ]” owed to the ACC under those agreements.114
Clemson seeks dismissal, contending that the ACC mischaracterizes Clemson’s
claims in the South Carolina Action.115 The Court agrees.
66. 	First, as the Court has already concluded, Clemson did not breach the
warranty provision in the Grant of Rights Agreements by initiating the South
Carolina Action. 	The Court therefore grants Clemson’s Motion to Dismiss the first
prong of the ACC’s fourth claim for relief.
67. 	The Court reaches the same conclusion as to the second prong. Rather than
challenge or otherwise seek to affect the “irrevocability” or “exclusivity” of the Grant
112 (Compl. ¶ 169.)
113 (Compl. ¶ 170.)
114 (Compl. ¶ 171.)
115 (See Br. Supp. Def.’s Mot. Dismiss 22; Reply Supp. Def.’s Mot. Dismiss 12.)

of Rights Agreements as the ACC contends, Clemson’s South Carolina Action
concedes the validity of those agreements and seeks instead a judicial determination
of the scope of its rights thereunder.116
68. 	As to the third prong, the ACC alleges that “rather than act in good faith
and deal fairly with the Conference to accomplish the ends of the [Grant of Rights
Agreements], Clemson has actively breached and sought to prevent the goals of those
contracts[ ]” by filing the South Carolina Action and by misleading the ACC about its
intention to file suit.117 But to the extent the claim is based on Clemson’s filing of the
South Carolina complaint, the Court has concluded that no breach of contract claim
lies for Clemson’s initiation of the South Carolina Action. And because, under North
Carolina law, “where a party’s claim for breach of the implied covenant of good faith
and fair dealing is based on the same acts as its claim for breach of contract, we treat
the former as part and parcel of the latter,” Cordaro v. Harrington Bank, FSB, 260
N.C. App. 26, 38–39 (2018), the Court shall dismiss the ACC’s implied covenant claim
to this same extent.
69. 	The ACC’s allegations concerning Clemson’s actions “in seeking discussions
with the Conference when it had already authorized the filing of a lawsuit” fare no
better.118 	While it is true that “[i]n every contract there is an implied covenant of
116 (See S.C. Compl. ¶¶ 3–7, 10–16, 60–64, 91–95; S.C. Am. Compl. ¶¶ 3–7, 10–16, 67–71, 98–
102.)
117 (Compl. ¶ 171.)
118 (Br. Supp. Def.’s Mot. Dismiss 24; see Compl. ¶ 120.)

good faith and fair dealing that neither party will do anything which injures the right
of the other to receive the benefits of the agreement,” Bicycle Transit Auth., Inc. v.
Bell, 314 N.C. 219, 228, (1985) (citation omitted), the parties never agreed to a
litigation standstill process in the Grant of Rights Agreements, nor has the ACC
alleged that such a process was ever contemplated when the Grant of Rights
Agreements were executed. 	Rather, the ACC’s allegations show that the parties
decided to initiate standstill discussions after the FSU and Florida Actions were filed
in an attempt to reach an entirely new agreement—an agreement to delay or avoid
litigation pending settlement discussions—but ultimately an agreement was never
reached.119 Viewed in the light most favorable to the ACC, the Court cannot conclude
that these failed negotiations, which occurred years after the Grant of Rights
Agreements were executed, “frustrat[ed] the fruits of the bargain that the [ACC]
reasonably expected[ ]” under the Grant of Rights Agreements. 	Value Health Sols.,
Inc. v. Pharm. Rsch. Assocs., 385 N.C. 250, 268 (2023). 	Accordingly, the Court will
also grant Clemson’s Motion to Dismiss the ACC’s fourth claim for relief to the extent
it seeks to assert a claim for breach of the implied covenant of good faith and fair
dealing under the Grant of Rights Agreements.
b. 	Sixth Claim for Relief: Breach of Good Faith and Fair Dealing Under
the ACC’s Constitution and Bylaws
70. 	The ACC asserts a second claim for breach of the implied covenant of good
faith 	and 	fair 	dealing, 	this 	time 	in 	connection 	with 	the 	ACC’s 	Bylaws 	and
119 (See Compl. ¶¶ 118–20.)

Constitution.120 	While implied covenant claims are nearly always paired with a
breach of contract claim in North Carolina, they need not be, as is the case here. See,
e.g., Richardson v. Bank of Am., N.A., 182 N.C. App. 531, 556 (2007) (concluding that
North Carolina courts have not held “that a party alleging breach of the duty of good
faith and fair dealing must allege a breach of contract”); see also Robinson v. Deutsche
Bank Nat’l Tr. Co., No. 5:12-CV-590-F, 2013 U.S. Dist. LEXIS 50797, at *39 (E.D.N.C.
Apr. 9, 2013) (citing Richardson and holding that “[t]he fact that [p]laintiff does not
allege a breach of a specific provision of [a contract] does not, therefore, doom her
[implied covenant] claim”).
71. 	The ACC alleges that under the ACC’s Bylaws and Constitution, the ACC
Commissioner is “charged with the duty to negotiate Media Rights agreements on
behalf of the Conference[ ]” and that, under the Bylaws, Clemson “ ‘granted to the
Conference the right to exploit certain media and related rights’ under the Grant of
Rights.”121 	The ACC alleges that, by its actions, Clemson “violate[d] its duty to act
in good faith and fairly deal with the Conference.”122 	The Court cannot conclude,
however, that a reasonable factfinder could find that Clemson interfered with the
ACC’s right to exploit Clemson’s media rights, either by filing the South Carolina
Action or by negotiating for a standstill agreement after the ACC initiated the FSU
Action. Indeed, Clemson does not dispute or seek to invalidate its obligations to the
120 (See Compl. ¶¶ 189–96.)
121 (Compl. ¶ 193 (quoting ACC Bylaws §§ 2.3.1(q), 2.10.1).)
122 (Compl. ¶ 194.)

ACC under the Constitution or Bylaws and instead simply seeks to understand the
scope of the rights it has agreed under the Bylaws that the ACC may exploit pursuant
to the Grant of Rights Agreements. Accordingly, the Court concludes that the ACC’s
sixth claim for relief should also be dismissed without prejudice.
2. 	Fifth Claim for Relief: Request for Declaratory Judgment that Clemson
Owes Fiduciary Obligations to the Conference
72. 	Clemson next seeks to dismiss the ACC’s claim for a declaration that
Clemson, as an ACC Member Institution, owes fiduciary duties to the ACC under the
ACC’s Constitution and Bylaws as well as under North Carolina law.123 	The ACC
concedes that this claim “is based on the same legal theory set forth in its complaints
against FSU.”124
73. 	This Court concluded in its FSU Order that, under the UUNAA, “an
unincorporated nonprofit association does not qualify as a joint venture and, thus,
the ACC cannot establish that a de jure fiduciary relationship existed between itself
and FSU.” FSU Order, 2024 NCBC LEXIS 53, at *61. The Court also concluded in
the FSU Order that the ACC had failed to plead the existence of a de facto fiduciary
relationship between it and FSU. Id. at *63. The Court then determined that there
was no “contractual imposition of fiduciary duties [on FSU] under the ACC’s
Constitution and Bylaws.” Id. at *64.
123 (See Br. Supp. Def.’s Mot. Dismiss 24–26.)
124 (Br. Opp’n Def.’s Mot. Dismiss 27.)

74. 	Because the allegations pleaded in support of the ACC’s fiduciary duty claim
against Clemson are substantively identical to those pleaded against FSU in the FSU
Action, the Court will grant Clemson’s Motion to Dismiss the ACC’s fifth claim for
relief for the same reasons as those set out in the FSU Order, see id. at *56–65, and
dismiss this claim with prejudice. In so doing, the Court notes that the ACC reserves
its right to appeal this ruling at the appropriate time.125
V.
MOTION TO STAY
75. 	Clemson also moves to stay any claims that remain following this Court’s
determination of its Motion to Dismiss pursuant to N.C.G.S. § 1-75.12 in favor of its
first-filed South Carolina Action.126 Clemson argues that the South Carolina Action
should take priority “to honor Clemson University’s role as first filer and the proper
plaintiff in the parties’ disputes.”127 	Clemson further contends that “allowing this
matter to proceed in North Carolina would work a substantial injustice to Clemson”
while “South Carolina provides a convenient, reasonable, and fair forum for merits
disposition of the parties’ dispute.”128
125 (See Br. Opp’n Def.’s Mot. Dismiss 27 (“[T]he Conference reserves the right to appeal at
the appropriate time and asks that the right to appeal from a similar decision here be noted
and protected by the Court.”).)
126 (See Def.’s Mot. Stay 1.)
127 (Br. Supp. Def.’s Mot. Stay 1; see Clemson Univ.’s Reply Br. Supp. Mot. Stay Under
N.C.G.S. § 1-75.12 at 3–5, ECF No. 38.)
128 (Def.’s Mot. Stay 1.)

76. 	The ACC argues in opposition that proceeding in a North Carolina court,
rather than a South Carolina court, “provides the best chance of a legally binding and
uniform interpretation of [the Grant of Rights Agreements] that will apply to the
ACC, Clemson, and FSU.”129 The ACC further contends that “North Carolina takes
a qualitative approach to whether litigation should be stayed in favor of litigation in
a foreign jurisdiction,” and, because Clemson “achieved [its] ‘first-filed’ status by
misdirection[,]” the Court should give less weight to that factor.130
77. 	Section 1-75.12 provides, in relevant part, as follows:
(a) 	When Stay May Be Granted. – If, in any action pending in any
court of this State, the judge shall find that it would work substantial
injustice for the action to be tried in a court of this State, the judge on
motion of any party may enter an order to stay further proceedings in
the action in this State. 	A moving party under this subsection must
stipulate his consent to suit in another jurisdiction found by the judge
to provide a convenient, reasonable and fair place of trial.
N.C.G.S. § 1-75.12(a). “The essential question for the trial court is whether allowing
the matter to continue in North Carolina would work a ‘substantial injustice’ on the
moving party.” Muter v. Muter, 203 N.C. App. 129, 131–32 (2010) (citation omitted).
78. 	As this Court recognized in the FSU Order, North Carolina courts consider
the following ten factors in determining whether to grant a stay under N.C.G.S. § 1-
75.12:
(1) the nature of the case, (2) the convenience of the witnesses, (3) the
availability of compulsory process to produce witnesses, (4) the relative
ease of access to sources of proof, (5) the applicable law, (6) the burden
of litigating matters not of local concern, (7) the desirability of litigating
129 (Pl.’s Br. Opp’n Def.’s Mot. Stay Under N.C.G.S. § 1-75.12 at 2 [hereinafter “Br. Opp’n
Def.’s Mot. Stay”], ECF No. 32.)
130 (Br. Opp’n Def.’s Mot. Stay 3–4.)

matters of local concern in local courts, (8) convenience and access to
another forum, (9) choice of forum by plaintiff, and (10) all other
practical considerations.
FSU Order, 2024 NCBC LEXIS 53, at *67–68 (quoting Laws. Mut. Liab. Ins. Co. of
N.C. v. Nexsen Pruet Jacobs & Pollard, 112 N.C. App. 353, 356 (1993)).
79. 	“[I]t is not necessary that the trial court find that all factors positively
support a stay, as long as it is able to conclude that (1) a substantial injustice would
result if the trial court denied the stay, (2) the stay is warranted by those factors
present, and (3) the alternative forum is convenient, reasonable, and fair.” 	Laws.
Mut. Liab. Ins. Co., 112 N.C. App. at 357. And while “the trial court need not consider
every factor,” Muter, 203 N.C. App. at 132, the court will abuse its discretion when it
“abandons any consideration of these factors[,]” Laws. Mut. Liab. Ins. Co., 112 N.C.
App. at 357.
80. 	After careful consideration and review, the Court concludes, in the exercise
of its discretion and based on an evaluation of each of the factors set forth in Lawyers
Mutual, that “allowing th[is] matter to continue in North Carolina would [not] work
a ‘substantial injustice’ on [Clemson],” Muter, 203 N.C. App. at 131–32, and therefore
that Clemson’s Motion to Stay should be denied.
81. 	Most importantly, the Court gives substantial weight under N.C.G.S. § 1-
75.12 	to 	the 	unique “practical 	considerations” 	presented by 	this 	action, 	when
considered in combination with the FSU Action, the Florida Action, and the South
Carolina Action (collectively, the “Pending Actions”). 	The only court that has
jurisdiction over FSU, Clemson, and the ACC—and thus the only court that can

assure a consistent, uniform interpretation of the Grant of Rights Agreements and
the ACC’s Constitution and Bylaws, the determinations at the core of the Pending
Actions—is a North Carolina court. 	The Florida court in the Florida Action cannot
bind Clemson in South Carolina. 	The South Carolina court in the South Carolina
Action cannot bind FSU in Florida.131 Each of these courts and this Court could reach
conflicting conclusions about the same terms of the same North Carolina contracts
upon which the Pending Actions rest—and in so doing create procedural chaos and
tremendous confusion at a time when the ACC, FSU, and Clemson need binding
clarity concerning their rights under the ACC’s most important contracts with its
Members. Only a North Carolina court, most likely in a single consolidated action in
North Carolina, can render consistent, uniform determinations binding the ACC,
FSU, and Clemson concerning the documents that are at issue in all four Pending
Actions. 	The Court finds that these “practical considerations” carry substantial
weight under N.C.G.S. § 1-75.12(a) in deciding Clemson’s Motion to Stay.
82. 	The parties focus most of their arguments on whether Clemson’s decision to
file the South Carolina Action entitles Clemson to deference under the “first-filed
rule.” Both parties agree that North Carolina “[c]ourts generally give great deference
to a plaintiff’s choice of forum,” Wachovia Bank v. Deutsche Bank Tr. Co. Ams., 2006
NCBC LEXIS 10, at *18 (N.C. Super. Ct. June 2, 2006), particularly when a
131 Nor can state courts in the seven other states in which the ACC’s Members are located—
Georgia, Virginia, Massachusetts, Indiana, Pennsylvania, New York, and Kentucky—bind
ACC Members located in a different state should Members in those states choose to sue the
ACC in their home jurisdictions.

“plaintiff[ ] select[s] [its] home forum to bring suit[,]” La Mack v. Obeid, 2015 NCBC
LEXIS 24, at *17 (N.C. Super. Ct. Mar. 5, 2015).132 	But this Court has recognized
that “[i]t is well-settled law that a court has broad discretion in applying and
construing the first-filed rule[,]” id. at *19 (quoting Nutrition & Fitness, Inc. v. Blue
Stuff, Inc., 264 F. Supp. 2d 357, 361 (W.D.N.C. 2003)), and that “[t]he amount of
deference due . . . varies with the circumstances[,]” Cardiorentis AG v. IQVIA Ltd.,
2018 NCBC LEXIS 243, at *8 (N.C. Super. Ct. Dec. 31, 2018), aff’d, 373 N.C. 309, 314
(2020). The Court concludes here that, even if Clemson is entitled to the deference it
seeks under the first-filed rule (a determination that the ACC hotly contests), the
practical 	considerations 	discussed 	above 	substantially 	outweigh 	any 	deference
Clemson is due as the first filer in the parties’ dispute.
83. 	Other factors also weigh in favor of denying Clemson’s requested stay. 	As
it did in the FSU Order, the Court concludes that the nature of the case and the
applicable law strongly favor allowing this matter to proceed in North Carolina. Like
the FSU Action, the key contracts in this case—the Grant of Rights and the Amended
Grant of Rights—were made in North Carolina and are governed by North Carolina
law. 	See, e.g., Tom Togs, Inc. v. Ben Elias Indus. Corp., 318 N.C. 361, 365 (1986)
(“Under North Carolina law, a contract is made in the place where the last act
necessary to make it binding occurred.”). 	And like in the FSU Action, the ACC’s
Constitution and Bylaws are also at issue, and as the ACC’s governing documents,
they too are governed by North Carolina law. See, e.g., Futures Grp., Inc. v. Brosnan,
132 (See Br. Supp. Def.’s Mot. Stay 5–6; Br. Opp’n Def.’s Mot. Stay 12–13.)

2023 NCBC LEXIS 7, at *5 (N.C. Super. Ct. Jan. 19, 2023) (“North Carolina courts
apply the substantive law of the incorporating state when deciding matters of
internal governance.”). 	Most importantly, the core issues presented in the two
actions—i.e., the scope of the rights Clemson granted to the ACC under the Grant of
Rights Agreements and whether the withdrawal payment provision in the ACC’s
Constitution 	constitutes 	an 	unenforceable 	penalty—involve 	the 	judicial
determination of the terms of a North Carolina unincorporated nonprofit association’s
critical North Carolina contracts and governing documents, which the Court finds
favors resolution before a North Carolina court.
84. 	Also as it found in the FSU Order, the Court finds that the burden of
litigating matters not of local concern and the desirability of litigating matters of local
concern in local courts strongly favor the litigation of this matter in North Carolina.
The ACC has been based in North Carolina for over seventy years and recently
received a tax incentive from the State of North Carolina to locate its headquarters
in Charlotte.133 Four of its Member Institutions are located in North Carolina—more
Members than from any other State—and Clemson is the only Member Institution
located in South Carolina.134 	Clemson has attended numerous meetings, served in
Conference leadership positions, and participated in hundreds of athletic contests in
North Carolina since it joined the ACC as a founding Member in 1953.135 Clemson
133 (See Compl. ¶¶ 1, 6, 13, 29.)
134 (See Compl. ¶¶ 1, 18.)
135 (See Compl. ¶¶ 6, 9–12, 18, 92–97, 101; Hostetter Aff. ¶¶ 3–5.)

has also previously authorized and participated in litigation against a former ACC
Member in North Carolina without complaint.136
85. 	Moreover, while Clemson is the only ACC Member Institution involved in
this lawsuit, the determination of the scope of the rights the Member Institutions
granted to the ACC under the Grant of Rights Agreements, regardless of whether a
Member withdraws from the Conference, is critically important to all Members of the
Conference, and the resolution of that issue is of tremendous consequence to the
North Carolina-based ACC since it may directly bear on the Conference’s ability to
meet its contractual commitments to ESPN as well as on the Conference’s future
revenues, stability, and long-term viability. 	For these reasons, the Court concludes
that a North Carolina court has “a local interest in resolving the controversy” that
exceeds the local interest of the South Carolina courts. 	See Cardiorentis AG, 2018
NCBC LEXIS 243, at *23 (observing that North Carolina courts generally have an
interest in providing a forum to hear disputes involving injuries related to citizens of
the state).137
136 As noted above, like FSU, Clemson voted to approve the ACC’s initiation of litigation in
North Carolina against the University of Maryland in 2012. (See Univ. Md. Compl. ¶ 39.)
137 The Court finds that the remaining Lawyers Mutual factors—(2) the convenience of the
witnesses, (3) the availability of compulsory process to produce witnesses, (4) the relative
ease of access to sources of proof, and (8) convenience and access to another forum—do not
strongly favor either Clemson or the ACC on the evidence of record presented by the parties
here. 	In this regard, the Court notes that Clemson, unlike FSU, offered evidence and
argument in connection with factors (2) and (4), leading the Court to a different conclusion
than it did in the FSU Action. See FSU Order, 2024 NCBC LEXIS 53, at *78 (finding that
“the convenience of witnesses and the ease of access to proof favor[ed] proceeding in North
Carolina[ ]” when the ACC presented evidence and argument on these factors and “the FSU
Board did not specifically address these factors in its briefing or at the Hearing[ ]”).

86. 	Considering 	the 	Lawyers 	Mutual 	factors 	as 	discussed 	above, 	both
independently and in combination, and balancing the equities present in these
circumstances, the Court concludes, in the exercise of its discretion, that the stay that
Clemson requests is not warranted under Lawyers Mutual and that proceeding with
this action in North Carolina would not work a “substantial injustice” on Clemson.
The Court concludes, as discussed above, that (1) the nature of the case, (5) the
applicable law, (6) the burden of litigating matters not of local concern, (7) the
desirability of litigating matters of local concern in local courts, and (10) the practical
considerations 	presented 	by 	the 	issues 	raised 	in 	the 	Pending 	Actions, 	when
considered 	in 	combination, 	decisively 	outweigh 	Clemson’s 	choice 	of 	the 	South
Carolina forum for the determination of the scope of the rights Clemson granted the
ACC in the Grant of Rights Agreements, Clemson’s related, and later-added, claim
for slander of title, and Clemson’s challenge to the enforceability of the withdrawal
payment in the ACC’s Constitution. 	Accordingly, the Court, in the exercise of its
discretion, will deny Clemson’s Motion to Stay under N.C.G.S. § 1-75.12(a).
VI.
CONCLUSION
87. 	WHEREFORE, the Court GRANTS in part and DENIES in part the
Motions and hereby ORDERS as follows:
a. 	The Court DENIES Clemson’s Motion to Dismiss to the extent it seeks
dismissal of this action for lack of personal jurisdiction on grounds of
sovereign immunity.

b. 	The Court GRANTS Clemson’s Motion to Dismiss as to (i) the ACC’s
first claim for relief to the extent that claim seeks a declaration that the
Grant of Rights Agreements are “valid and binding contracts, supported
by good and adequate consideration,” (ii) the ACC’s second claim for
relief based on quasi-estoppel and waiver, (iii) the ACC’s fourth claim
for relief for breach of contract, and (iv) the ACC’s sixth claim for relief
for breach of the implied covenant of good faith and fair dealing in the
ACC’s 	Constitution 	and 	Bylaws, 	and 	those 	claims 	are 	hereby
DISMISSED without prejudice.
c. 	The Court GRANTS Clemson’s Motion to Dismiss as to the ACC’s fifth
claim for relief for breach of fiduciary duty, and that claim is hereby
DISMISSED with prejudice.
d. 	The Court otherwise DENIES Clemson’s Motion to Dismiss, including
Clemson’s Motion to Dismiss as to the ACC’s first claim for relief to the
extent that claim seeks a declaration that “the Conference is and will
remain the owner of the rights transferred by Clemson under the [Grant
of Rights Agreements] through June 30, 2036, regardless of whether it
remains a Member Institution,” and this claim, together with the ACC’s
third claim for relief for a declaratory judgment that the withdrawal
payment provision of the ACC’s Constitution is a valid and enforceable
contractual provision, shall proceed forward in this litigation.

e. 	The Court, in the exercise of its discretion, DENIES Clemson’s Motion
to Stay.
SO ORDERED, this the 10th day of July, 2024.
/s/ Louis A. Bledsoe, III
Louis A. Bledsoe, III
Chief Business Court Judge