ATL. COAST CONF. v. BD. OF TRS. OF FLA. STATE UNIV., 2024 NCBC 21

STATE OF NORTH CAROLINA
MECKLENBURG COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
23CV040918-590
ATLANTIC COAST CONFERENCE,
Plaintiff,
v.
BOARD OF TRUSTEES OF
FLORIDA STATE UNIVERSITY,
Defendant.
ORDER AND OPINION ON
DEFENDANT’S MOTION TO DISMISS
OR, IN THE ALTERNATIVE, STAY
THE ACTION
1. 	Plaintiff Atlantic Coast Conference (the “ACC” or the “Conference”) initiated
this 	litigation 	late 	on 	the 	afternoon 	of 	21 	December 	2023 	seeking 	a 	judicial
determination that two media rights agreements between the ACC and its members
are valid and enforceable. 	The ACC argues that it did so only when it became a
practical certainty that Defendant Board of Trustees of Florida State University
(“FSU” or the “FSU Board”) would file a lawsuit the following day to challenge the
enforceability of those agreements, which, by their terms, prohibited the FSU Board
from seeking such relief. As the ACC expected, the FSU Board filed suit against the
ACC in Florida the next day, allegedly breaching the agreements.
2. 	This matter is now before the Court upon the FSU Board’s Motion to
Dismiss (the “Motion to Dismiss”) or, in the Alternative, Stay the Action (the “Motion
to Stay”; together, the “Motions”), filed on 7 February 2024 in the above-captioned
case.1
1 (Def.’s Mot. Dismiss or, in the Alt., Stay Action [hereinafter “Def.’s Mots.”], ECF No. 19.)
Atl. Coast Conf. v. Bd. of Trs. of Fla. State Univ., 2024 NCBC 21.

3. 	Having considered the Motions, the parties’ briefs in support of and in
opposition 	to 	the 	Motions, 	the 	Complaint 	for 	Declaratory 	Judgment 	(the
“Complaint”)2 and the First Amended Complaint (the “FAC”),3 the appropriate
evidence of record on the FSU Board’s Motion to Dismiss pursuant to Rules 12(b)(1)
and 12(b)(2) of the North Carolina Rules of Civil Procedure (the “Rule(s)”), and the
arguments of counsel at the hearing on the Motions, the Court, in the exercise of its
discretion and for the reasons set forth below, hereby GRANTS in part and DENIES
in part the Motion to Dismiss and DENIES the Motion to Stay.
Womble Bond Dickinson (US) LLP, by James P. Cooney, III, Sarah
Motley Stone, and Patrick Grayson Spaugh, and Lawson Huck Gonzalez,
PLLC, by Charles Alan Lawson, for Plaintiff Atlantic Coast Conference.
Bradley Arant Boult Cummings LLP, by Christopher C. Lam, C. Bailey
King, Jr., Hanna E. Eickmeier, and Brian M. Rowlson, and Greenberg
Traurig, P.A., by David C. Ashburn, John K. Londot, and Peter G. Rush,
for Defendant Board of Trustees of Florida State University.
Bledsoe, Chief Judge.
I.
FACTUAL AND PROCEDURAL BACKGROUND
4. 	The Court does not make findings of fact on the Motions. Rather, the Court
recites the allegations asserted and documents referenced in the Complaint and FAC
that are relevant to the Court’s determination of the Motions.
5. 	The ACC is a North Carolina unincorporated nonprofit association created
under Chapter 59B of the North Carolina General Statutes to “enrich and balance
2 (Compl. Declaratory J. [hereinafter “Compl.”], ECF Nos. 2 (sealed), 3 (public redacted).)
3 (First Am. Compl. [hereinafter “FAC”], ECF Nos. 11 (sealed), 12 (public redacted).)

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.”4 The ACC currently
has fifteen members (each a “Member” or “Member Institution”; collectively, the
“Members” or “Member Institutions”)5 and is governed by a Board of Directors. The
“most senior executive officer of [each] Member[ ]” serves as a Director on the ACC
Board,6 and “each Director shall have the right to take any action or any vote on
behalf of the Member it represents[.]”7 	FSU has been a Member of the ACC since
1991.8
6. 	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
4 (FAC ¶¶ 1, 38 (quoting FAC Ex. 1 § 1.2.1 [hereinafter “ACC Const.”], ECF Nos. 11 (sealed),
12.1 (public unredacted)).) 	Exhibits 1–9 to the Complaint were refiled as Exhibits 1–11 to
the FAC. (Exhibit 5 to the Complaint was split between Exhibits 5 and 8 to the FAC; Exhibit
6 to the Complaint was split between Exhibits 6 and 9 to the FAC.) For ease of reference, all
citations in this opinion will be to the exhibits to the FAC.
5 (See FAC ¶ 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 FAC ¶¶ 32–36.)
6 (ACC Const. § 1.5.1.2; see FAC ¶¶ 1, 40.)
7 (ACC Const. § 1.5.1.1; see FAC ¶¶ 1, 40.)
8 (See FAC ¶¶ 8, 36.)

Institution sporting events in exchange for specified payments.9 The ACC Board of
Directors unanimously approved this agreement.10
7. 	In 2012, “collegiate athletic conferences began to experience significant
instability and realignment[.]”11 	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.12 	During this same period,
the ACC Board 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.13 	It was
against this backdrop in 2013 that the ACC and ESPN agreed to an extension of the
2010 Multi-Media Agreement through 2027.14
8. 	“[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 FSU, entered into an Atlantic Coast Conference Grant of
9 (See FAC ¶¶ 13 n.2, 42–43.)
10 (See FAC ¶ 42.)
11 (FAC ¶ 55.)
12 (See FAC ¶ 54.) 	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.
13 (FAC ¶ 48; see FAC ¶¶ 47, 49–52.)
14 (See FAC ¶¶ 44, 54.)

Rights Agreement (the “Grant of Rights”) with the ACC in April 2013.15 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
accept from each of the Member Institutions, those rights granted
herein[:]
. . . .
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[.]
. . . .
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.16
9. 	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,
15 (FAC ¶ 56; see FAC ¶¶ 57, 66–67, 69; FAC Ex. 2 [hereinafter “Grant of Rights”], ECF Nos.
11 (sealed), 12.2 (public unredacted).)
16 (Grant of Rights 1, ¶¶ 1, 6; see FAC ¶¶ 61–64.)

including FSU.17 	In 2016, the ACC “sought to generate additional revenue for its
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.”18 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”).19
10. 	ESPN, however, conditioned its participation in the ESPN Agreements on
each Member Institution’s agreeing to extend the term of the Grant of Rights.20 After
numerous Board and other meetings, the ACC Members, including FSU, 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 2036.21 	The ESPN Agreements were executed a few days
later.22 Both ESPN Agreements “stipulate that their terms and conditions cannot be
17 (See FAC ¶¶ 70–73; FAC Ex. 3, ECF Nos. 11 (sealed), 12.3 (sealed).)
18 (FAC ¶ 77.)
19 (FAC ¶¶ 78–82; see FAC Ex. 5 [hereinafter “2016 Multi-Media Agreement”], ECF Nos. 11
(sealed), 12.5 (sealed); FAC Ex. 6 [hereinafter “ACC Network Agreement”], ECF Nos. 11
(sealed), 12.6 (sealed).)
20 (See FAC ¶ 84; FAC Ex. 7 at 1 [hereinafter “Am. Grant of Rights”], ECF Nos. 11 (sealed),
12.7 (public unredacted).)
21 (See FAC ¶¶ 83, 87, 91–105; Am. Grant of Rights ¶ 2.)
22 (FAC ¶ 78; see 2016 Multi-Media Agreement 1; ACC Network Agreement 1.)

disclosed to the public and impose a confidentiality obligation on the Conference.”23
The ACC was permitted to disclose the ESPN Agreements to its Member Institutions,
“provided that each [Member] Institution shall agree to maintain the confidentiality”
of the agreements.24 	To maintain the confidentiality of the ESPN Agreements, the
ACC allowed its Members to view the agreements only at the Conference’s North
Carolina headquarters and conditioned access on the Member’s promise to maintain
the confidentiality of the agreements.25
11. 	Although FSU’s “distributions from the ACC more than doubled” since it
entered into the Grant of Rights,26 in early 2023, the FSU Board “began to advocate
for more money for the university through unequal sharing of revenue[,]” contending
that FSU’s “ ‘brand’ entitled it to more revenue.”27 	In response, in May 2023, the
ACC “endorsed the concept of distributing a larger share of post-season revenues to
the Members that generated those revenues[.]”28 But FSU continued to push for “an
23 	(FAC 	¶ 106; 	see 	FAC 	Ex. 	8 	¶ 25.11 	[hereinafter 	“2016 	Multi-Media 	Agreement
Confidentiality Provision”], ECF Nos. 11 (sealed), 12.8 (public unredacted); FAC Ex. 9 ¶ 18.11
[hereinafter “ACC Network Agreement Confidentiality Provision”], ECF Nos. 11 (sealed),
12.9 (public unredacted).)
24 (FAC ¶ 108 (quoting 2016 Multi-Media Agreement Confidentiality Provision ¶ 25.11; ACC
Network Agreement Confidentiality Provision ¶ 18.11).)
25 (See FAC ¶¶ 138–40, 161–62.)
26 (FAC ¶ 111.)
27 (FAC ¶ 120; see FAC ¶¶ 117–19, 120–21.)
28 (FAC ¶ 122.)

unequal 	share 	of 	all 	Conference 	revenue,”29 	and 	the 	FSU 	Board 	discussed
withdrawing from the ACC at a 2 August 2023 Board meeting.30
12. 	Events came to a head on 21 December 2023, when the FSU Board notified
the public that it would hold an emergency meeting the following day.31 	The ACC
alleges that, “[w]ith the knowledge of [the FSU Board]’s clear intention to breach the
Grant of Rights and Amended Grant of Rights[ ]” by filing “a preemptive lawsuit
against the ACC in Leon County, Florida,”32 the ACC filed its original Complaint
under 	seal 	in 	Mecklenburg 	County 	Superior 	Court 	later 	that 	day, 	seeking 	a
declaration that the Grant of Rights Agreements are valid and enforceable contracts
and a declaration that the FSU Board is estopped from challenging or has waived any
right 	to 	challenge 	the 	Grant 	of 	Rights 	Agreements 	by 	accepting 	the 	benefits
thereunder.33
13. 	According to the ACC, the FSU Board Chair indicated at the 22 December
2023 Board meeting that (i) “each of the [FSU] Board Members had been privy to
‘individual briefings’ over the course of several months[,]”34 (ii) “he had spoken
individually with all [FSU] Board Members for the purpose of securing the necessary
29 (FAC ¶ 124 (emphasis omitted).)
30 (See FAC ¶¶ 129–32.)
31 (See FAC ¶ 143.)
32 (FAC ¶¶ 148–49.)
33 (Compl. ¶¶ 116–46.)
34 (FAC ¶ 154.)

votes to proceed to litigation[,]”35 and (iii) “a Complaint to be filed by [the FSU Board]
had been transmitted to all [FSU Board] Members several days before.”36 At the end
of the meeting, the FSU Board authorized the filing of the Florida complaint, and it
was filed publicly in the Circuit Court of the Second Judicial Circuit in and for Leon
County, Florida later that same day (the “Florida Action”).37
14. 	On 17 January 2024, the ACC filed its FAC, alleging damages and asserting
claims for monetary relief against the FSU Board for breach of the Grant of Rights
Agreements, breach of a contractual obligation to protect confidential information,
breach of fiduciary duty, and breach of the implied duty of good faith and fair dealing
under the ACC’s Constitution and Bylaws, in addition to the same two declaratory
judgment claims asserted in the original Complaint.38
15. 	The FSU Board subsequently filed an Amended Complaint for Declaratory
Judgment in the Florida Action on 29 January 2024, asserting claims against the
ACC for unreasonable restraint of trade under Fla. Stat. § 542.18; unenforceable
penalties under the Grant of Rights Agreements and the ACC Constitution; breach
of various contracts; breach of fiduciary duty; fundamental failure or frustration of
contractual purpose; unenforceable contracts as to the Grant of Rights Agreements;
35 (FAC ¶ 155.)
36 (FAC ¶ 153.)
37 (See FAC ¶¶ 168, 170; FAC Ex. 16 at 1 [hereinafter “Fla. Compl.”], ECF Nos. 11 (sealed),
12.16 (sealed).)
38 (See FAC ¶¶ 173–273.)

and unconscionable penalty provisions in violation of Florida public policy in the
Grant of Rights Agreements and the ACC Constitution.39 For each of its claims, the
FSU Board sought a judicial determination that the Grant of Rights Agreements were
unenforceable against FSU or that FSU was relieved and excused from performance
under those agreements.40 	The FSU Board also sought as relief for each claim a
judicial decree that FSU “be deemed to have issued its formal notice of withdrawal
from the ACC under section 1.4.5 of the ACC Constitution effective August 14,
2023.”41 The FSU Board has not alleged damages or sought monetary relief on any
claims it has asserted against the ACC in the Florida Action.42
16. 	On 7 February 2024, the FSU Board timely filed the Motions, seeking to
dismiss the FAC under Rules 12(b)(1), 12(b)(2), 12(b)(6), and 12(b)(7) or, in the
alternative, seeking to stay this action in favor of the pending Florida Action.43
17. 	After full briefing, the Court held a hearing on the Motions on 22 March
2024 at which all parties were represented by counsel (the “Hearing”). The Motions
are now ripe for resolution.44
39 (FSU Bd.’s Br. Supp. Def.’s Mots. Ex. 1 ¶¶ 227–74 [hereinafter “Fla. Am. Compl.”], ECF
Nos. 19.1 (sealed), 28 (public redacted).)
40 (See Fla. Am. Compl. ¶¶ 241, 246, 250, 256, 261, 270, 274.)
41 (Fla. Am. Compl. ¶¶ 241, 246, 250, 256, 261, 270, 274.)
42 (See Fla. Am. Compl. ¶¶ 241, 246, 250, 256, 261, 270, 274.)
43 (Def.’s Mots. ¶¶ 2–3.)
44 The Court also heard arguments at the Hearing on the ACC’s Amended Motion to Seal,
(ECF No. 9), and Motion to Seal Summary Exhibit ECF No. 24.2, (ECF No. 25). The Court
will resolve these sealing motions by separate order.

II.
MOTION TO DISMISS PURSUANT TO RULES 12(b)(1) AND 12(b)(2)
18. 	Moving under Rule 12(b)(1), the FSU Board challenges the ACC’s standing
to bring suit in North Carolina on two grounds: (i) the ACC filed suit before an actual
or justiciable controversy arose; and (ii) the ACC failed to satisfy a necessary
condition precedent prior to initiating this action.45 	The FSU Board additionally
argues that, under Rules 12(b)(1) and/or 12(b)(2), it cannot be sued in North Carolina
because the FSU Board has not waived its sovereign immunity except within the
boundaries of the State of Florida pursuant to Fla. Stat. §§ 768.28(1) and 1001.72.46
A. 	Legal Standard
19. 	“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 Cnty. 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
45 (Def.’s Mots. ¶¶ 2(a), (b).)
46 (Def.’s Mots. ¶ 2(c).)

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).
20. 	In North Carolina, the appropriate rule for consideration of a motion to
dismiss on the grounds of sovereign immunity has been somewhat unsettled. 	See,
e.g., Battle Ridge Cos. v. N.C. Dep’t of Transp., 161 N.C. App. 156, 157 (2003) (“Our
courts have held that the defense of sovereign immunity is a Rule 12(b)(1) defense.
Our courts have also held that the defense of sovereign immunity is a matter of
personal jurisdiction that would fall under Rule 12(b)(2).” (cleaned up)); Farmer v.
Troy Univ., 382 N.C. 366, 369–70 (2022) (reviewing a motion to dismiss on the
grounds of sovereign immunity under Rules 12(b)(2) and 12(b)(6)). 	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) and apply the appropriate standard of review for
motions under that Rule.
21. 	“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.
Parker v. Town of Erwin, 243 N.C. App. 84, 96 (2015) (cleaned up). 	“[A] trial court
[may] consider matters outside the pleadings[ ]” when ruling on a motion to dismiss
under Rule 12(b)(2). Id. at 97.
B. 	Analysis
1. 	Actual and Justiciable Controversy
22. 	Under the Declaratory Judgment Act (the “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. Because the “Act recognizes
the need of society ‘for officially stabilizing legal relations by adjudicating disputes
before they have ripened into . . . destruction of the status quo[,]’ ” Gray Media Grp.,
Inc. v. City of Charlotte, 290 N.C. App. 384, 391 (2023) (quoting Lide v. Mears, 231
N.C. 111, 117–18 (1949)), “[a] contract may be construed either before or after there
has been a breach thereof[,]” N.C.G.S. § 1-254.
23. 	In 	order 	for 	a 	court 	to 	have 	subject 	matter 	jurisdiction 	to 	render 	a
declaratory judgment, “the pleadings and evidence [must] disclose the existence of an
actual controversy between the parties having adverse interests in the matter in
dispute[ ] . . . at the time the pleading requesting declaratory relief was filed.” Button

v. Level Four Orthotics & Prosthetics, Inc., 380 N.C. 459, 466 (2022) (cleaned up).
Although “[a]bsolute certainty of litigation is not required,” id., “it is necessary that
litigation appear unavoidable,” Sharpe v. Park Newspapers of Lumberton, Inc., 317
N.C. 579, 589 (1986) (quoting Gaston Bd. of Realtors, Inc. v. Harrison, 311 N.C. 230,
234 (1984)). 	“Mere apprehension or the mere threat of an action or a suit is not
enough.” Gaston Bd. of Realtors, Inc., 311 N.C. at 234 (cleaned up). Instead, it is
[t]he imminence and practical certainty of the act or event in issue, or
the intent, capacity, and power to perform, [that] create[s] justiciability
as 	clearly as 	the completed act 	or event, 	and is generally easily
distinguishable from remote, contingent, and uncertain events that may
never happen and upon which it would be improper to pass as operative
facts.
Reese v. Brooklyn Vill., LLC, 209 N.C. App. 636, 652 (2011) (quoting Sharpe, 317 N.C.
at 590 (emphasis omitted)).
24. 	The FSU Board argues that, at the time the ACC filed its Complaint,
“litigation was still speculative and not unavoidable[.]”47 	Because the “FSU Board
had not yet met, much less voted to initiate litigation,” the FSU Board contends that
it “could have voted not to authorize the Florida Action at that time, or not actually
filed the Florida Action even if authorized.”48 As a result, the FSU Board asserts that
no actual and justiciable controversy existed when the ACC filed its Complaint late
in the afternoon on 21 December 2023.49
47 (FSU Bd.’s Br. Supp. Def.’s Mots. 10 [hereinafter “Br. Supp. Def.’s Mots.”], ECF No. 20; see
FSU Bd.’s Reply Supp. Def.’s Mots. 7–8 [hereinafter “Reply Supp. Def.’s Mots.”], ECF No. 41.)
48 (Br. Supp. Def.’s Mots. 10; see Reply Supp. Def.’s Mots. 7–8.)
49 (See Br. Supp. Def.’s Mots. 10; Reply Supp. Def.’s Mots. 8.)

25. 	The Court finds this argument without merit. 	Under the Grant of Rights,
the FSU Board agreed 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 to the Conference under this
Agreement.”50 As the ACC correctly notes, “[t]o protect its rights [under the Grant of
Rights], the Conference was not required to wait until FSU sued, breaching that
covenant[,]” but “was entitled to enforce that covenant when breach was imminent.”51
See, e.g., Lee Ray Bergman Real Est. Rentals v. N.C. Fair Hous. Ctr., 153 N.C. App.
176, 179 (2002) (“To satisfy standing requirements, a plaintiff must show . . . injury
that is concrete and particularized and actual or imminent[.]”); River Birch Assocs. v.
City of Raleigh, 326 N.C. 100, 129 (1990) (“To have standing the complaining
association or one of its members must suffer some immediate or threatened injury.”).
Moreover, 	under 	the 	ESPN 	Agreements, 	the 	ACC 	was 	obligated 	to 	“take 	all
[Commercially Reasonable Efforts] to protect the rights provided to ESPN[ ]” through
the Grant of Rights and Amended Grant of Rights.52 	While the ESPN Agreements
did not require the ACC to initiate litigation to protect ESPN’s rights, the ACC had
50 (Grant of Rights ¶ 6.)
51 (Pl.’s Br. Opp’n Def.’s Mots. 3–4 [hereinafter “Br. Opp’n Def.’s Mots.”], ECF No. 30; see also
Br. Opp’n Def.’s Mots. 6 n.3 (“FSU ignores that the filing of its lawsuit challenging the Grant
of Rights was itself the breach, not just an effort to invoke judicial interpretation of a
contract’s terms.” (emphasis omitted)).)
52 (Br. Opp’n Def.’s Mots. 8; see also Sur-Reply Pl. ACC 11 [hereinafter “Sur-Reply Def.’s
Mots.”], ECF No. 46.)

the right to initiate litigation to protect ESPN’s rights in the ACC’s discretion if those
rights were threatened.53
26. 	The ACC alleges that, as early as 24 February 2023, the FSU Board “openly
discussed withdrawing from the Conference and the cost of the withdrawal payment
in order to facilitate a move to another conference in order to receive more money.”54
The ACC further alleges that FSU “began to advocate for more money for the
university through unequal sharing of revenue[,]”55 and, on 17 May 2023, the ACC
“endorsed the concept of distributing a larger share of post-season revenues to the
Members that generated those revenues[.]”56 	Nevertheless, the ACC alleges that
FSU continued to “advocat[e] for an unequal share of all Conference revenue,”57 once
again discussing the possibility of leaving the ACC at the 2 August 2023 meeting of
53 “Commercially Reasonable Efforts” is a defined term in the ESPN Agreements. 	The
portions of the ESPN Agreements initially in the record did not include the definition of this
term. 	At the Court’s request, the ACC supplied the Court and the FSU Board with the
following definition from the ESPN Agreements, which it made part of the public record,
prior to the Hearing:
1.24 	“Commercially Reasonable Efforts”: 	With respect to a given goal or
objective, the efforts that a reasonable commercial person or entity in the
position of the party undertaking to pursue such goal or objective would use so
as to achieve such a goal or objective expeditiously; provided, however, that
Commercially Reasonable Efforts shall not require any party to incur or
become obligated to incur any expense not otherwise specifically provided for
in this Agreement, including fees and expenses of counsel and consultants, or
to incur any liability or waive or concede any right or claim that such party
may have.
54 (Compl. ¶ 94; FAC ¶ 117; see also Compl. ¶¶ 95–96; FAC ¶¶ 118–19.)
55 (Compl. ¶ 97; FAC ¶ 120.)
56 (Compl. ¶ 99; FAC ¶ 122.)
57 (Compl. ¶ 101 (emphasis omitted); FAC ¶ 124 (emphasis omitted).)

the FSU Board.58 The day before this meeting, the Chair of the FSU Board stated in
a public interview that the Grant of Rights “will not be the document that keeps us
from taking action.”59
27. 	On 21 December 2023, the FSU Board notified the public that an emergency
meeting would occur the following day.60 Leading up to that meeting, the ACC alleges
that “each of the [FSU] Board Members had been privy to ‘individual briefings’ over
the course of several months[ ]” and that the Chair “had spoken individually with all
[FSU] Board Members for the purpose of securing the necessary votes to proceed to
litigation.”61 	In 	addition, 	the 	ACC alleges 	that 	a draft 	complaint 	“had been
transmitted to all [FSU Board] Members several days before[ ]” the meeting62 and
that a copy of the original complaint in the Florida Action appeared on FSU’s news
service prior to the FSU Board meeting on 22 December 2023.63 And, of course, the
FSU Board initiated litigation against the ACC within hours after the FSU Board
meeting concluded.64
58 (See Compl. ¶¶ 102–04; FAC ¶¶ 125, 129–32; see generally FAC Ex. 10, ECF Nos. 11
(sealed), 12.10 (public unredacted).)
59 (Compl. ¶ 107; FAC ¶ 135; see FAC Ex. 11 at 8, ECF Nos. 11 (sealed), 12.11 (public
unredacted).) Citations to the page numbers in Exhibit 11 refer to the electronic PDF page
numbers as the document itself contains no page numbers.
60 (See Compl. ¶¶ 110, 114; FAC ¶ 143.)
61 (FAC ¶¶ 154–55.)
62 (FAC ¶ 153.)
63 (FAC ¶ 169; see also FAC Ex. 15, ECF Nos. 11 (sealed), 12.15 (public unredacted).)
64 (See FAC ¶ 170; Fla. Compl. 1.)

28. 	Viewing these allegations as true and in the light most favorable to the ACC
as it must under Rule 12(b)(1), the Court concludes that, as of the filing of this action,
the FSU Board’s initiation of litigation over the Grant of Rights Agreements was
unavoidable and a practical certainty. 	While it was theoretically possible that the
FSU Board would decide not to file suit at its 22 December Board meeting, it has not
offered any evidence to rebut the ACC’s allegations and proof showing that the FSU
Board had decided to file suit as of the filing of the ACC’s Complaint and that the
FSU Board’s approval of that action on 22 December was a mere formality to its
institution of the Florida Action. 	See, e.g., Ferrell v. Dep’t of Transp., 334 N.C. 650,
656 (1993) (concluding that where “it is conceivable that litigation [might] not arise[,]”
such “contingencies and possibilities[ ] . . . do not make the case nonjusticiable”); City
of New Bern v. New Bern-Craven Cnty. Bd. of Educ., 328 N.C. 557, 559 (1991)
(concluding a justiciable controversy existed when plaintiff challenged a statute that
removed “[a] right which previously belonged to the plaintiff”); Bueltel v. Lumber Mut.
Ins. Co., 134 N.C. App. 626, 629 (1999) (determining a justiciable controversy existed
where plaintiff sought a judgment as to whether or not his past and present actions
violated a contract); Stephenson v. Parsons, 96 N.C. App. 93, 96 (1988) (concluding
that defendant’s subsequent litigation against plaintiff “shows an actual controversy
between [the] parties”).
29. 	Because the ACC has demonstrated that, as of the filing of the ACC’s
Complaint, there existed “a practical certainty that litigation would arise” with the
FSU Board, Button, 380 N.C. at 466 (quoting Ferrell, 334 N.C. at 656), there existed

an “actual controversy between the parties having adverse interests in the matter in
dispute[ ] . . . at the time the pleading requesting declaratory relief was filed.” Id.
30. 	The Court therefore will deny the FSU Board’s Motion to Dismiss to the
extent the FSU Board contends that an actual and justiciable controversy did not
exist when the ACC filed this litigation.65
2. 	Condition Precedent to Initiating Suit
31. 	As the ACC notes in its sur-reply, the FSU Board’s position for dismissal
based on the ACC’s failure to comply with a condition precedent “has shifted over
time.”66 	The first argument advanced by the FSU Board in its supporting brief
appears to be focused on the sufficiency of the allegations in the pleading and, thus,
is more properly considered as a motion to dismiss under Rule 12(b)(6).67 Specifically,
the FSU Board argues that because the ACC failed to either “plead generally that all
conditions precedent to filing this action have occurred” or “plead specifically that
[the] . . . notice, 	quorum 	meeting, 	and 	member 	vote” 	required 	by 	the 	ACC
Constitution to initiate litigation occurred, dismissal is warranted.68
65 Because the Court concludes that an actual and justiciable controversy existed at the time
the ACC filed its Complaint, the Court will also deny the FSU Board’s Motion to Dismiss
under Rule 12(b)(6) on this ground. See Poole v. Bahamas Sales Assoc., LLC, 209 N.C. App.
136, 141–42 (2011) (“Although a motion to dismiss under Rule 12(b)(6) is seldom an
appropriate pleading in actions for declaratory judgments, it is 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.” (cleaned up)).
66 (Sur-Reply Def.’s Mots. 3.)
67 (See Br. Supp. Def.’s Mots. 11–12.)
68 (Br. Supp. Def.’s Mots. 11–12; see ACC Const. §§ 1.5.1.5, 1.6.2.) 	The Court notes that,
although the FSU Board refers to section 1.5.4.3 of the ACC Constitution in its briefing, (see
Br. Supp. Def.’s Mots. 11; Reply Supp. Def.’s Mots. 3), this section refers to notice and meeting

32. 	The Court disagrees. Although North Carolina permits notice pleading, see
N.C. R. Civ. P. 8(a), certain matters have specific pleading requirements, see N.C. R.
Civ. P. 9. 	“In pleading the performance or occurrence of conditions precedent, it is
sufficient to aver generally that all conditions precedent have been performed or have
occurred.” N.C. R. Civ. P. 9(c) (emphasis added). And, when the condition precedent
relates to a party’s ability to bring suit, Rule 9(a) only requires that “[a]ny party not
a natural person shall make an affirmative averment showing its legal existence and
capacity to sue.” N.C. R. Civ. P. 9(a).
33. 	In 	both 	its 	Complaint 	and 	FAC, 	the 	ACC 	alleges 	that 	it 	is 	“an
unincorporated nonprofit association under North Carolina law.”69 The ACC further
alleges that “[a]s an unincorporated nonprofit association under North Carolina law,
the ACC has the ability to sue in its own name and enter into contracts[,]” and “may,
acting on its own behalf, enforce its contractual obligations with one or more of its
Member Institutions.”70
34. 	At this stage, the Court must “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). Because the ACC was required only to “make an
requirements for committees, (see ACC Const. § 1.5.4.3). 	Section 1.5.1.5 of the ACC
Constitution sets out the notice and meeting requirements for the ACC’s Board of Directors.
(See ACC Const. § 1.5.1.5.)
69 (Compl. ¶ 1; FAC ¶ 1.)
70 (Compl. ¶ 2; FAC ¶ 2.)

affirmative averment showing its legal existence and capacity to sue[,]” N.C. R. Civ.
P. 9(a), the FSU Board’s contention that the ACC failed to plead that it had taken all
necessary steps prior to bringing suit, either generally or specifically, is without
merit.
35. 	Turning to the parties’ remaining arguments, the Court observes that the
parties appear to “conflate[ ] . . . standing-related arguments with . . . arguments
regarding the legally and conceptually distinct issue of whether the [ACC]’s actions
were authorized” under the ACC Constitution. United Daughters of the Confederacy
v. City of Winston-Salem, 383 N.C. 612, 626 (2022) (emphasis added). The Court will
therefore first determine whether the Conference “has made the necessary showing
of standing[ ]” prior to addressing the parties’ arguments about whether the ACC was
authorized to bring suit. Id. at 627.
36. 	“Standing refers to whether a party has a sufficient stake in an otherwise
justiciable controversy such that [the party] may properly seek adjudication of the
matter.” 	Edwards v. Town of Louisburg, 290 N.C. App. 136, 140 (2023) (citation
omitted). “The North Carolina Constitution confers standing to sue in our courts on
those who suffer the infringement of a legal right, because ‘every person for an injury
done him in his lands, goods, person, or reputation shall have remedy by due course
of law.’ ” Comm. to Elect Dan Forest v. Emps. Pol. Action Comm., 376 N.C. 558, 610
(2021) (quoting N.C. Const. art. I, § 18, cl. 2). 	To establish standing in North
Carolina, “a plaintiff must demonstrate the following: a legal injury; the traceability
of the injury to a defendant’s actions; and the probability that the injury can be

redressed by a favorable decision.” 	Soc’y for the Hist. Pres. of the Twentysixth N.C.
Troops, Inc. v. City of Asheville, 282 N.C. App. 701, 704 (2022). 	Thus, “[w]hen a
person alleges the infringement of a legal right directly under a cause of action at
common law, a statute, or the North Carolina Constitution, . . . the legal injury itself
gives rise to standing.” Comm. to Elect Dan Forest, 376 N.C. at 608.
37. 	Under the Declaratory Judgment Act, “an action is maintainable only in so
far as it affects the civil rights, status and other relations in the present actual
controversy between the parties.” 	Edwards, 290 N.C. App. at 140. 	Nevertheless, a
“plaintiff is still required to demonstrate that it has sustained a legal or factual injury
arising 	from 	defendant[’s] 	actions 	as 	a 	prerequisite 	for 	maintaining
[a] . . . declaratory judgment action[,]” because “[t]he mere filing of a declaratory
judgment is not sufficient, on its own, to grant a plaintiff standing.” 	United
Daughters of the Confederacy, 383 N.C. at 629 (third alteration in original) (quotation
marks and citation omitted).
38. 	In Willowmere Community Association v. City of Charlotte, the Supreme
Court of North Carolina previously determined that “[n]othing in our jurisprudence
on 	standing 	requires 	a 	corporate 	litigant 	to 	affirmatively 	plead 	or 	prove 	its
compliance with corporation bylaws and internal rules relating to its decision to bring
suit.” 	370 N.C. 553, 560–61 (2018) (emphasis added). 	Even where, as here, the
defendant, who is a member of the plaintiff corporate litigant, raises the plaintiff’s
failure to comply with its internal governance procedures as a bar to plaintiff’s suit,
Willowmere implies that defendant’s relief lies in contract, through a motion to

dismiss, a motion to stay, or the initiation of a separate suit. See id. at 561. As long
as a corporate litigant meets the three-pronged test to establish standing set out
above, it “possess[es] a sufficient stake in an otherwise justiciable controversy to
confer jurisdiction on the trial court to adjudicate [a] legal dispute[,]” despite the
corporate litigant’s “failure to strictly comply with [its] . . . bylaws and internal
governance procedures in [its] decision to initiate . . . suit[.]” 	Id. at 562 (quotation
marks and citation omitted); see also Robinson on N.C. Corp. Law § 3.03[1] (“A
plaintiff 	corporation’s 	failure 	to 	comply 	strictly 	with 	its 	bylaws 	and 	internal
governance procedures in determining whether to commence litigation does not in
itself deprive the corporation of standing to bring its claim.”).
39. 	Here, and as discussed in connection with the FSU Board’s first argument
above, the Court concludes that the ACC has established that it had standing when
it initiated this litigation on 21 December 2023. 	Under the Grant of Rights
Agreements, FSU “irrevocably and exclusively” granted its media rights to the ACC
for the term of those agreements.71 FSU additionally agreed that “it [would] 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 to the Conference under this Agreement.”72 Based on these representations,
71 (See Compl. ¶¶ 52–53, 56–59, 76–80, 117; FAC ¶¶ 61–62, 65–68, 83–86; Grant of Rights
¶¶ 1, 6; Am. Grant of Rights ¶ 3 (“Except as specifically modified by this Amendment, the
terms of the [Grant of Rights] will remain in full force and effect.”).)
72 (Compl. ¶ 55 (quoting Grant of Rights ¶ 6); FAC ¶ 64 (same).)

the ACC entered into the ESPN Agreements on behalf of its Members,73 “which
significantly increased the revenues paid to the Conference and distributed to its
Member Institutions, including [FSU].”74
40. 	The ACC alleges that the FSU Board has “breached, ignored, or otherwise
violated the terms of the Grant of Rights and Amended Grant of Rights[.]”75 	In
support, 	the 	Conference 	alleges 	that 	FSU 	began 	seeking 	a 	greater 	share 	of
Conference revenue in early 2023;76 openly discussed leaving the Conference at
meetings of the FSU Board in February and August 2023;77 provided “individual
briefings” for, and circulated a draft complaint to, each of the FSU Board Members to
“secur[e] the necessary votes to proceed to litigation[ ]”;78 and held an “emergency”
meeting of the FSU Board on 22 December 2023 to authorize the filing of “a
preemptive lawsuit against the ACC in Leon County, Florida[.]”79 	“By challenging
the validity of the Grant of Rights and Amended Grant of Rights through the Florida
Action,” the ACC alleges that the FSU Board “seeks to undermine or destroy the
contracts and agreements that enable the Conference to create a viable collegiate
73 (See Compl. ¶¶ 69–75; FAC ¶¶ 78–84.)
74 (Compl. ¶ 120; FAC ¶ 177; see FAC ¶¶ 109, 111.)
75 (FAC ¶ 181; see Compl. ¶ 124.)
76 (See Compl. ¶¶ 97–102; FAC ¶¶ 120–25.)
77 (See Compl. ¶¶ 94–96, 103–08; FAC ¶¶ 117–19, 129–32.)
78 (FAC ¶¶ 153–55.)
79 (FAC ¶ 148; see Compl. ¶ 114; FAC ¶¶ 148–57, 168.)

athletic conference that, through its activities, enhances and funds college athletics
for its Members.”80
41. 	As such, the ACC has demonstrated that it has “a legally protected interest”
that has been “invaded” by the FSU Board’s pursuit of a declaratory judgment with
respect to the validity and enforceability of the Grant of Rights Agreements. 	Soc’y
for the Hist. Pres. of the Twentysixth N.C. Troops, Inc., 282 N.C. App. at 704 (citation
omitted). Because the ACC’s “injury can be redressed by a favorable decision[,]” id.;
namely, through a “Declaration that the Grant of Rights and [A]mended Grant of
Rights is [sic] a valid and enforceable contract [sic] between [FSU] and the ACC[,]”81
the Court concludes that the ACC had standing to bring suit when it filed its original
Complaint on 21 December 2023 under the threat of the FSU Board’s imminent
breach. See id. (requiring “a legal injury; the traceability of the injury to a defendant’s
actions; and the probability that the injury can be redressed by a favorable decision”
for standing to obtain).
42. 	Although 	argued 	in 	the 	context 	of 	“standing,” 	the 	parties’ remaining
arguments actually focus on whether the ACC was authorized to initiate litigation
against FSU. 	The FSU Board argues that, because the Conference did not comply
with a provision of the ACC Constitution that requires the Conference to obtain the
approval of an “Absolute Two-Thirds” majority of the ACC Member Institutions prior
80 (FAC ¶ 249.)
81 (FAC Prayer for Relief ¶ 1.)

to “the initiation of any material litigation involving the Conference[,]”82 dismissal is
warranted.83
43. 	The ACC does not dispute that it did not obtain an “Absolute Two-Thirds”
majority approval of its Members prior to filing the Complaint; rather, the Conference
contends that such approval was unnecessary because the relief requested in the
Complaint did not amount to “material litigation” and, moreover, had been previously
authorized by the Members based on the ACC’s obligation to protect ESPN’s rights
under the ESPN Agreements.84 	And, “[w]hile not required because the original
Complaint was valid,”85 the ACC further contends that an “Absolute Two-Thirds”
majority of the Member Institutions approved the filing of the FAC, which included
the original claims as they were asserted in the Complaint, at a duly called meeting
of the ACC Board on 12 January 2024, thus retroactively ratifying the filing of the
Complaint.86
44. 	Although the parties direct much of their focus on the ACC’s first two
contentions, even if the Court were to assume, as the FSU Board argues, that the
relief requested in the Complaint constituted “material litigation” and that the
82 (ACC Const. § 1.6.2.)
83 (See Reply Supp. Def.’s Mots. 3–6.)
84 (See Br. Opp’n Def.’s Mots. 8–9; Sur-Reply Def.’s Mots. 11.)
85 (Br. Opp’n Def.’s Mots. 9.)
86 (See Br. Opp’n Def.’s Mots. 9; Br. Opp’n Def.’s Mots. Ex. 2 at ¶¶ 3–5 [hereinafter “Hostetter
Aff.”], ECF No. 31.2; Sur-Reply Def.’s Mots. 5–8.)

institution of litigation was not contemplated in “the already-approved obligation [of
the ACC] to take commercially reasonable action[ ]” to protect the Grant of Rights
Agreements under the terms of the ESPN Agreements,87 the Court concludes that
the FSU Board’s Motion to Dismiss for failure of a condition precedent must be denied
because the ACC’s evidence of ratification is unrebutted and dispositive.
45. 	Our Court of Appeals has defined “ratification” as “the affirmance by a
person of a prior act which did not bind him but which was done or professedly done
on his account, whereby the act, as to some or all persons, is given effect as if
originally authorized by him.” King Fa, LLC v. Chen, 248 N.C. App. 221, 226 (2016)
(citation omitted). “To establish ratification, a plaintiff must show that the principal
had full knowledge of all material facts and that the principal intended to ratify the
act.” Hilco Transp., Inc. v. Atkins, 2016 NCBC LEXIS 5, at *29 (N.C. Super. Ct. Jan.
15, 2016).
46. 	Far from “turn[ing] the law of internal governance on its head” as the FSU
Board contends,88 ratification is a practice frequently employed by corporate entities
to approve defective actions which the entities failed to originally authorize. See, e.g.,
N.C.G.S. §§ 55-1-61 to -65 (permitting ratification of defective corporate actions under
the North Carolina Business Corporation Act); Holland v. Warren, 2020 NCBC
LEXIS 146, at *20 (N.C. Super. Ct. Dec. 15, 2020) (noting that courts have interpreted
N.C.G.S. § 55A-8-31(a)(1) to permit a nonprofit board to cure an improper act or
87 (Br. Opp’n Def.’s Mots. 9.)
88 (Reply Supp. Def.’s Br. 6 n.4.)

transaction through ratification). 	Just like any other corporate action, a failure to
comply with procedural prerequisites prior to initiating litigation can be ratified by a
corporate entity, such that the prior act “is given effect as if originally authorized by
[that corporate entity].” 	King Fa, LLC, 248 N.C. App. at 226; see Gao v. Sinova
Specialties, Inc., 2018 NCBC LEXIS 70, at *14–15 (N.C. Super. Ct. July 16, 2018)
(“[I]t is immaterial whether the board complied with the bylaws prior to asserting its
original and first amended counterclaims” because “the board subsequently complied
with 	its 	bylaws 	and 	ratified 	Sinova 	US’s 	engagement 	of 	counsel 	and 	the
counterclaims” and “filed its second amended counterclaims after the board approved
filing the counterclaims[.]”).
47. 	The four cases the FSU Board relies on in opposition do not compel a
different result. 	Two of the cases are silent as to whether the corporate litigants
attempted to later authorize the improperly initiated litigation by ratification. 	See
Peninsula Prop. Owners Ass’n v. Crescent Res., LLC, 171 N.C. App. 89, 97 (2005);
Atkinson v. Lexington Cmty. Ass’n, 2023 NCBC LEXIS 101, at *9 (N.C. Super. Ct.
Aug. 16, 2023) (dismissing claims without prejudice because the association “could
obtain member approval in the future and file a new lawsuit[ ]”). 	Moreover, the
courts in the other two cases expressly emphasized the plaintiff associations’ post-
suit actions. See Willowmere, 370 N.C. at 561 (noting that “[t]here is no evidence in
this case suggesting that any member of the [plaintiff associations] opposed plaintiffs’
prosecution of this suit[ ]”);89 Homestead at Mills River Prop. Owners Ass’n v. Hyder,
89 Although the issue was not before the Supreme Court, the Court of Appeals noted in its
decision in Willowmere that “plaintiffs have not presented any evidence that the boards took

No. COA17-606, 2018 N.C. App. LEXIS 622, at *9 (N.C. Ct. App. June 19, 2018)
(unpublished) (noting that, in contrast to Willowmere, “there was ample evidence
indicating that a number of Plaintiff’s members opposed this lawsuit[ ]”).90
48. 	Courts in other jurisdictions have also held that a corporate entity may later
ratify the initiation of litigation that was unauthorized at the time of filing. See, e.g.,
First Telebanc Corp. v. First Union Corp., No. 02-80715-CIV-GOLD/TURNOFF, 2007
U.S. Dist. LEXIS 114903, at *26 (S.D. Fla. Aug. 6, 2007) (“In accordance with Florida
law, . . . the board may subsequently ratify the filing of the lawsuit.”); In re Council
of Unit Owners of the 100 Harborview Drive Condo., 552 B.R. 84, 89 (Bankr. Md.
2016) (“[W]hen an officer has acted without authority in bringing a suit, the
corporation may ratify the action, which is the equivalent of the officer’s having had
original authority to bring the lawsuit.” (citation and quotation marks omitted));
Cmty. Collaborative of Bridgeport, Inc. v. Ganim, 698 A.2d 245, 254–55 (Conn. 1997)
(affirming trial court’s finding that board did not ratify officer’s unilateral initiation
of litigation); City of McCall v. Buxton, 201 P.3d 629, 640 (Idaho 2009) (“[T]he fact
that the city manager did not have the authority to authorize the commencement of
action in accord with their bylaws to ratify the filing of the lawsuit after the issue of standing
was raised,” 250 N.C. App. 292, 304 (2016), suggesting that the plaintiff boards of directors
could have retroactively ratified their earlier decision to file litigation by subsequent board
action.
90 In opposing ratification, the FSU Board also relies on Town of Midland v. Harrell, in which
the Supreme Court of North Carolina stated that “[s]ubsequent events cannot confer
standing retroactively.” 	385 N.C. 365, 371 (2023). 	But as the Court has noted above, the
concepts of standing and authorization to act are “legally and conceptually distinct issue[s,]”
United Daughters of the Confederacy, 383 N.C. at 626, and ratification implicates issues of
authorization, not standing. Thus, Town of Midland is inapposite.

this lawsuit does not require dismissal where the city council later ratified that action
in a meeting that complied with the open meeting laws.”); City of Topeka v. Imming,
344 P.3d 957, 964 (Kan. Ct. App. 2015) (“[T]he City Council could not ratify the City
Manager’s decision to file this lawsuit without an open, affirmative vote on the matter
or by taking some action consistent with ratification.”); McGuire Performance Sols.,
Inc. v. Massengill, 904 A.2d 971, 978 (Pa. Super. Ct. 2006) (determining that
corporation ratified the litigation by passive acquiescence).
49. 	The ACC has submitted a 27 February 2024 Affidavit of ACC Secretary and
Deputy Commissioner Brad Hostetter (“Hostetter”)91 and a 10 January 2024 e-mail
from ACC Commissioner James J. Phillips (“Phillips”)92 in support of its argument
that the Conference ratified the initiation of this litigation. In his 10 January 2024
e-mail, Phillips provided notice of a special meeting of the ACC Board of Directors for
12 January 2024.93 	Although special meetings of the Board usually require three
91 (Hostetter Aff.)
92 (Sur-Reply Def.’s Mots. Ex. A [hereinafter “Jan. 10 E-mail”], ECF No. 46.1.)
93 (See Jan. 10 E-mail.) The FSU Board alleges that this notice was ineffective because FSU
did not receive notice of this special meeting. (See Reply Supp. Def.’s Mots. 1.) This argument
is without merit. As the Conference notes in its sur-reply, the complaint in the Florida Action
requests that FSU “be deemed to have issued its formal notice of withdrawal from the ACC
under Section 1.4.5 of the ACC Constitution effective August 14, 2023.” 	(Sur-Reply Def.’s
Mots. 4 n.1 (quoting Fla. Compl. 33).) Section 1.5.1.3 of the ACC Constitution provides that
“[t]he CEO of any Member that . . . withdraws from the Conference pursuant to Section 1.4.5
shall automatically cease to be a Director . . . , and shall cease to have the right to vote on
any matter as of the effective date of the . . . withdrawal.” In addition,
[d]uring the period between the delivery of a notice of . . . withdrawal and the
effective 	date 	of 	the . . . withdrawal, 	the 	Board . . . may 	withhold 	any
information from, and exclude from any meeting . . . and/or any vote, the
Director . . . of 	the . . . withdrawing 	member, 	if 	the 	Board 	determines
that . . . such attendance, access to information or voting could present a

days’ notice,94 Hostetter avers that the required three-fourths of all Directors waived
this notice requirement.95 Furthermore, Hostetter avers that a quorum of Directors
attended the special meeting and “unanimously approved the filing of the [FAC] in
this matter, inclusive of the original claims in the Complaint filed on December 21,
2023.”96 In his affidavit, Hostetter confirms that the 12 January 2024 vote met the
“Absolute 	Two-Thirds” 	majority 	vote 	required 	by 	Section 	1.6.2 	of 	the 	ACC
Constitution to initiate “material litigation involving the Conference[.]”97
50. 	Thus, the record clearly demonstrates that, by approving the filing of the
FAC, which includes the original declaratory judgment claims as they were asserted
in the original Complaint, the ACC Board of Directors “had full knowledge of all
material facts” and “intended to ratify” the filing of the Complaint on 21 December
2023. 	Hilco 	Transp., 	Inc., 	2016 	NCBC 	LEXIS 	5, 	at 	*29. 	In 	light 	of 	this
uncontroverted evidence, the Court concludes that the ACC was properly authorized
to bring this litigation.
conflict of interest for the . . . withdrawing member or is otherwise not in the
best interests of the Conference, as determined by the Board.
(ACC Const. § 1.5.1.3.) The Court agrees with the ACC that “[a] meeting to decide whether
affirmative claims should be made against FSU . . . presented just such a conflict of
interest[,]” (Sur-Reply Def.’s Mots. 4 n.1), such that the ACC was not required to provide the
FSU Board with notice of the 12 January 2024 special meeting.
94 (ACC Const. § 1.5.1.5.1.)
95 (See Hostetter Aff. ¶ 3 (referencing ACC Const. § 1.5.1.5.2).)
96 (Hostetter Aff. ¶¶ 3, 5.)
97 (See Hostetter Aff. ¶ 5.)

51. 	Because the Court concludes both that the ACC had standing to bring this
lawsuit at the time it filed its original Complaint and that the ACC Board of Directors
ratified the initiation of this litigation three weeks later, the Court will deny the FSU
Board’s Motion to Dismiss to the extent the FSU Board contends this action should
be dismissed for failure to comply with any conditions precedent.
3. 	Sovereign Immunity
52. 	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). 	The
ACC 	contends 	that 	Farmer 	controls 	and 	establishes 	that 	FSU 	has 	expressly
consented to suit in the courts of the State of North Carolina.98
53. 	The FSU Board, however, argues that the ACC’s reliance on Farmer is
inapposite because “it pertains to a different statutory scheme—the North Carolina
98 (See Br. Opp’n Def.’s Mots. 10–12; Sur-Reply Def.’s Mots. 12–14.)

Nonprofit 	Corporation 	Act 	[the 	‘NCNCA’]”99—rather 	than 	to 	the 	Uniform
Unincorporated Nonprofit Association Act (the “UUNAA”), N.C.G.S. §§ 59B-1 to -15,
under which the ACC is organized. 	The FSU Board contends that, unlike the
defendant 	state 	university 	in 	Farmer, 	it 	neither 	“registered 	as 	a 	nonprofit
corporation[ ]” nor “has it been issued a certificate of authority to operate in this
state[.]”100 The FSU Board argues that because “[t]hese requirements simply do not
apply to members of unincorporated associations,” the courts of North Carolina
cannot exercise jurisdiction over it under either the UUNAA or Farmer.101
54. 	But the FSU Board’s focus on the NCNCA is misplaced. 	As the ACC
demonstrates in its opposition brief,102 Farmer sets out the general framework for
determining what constitutes “consent” to suit in North Carolina post-Hyatt III. This
Court must therefore look to Farmer to determine whether the FSU Board has waived
its sovereign immunity based on the allegations in the FAC.
55. 	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
99 (Br. Supp. Def.’s Mots. 14.)
100 (Br. Supp. Def.’s Mots. 14; see also Reply Supp. Def.’s Mots. 8–9.)
101 (Br. Supp. Def.’s Mots. 15; see also Reply Supp. Def.’s Mots. 8–9.)
102 (See Br. Opp’n Def.’s Mots. 9–12.)

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.
56. 	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
271, our Supreme Court then set about determining whether Troy University had
consented to waive its sovereign immunity in North Carolina state court.
57. 	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 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, 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.
58. 	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, 139 S. Ct. 1435, 1441 (2019) (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, 139 S. Ct. at 1443). 	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).
59. 	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.
60. 	Farmer found 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 N.C.G.S.
§ 55-15-05(b)).
61. 	The Court shall now apply the framework created by our Supreme Court in
Farmer to determine whether, based on the allegations in the FAC and the current
record, the FSU Board has consented to suit in North Carolina and thereby waived
its sovereign immunity for purposes of this action.
62. 	The Court begins with the presumption that the State of Florida may not
“be sued by a private party without its consent in the courts of [this] State.” 	Hyatt
III, 587 U.S. at 233. Florida has extended its sovereign immunity to include its public

universities because “[u]niversity boards of trustees are a part of the executive branch
of state government.” 	Fla. Stat. Ann. § 1001.71(3). 	The Court therefore concludes
that, “as a general matter, [the FSU Board] 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 the FSU Board explicitly
waived its sovereign immunity to suit in North Carolina.
63. 	The UUNAA contains the following sue and be sued clause: “A nonprofit
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.”103 N.C.G.S. § 59B-8(1). In addition,
the 	UUNAA 	expressly 	permits the 	ACC, 	as a North 	Carolina 	unincorporated
nonprofit association, and the FSU Board, as a Member of the ACC,104 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). 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, 139 S. Ct. at 1441), the Court must next analyze the FSU Board’s activities
103 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.” N.C.G.S. § 59B-8 off. cmt. ¶ 1.
104 (See FAC ¶¶ 1–2.)

in this State and decide if they are of a commercial or governmental nature. In doing
so, the Court views the allegations in the FAC as true and, if appropriate, may also
consider matters outside the FAC. 	See Parker, 243 N.C. App. at 96–97 (under Rule
12(b)(2), “[w]hen neither party submits evidence, . . . [t]he 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” (cleaned up)).
64. 	Since it joined the ACC in 1991, FSU has engaged in “continuous and
systematic membership and governance activities” that “arise out of its membership
in and management of the Conference[.]”105 For example, the President of FSU is a
member of the ACC’s Board of Directors and “regularly attend[s] ACC meetings held
in the State of North Carolina.”106 	“Three of the four most recent in-person [ACC]
Board of Directors meetings were held in North Carolina[,]” and FSU’s President
“attended each of these meetings either via Zoom or in person.”107 	In addition, the
ACC alleges that FSU’s Presidents, Athletic Directors, and Head Coaches have
“played an active role in the administration of ACC affairs[ ]” and in “advancing the
mission of the ACC[,]” and lists in the FAC the numerous Conference leadership and
committee positions held by these individuals over the past decade.108 Moreover, the
105 (FAC ¶ 7; see FAC ¶¶ 8, 36.)
106 (FAC ¶ 8.)
107 (FAC ¶ 10 (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[ ]”).)
108 (FAC ¶ 9; see also FAC ¶¶ 11 (indicating that the ACC Board of Directors, including the
FSU President, voted to relocate the Conference’s headquarters to Charlotte to secure a $15

FSU President has approved the ACC’s execution of several media rights agreements
entered into on behalf of all of the ACC’s Member Institutions.109 	The FSU Board
has not sought to refute any of these allegations.
65. 	As a “collegiate academic and athletic conference[,]”110 the ACC’s 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.”111 More
specifically, the ACC 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[.]”112
66. 	Historically, the ACC’s main source of income has consisted of the payments
it receives in exchange for granting exclusive media rights to broadcast athletic
million financial incentive derived from North Carolina taxpayer dollars), 16 (describing
FSU’s participation in various ACC championship events held in North Carolina), 57–67
(explaining the benefits of the Grant of Rights and the FSU President’s execution thereof),
83–104 (discussing the same with respect to the Amended Grant of Rights), 120–22
(discussing how FSU convinced the ACC to distribute “a larger share of post-season revenues
to the Members that generated those revenues, rather than equally among all Members[ ]”).)
109 (See, e.g., FAC ¶¶ 45 (alleging approval of the 2010 Multi-Media Agreement), 104 (alleging
approval of the ESPN Agreements).)
110 (FAC ¶ 28.)
111 (FAC ¶ 38 (quoting ACC Const. § 1.2.1).)
112 (ACC Const. §§ 1.2.1(c), (g), (i).)

events and competitions involving athletes from ACC Member Institutions.113 	“By
aggregating the Media Rights from each Member Institution, the Conference was
able to increase the total value of those rights[.]”114 The Conference then distributes
the payments it receives under these media rights agreements, totaling hundreds of
millions of dollars, to its Members, including FSU.115
67. 	Based on this record, 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, FSU’s Conference-related activities in this State are also
commercial, rather than governmental, in nature. 	See Thacker, 139 S. Ct. at 1443
(describing “governmental activities” as the “the kinds of functions private parties
typically do not perform[ ]”). Because 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, 	and 	because 	FSU 	engaged 	in
extensive commercial activity in North Carolina as described above, Farmer instructs
that FSU “explicitly waived its sovereign immunity” to suit in this State. 	Farmer,
382 N.C. at 373.
113 (See FAC ¶¶ 12–14, 48–51 (estimating potential losses of “$72 Million to over $200
Million[ ]” in media rights payments alone should a Member Institution withdraw from the
ACC).)
114 (FAC ¶ 60.)
115 (See FAC Summary of Claims, ¶¶ 14, 44, 58, 70–71, 73, 78, 109–11.)

68. 	In its supporting and reply briefs, the FSU Board argues that the statutory
waiver of sovereign immunity found in Fla. Stat. Ann. § 1001.72(1), which states that
“[e]ach board of trustees shall be a public body corporate . . . , with all the powers of
a body corporate, including the power to . . . contract and be contracted with, to sue
and be sued, [and] to plead and be impleaded in all courts of law or equity,” does not
extend beyond the State of Florida.116 	The FSU Board contends that, unless
“expressly stated in the statute,” “the phrase ‘all courts’ necessarily refers only to all
courts in the State of Florida.”117 	Although the Court questions the FSU Board’s
narrow reading of this statute, see Storey Mt., LLC v. George, 357 So. 3d 709, 715 (Fla.
4th Dist. Ct. App. 2023) (“The use by the Legislature of [a] comprehensive term
indicates an intent to include everything embraced within the term.” (alteration in
original) 	(citation 	omitted)), 	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, 373.118
116 (See Br. Supp. Def.’s Mots. 13; Reply Supp. Def.’s Mots. 9.)
117 (Br. Supp. Def.’s Mots. 13.)
118 The Court notes that the United States Supreme Court denied Troy University’s petition
for writ of certiorari. See Troy Univ. v. Farmer, 143 S. Ct. 2561 (2023), cert denied.

69. 	Accordingly, the Court concludes that, under Farmer, the FSU Board has
waived its sovereign immunity and is subject to this suit in North Carolina. 	The
Court will therefore deny the FSU Board’s Motion to Dismiss to the extent it seeks
dismissal on grounds of sovereign immunity.119
III.
MOTION TO DISMISS PURSUANT TO RULE 12(b)(7)
A. 	Legal Standard
70. 	Under Rule 12(b)(7), a necessary party must be joined to an action. 	See
Strickland v. Hughes, 273 N.C. 481, 485 (1968). A necessary party is any person or
entity with a material interest in the subject matter of the controversy, and whose
interests will be directly affected by an adjudication thereof. 	See Equitable Life
Assurance Soc’y of the U.S. v. Basnight, 234 N.C. 347, 352 (1951). 	Dismissal for
failure to join a necessary party is proper only if the defect cannot be cured, and any
such dismissal must be without prejudice. 	See Lambert v. Town of Sylva, 259 N.C.
App. 294, 307 (2018).
119 The ACC also argues that the FSU Board made a general appearance in this matter when
it opposed the ACC’s 17 January 2024 Amended Motion to Seal and therefore waived its
sovereign immunity because it did not specifically reserve its right to challenge personal
jurisdiction in its sealing opposition. (See Br. Opp’n Def.’s Mots. 14; see generally Def.’s Br.
Opp’n Pl.’s Am. Mot. Seal, ECF No. 15.) In the parties’ joint Stipulation of Service, however,
the first filing the FSU Board made in this action, the FSU Board represented that “it does
not waive and preserves all jurisdictional defenses it may have.” (Stipulation Service, ECF
No. 8.) 	Our Court of Appeals has held that “[w]hen a defendant promptly alleges a
jurisdictional defense as his initial step in an action, he fulfills his obligation to inform the
court and his opponent of possible jurisdictional defects.” 	Ryals v. Hall-Lane Moving &
Storage Co., 122 N.C. App. 242, 247–48 (1996) (emphasis added). 	The Court therefore
concludes that, under Ryals, the ACC’s argument is without merit.

B. 	Analysis
71. 	The FSU Board argues in conclusory fashion that the ACC’s declaratory
judgment claims in the FAC should be dismissed because “the ACC did not name the
actual party to the Grants of Rights—FSU.”120
72. 	This argument is a non-starter. Although the signature blocks for both the
Grant of Rights and Amended Grant of Rights list “FLORIDA STATE UNIVERSITY”
as the “Member Institution” and bear the signature of the individual serving as
President of FSU at the time of execution,121 the FSU Board concedes that it, rather
than the university, is “the contracting agent of the university[ ]” and has “all the
powers of a body corporate, including the power to . . . contract and be contracted
with, to sue and be sued, [and] to plead and be impleaded in all courts of law or
equity[.]” 	Fla. Stat. Ann. §§ 1001.72(1), (3).122 	Consequently, Florida courts have
held that “it is improper to sue ‘Florida State University’ since the Florida Legislature
has designated university boards of trustees as the proper entities with the power to
sue and be sued.” Broer v. Fla. State Univ., No. 2021 CA 000859, 2022 WL 2289143,
at *2 (Fla. Circ. Ct. June 17, 2022) (dismissing defendant “Florida State University”
with prejudice); see Doe v. New Coll. of Fla., No. 8:21-cv-1245-CEH-CPT, 2023 U.S.
120 (Br. Supp. Def.’s Mots. 16.)
121 (See Grant of Rights 9; Am. Grant of Rights 7.) Citations to the page numbers in these
exhibits refer to the electronic PDF page numbers as the signature pages do not contain page
numbers.
122 (See Br. Supp. Def.’s Mots. 15.)

Dist. LEXIS 173689, at *21 (M.D. Fla. Sept. 28, 2023) (dismissing defendant “New
College of Florida” as an improperly named defendant).
73. 	Indeed, FSU has acknowledged in litigation that “Florida State University
is not endowed with an independent corporate existence and so lacks the capacity to
sue or be sued in its own name[.]”123 Given that the FSU Board acknowledges that
“Florida State University” has no independent corporate existence and that the
Florida courts have held that the FSU Board is the proper party to answer claims
against “Florida State University,” the Court will deny the FSU Board’s Motion to
Dismiss the ACC’s first and second claims for failure to join “Florida State University”
as a necessary party pursuant to Rule 12(b)(7).
IV.
MOTION TO DISMISS PURSUANT TO RULE 12(b)(6)
A. 	Legal Standard
74. 	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 v. Brit. Am. Tobacco, PLC, 371 N.C. 605, 615 (2018) (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
123 (Br. Opp’n Def.’s Mots. Ex. 4 Pompura v. Fla. State Univ., No. 20 CA 1080, Florida State
University’s Limited Appearance to Quash Attempted Service and Dismiss ¶ 4 (Fla. Cir. Ct.
July 22, 2020), ECF No. 31.4.)

within the complaint.” 	Donovan, 114 N.C. App. at 526 (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 “view[ed] as true and in the
light most favorable to the non-moving party” (cleaned up)).
75. 	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],
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)).
76. 	“[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 Cnty., 355 N.C. 161, 166 (2002)).
B. Analysis
1. 	Breach of Grant of Rights and Amended Grant of Rights
77. 	The ACC alleges that, by initiating the Florida Action, the FSU Board has
breached its obligation under the Grant of Rights Agreements not to take any actions
that affect the validity, enforcement, irrevocability, and/or exclusivity of those

agreements, as well as the FSU Board’s obligation of good faith and fair dealing that
is attendant to all contracts.124 In response, the FSU Board does not challenge that
it breached the agreements (assuming those agreements are valid) but instead
contends that, despite having received hundreds of millions of dollars under the
Grant of Rights Agreements, it never entered into those agreements in the first place.
The FSU Board argues that because it is the only entity that has statutory authority
to enter into contracts on behalf of FSU, the ACC’s failure to allege that “the FSU
Board approved either Grant of Rights at any FSU Board meeting, including after
appropriate notice,” warrants dismissal of the ACC’s contract claim.125
78. 	“The 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). 	As our Court of Appeals has noted, “[o]ur system of notice
pleading means the bar to plead a valid contract is low.” Lannan v. Bd. of Governors
of Univ. of N.C., 285 N.C. App. 574, 596 (2022) (citation omitted). Consequently, the
ACC need only plead “offer, acceptance, [and] consideration[ ]” to establish the
existence of a valid contract. Id.
79. 	The ACC adequately alleges each element of its breach of contract claim in
the FAC. 	The ACC alleges that, “in order to secure a long-term media rights
agreement and thus ensure the payment of predictable sums over time,” the Member
124 (FAC ¶¶ 209–11.)
125 (Br. Supp. Def.’s Mots. 15–16.)

Institutions entered into the Grant of Rights in April 2013.126 As pleaded in the FAC,
“each 	Member 	Institution 	granted 	the 	Conference 	its 	Media 	Rights 	and, 	in
exchange, . . . the 	Conference 	negotiated 	revisions 	to 	the 	2010 	Multi-Media
Agreement, to increase the [amounts] paid[ ]” and subsequently “distributed the
funds to the Member Institutions.”127
80. 	With respect to the Grant of Rights, the ACC alleges that (i) the FSU Board
“agreed to and executed the Grant of Rights on April 19, 2013[ ]”;128 (ii) FSU’s
President “was authorized to agree to and execute the Grant of Rights on April 19,
2013 on behalf of [the FSU Board]”;129 and (iii) FSU received its pro rata share of the
fees paid by ESPN to the ACC pursuant to the Second Amendment to the 2010 Multi-
Media Agreement and the Grant of Rights.130 	The ACC then alleges that, by filing
suit in Florida, the FSU Board breached various obligations under the Grant of
Rights.131
126 (FAC ¶¶ 56–57, 69.)
127 (FAC ¶ 58.)
128 (FAC ¶ 66; see also Grant of Rights ¶ 6 (“[E]ach Member Institution represents and
warrants to the Conference (a) that such Member Institution . . . has the right, power and
capacity to execute, deliver and perform this Agreement and to discharge the duties set forth
herein[.]”).)
129 (FAC ¶ 67; see also Grant of Rights ¶ 6 (“[E]ach Member Institution represents and
warrants 	to 	the 	Conference . . . (b) 	that 	execution, 	delivery 	and 	performance 	of 	this
Agreement and the discharge of all duties contemplated hereby, have been duly and validly
authorized by all necessary action on the part of such Member Institution[.]” (emphasis
added)); ACC Const. § 1.5.1.1 (“[E]ach Director shall have the right to take any action or any
vote on behalf of the Member it represents[.]”).)
130 (FAC ¶¶ 68, 71, 73, 111.)
131 (See FAC ¶¶ 205–11.)

81. 	With respect to the Amended Grant of Rights, the ACC alleges that the
Member Institutions agreed to extend the term in the original Grant of Rights in
exchange for receiving increased fees under the ESPN Agreements.132 	The ACC
alleges that (i) the FSU Board “accepted and executed the Amended Grant of
Rights[ ]”;133 (ii) FSU’s President “was authorized to enter into and accept the
Amended Grant of Rights on behalf of [the FSU Board]”;134 and (iii) FSU received a
portion of the fees paid by ESPN to the ACC under the ESPN Agreements and the
Amended Grant of Rights.135 	The ACC then alleges that the FSU Board breached
various obligations under the Amended Grant of Rights by initiating the Florida
Action.136
82. 	The ACC also contends that it has adequately pleaded waiver and equitable
estoppel to preclude the FSU Board from denying that it is legally bound by the Grant
of Rights Agreements.137 The affirmative defenses of waiver and equitable estoppel
“concern whether a valid and enforceable agreement may be the subject of a legal
action based on conduct that occurs after the parties enter into a contract[.]” Window
132 (See FAC ¶¶ 84, 87–90, 109.)
133 (FAC ¶ 99.)
134 (FAC ¶ 100.)
135 (FAC ¶¶ 110–11; see also Amended Grant of Rights ¶ 3 (“Except as specifically modified
by this Amendment, the terms of the [Grant of Rights] will remain in full force and effect.”).)
136 (See FAC ¶¶ 205–11.)
137 (See Br. Opp’n Def.’s Mots. 16.)

World of N. Atlanta, Inc. v. Window World, Inc., 2021 NCBC LEXIS 82, at *18 (N.C.
Super. Ct. Sept. 22, 2021).
83. 	“The essential elements of waiver are (1) the existence, at the time of the
alleged waiver, of a right, advantage, or benefit; (2) the knowledge, actual or
constructive, of the existence thereof; and (3) an intention to relinquish such right,
advantage or benefit.” Fetner v. Rocky Mount Marble & Granite Works, 251 N.C. 296,
302 (1959). The doctrine of equitable estoppel “arises when an individual, by his acts,
representations, 	admissions, 	or by 	his 	silence 	when 	he 	has 	a 	duty 	to 	speak,
intentionally or through culpable negligence induces another to believe that certain
facts exist, and such other person rightfully relies and acts upon that belief to his
detriment.” Thompson v. Soles, 299 N.C. 484, 487 (1980). Under this doctrine, “the
party whose words or conduct induced another’s detrimental reliance may be
estopped to deny the truth of his earlier representations in the interests of fairness
to the other party.” Whitacre P’ship v. Biosignia, Inc., 358 N.C. 1, 17 (2004).
84. 	The ACC alleges in the FAC that the “purpose of the Grant of Rights and
Amended Grant of Rights was to permit the ACC to negotiate various agreements
with ESPN and provide ESPN the Media Rights for its Member Institutions,
including [FSU], in exchange for . . . [f]ees[.]”138 	The ACC further alleges that the
FSU Board “knowingly and voluntarily agreed . . . to transfer ownership of its Media
Rights to the ACC through June 30, 2036[ ]”139 “for the purpose of receiving the
138 (FAC ¶ 186.)
139 (FAC ¶ 197.)

benefits generated by these contracts[,]”140 “regardless of whether [FSU] remained a
Member Institution of the Conference.”141 The allegations in the FAC also state that,
since 2013, the FSU Board “substantially and materially benefitted from the Grant
of 	Rights 	and 	Amended 	Grant 	of 	Rights[ ]”142 	by 	receiving 	its 	share 	of 	the
“distributions from [the] revenue generated by the Grant of Rights and Amended
Grant of Rights[.]”143 	Based on these allegations, the ACC argues that, even if the
FSU Board “did not vote on these agreements despite accepting their benefits[,]”144
the FSU Board is “estopped from challenging the validity or enforceability of the
Grant of Rights or Amended Grant of Rights, or has waived its right to contest [their]
validity or enforceability . . . as a result of its conduct[.]”145
85. 	At this stage, the Court concludes that the ACC has sufficiently pleaded that
the FSU Board approved the execution of both the Grant of Rights and Amended
Grant of Rights. 	The Court further concludes that the ACC has also sufficiently
pleaded that, regardless of whether the FSU Board approved the Grant of Rights
Agreements, the FSU Board should be estopped from challenging or has waived its
right to challenge these agreements by its conduct in accepting the benefits of these
140 (FAC ¶ 200.)
141 (FAC ¶ 197.)
142 (FAC ¶ 191.)
143 (FAC ¶ 187.)
144 (Br. Opp’n Def.’s Mots. 16.)
145 (FAC ¶ 203.)

agreements for many years without protest. 	Accordingly, the Court will deny the
FSU Board’s Motion to Dismiss the ACC’s claim for breach of the Grant of Rights and
Amended Grant of Rights.
2. 	Declaratory Judgment Claims
86. 	The ACC seeks a judicial declaration that (i) the Grant of Rights Agreements
are valid and enforceable contracts; and (ii) the FSU Board is estopped from making
or has waived by its conduct any challenge to the Grant of Rights Agreements.146 The
FSU Board seeks dismissal of these claims on the same basis that it seeks dismissal
of the ACC’s breach of contract claim.147 Because the Court has concluded that the
ACC’s claim for breach of the Grant of Rights Agreements should survive the FSU
Board’s Motion to Dismiss, the Court will likewise permit the ACC’s declaratory
judgment claims based on those agreements to proceed.
3. 	Breach of Obligation to Protect Confidential Information
87. 	The FSU Board next seeks to dismiss the ACC’s claim that the FSU Board
breached its obligation to keep confidential the terms of the ESPN Agreements by
disclosing some of those terms at its 22 December 2023 meeting and by publicly filing
the complaint containing some of those terms in the Florida Action.148 	The FSU
Board argues that “neither FSU nor the FSU Board was ever a party to [the ESPN
146 (FAC ¶¶ 173–203.)
147 (See Br. Supp. Def.’s Mots. 15–16.)
148 (See Br. Supp. Def.’s Mots. 16–18.)

Agreements] or entered into any confidentiality agreement with the ACC,”149 and,
furthermore, that the FSU Board does not owe “any duties to the ACC beyond those
reflected in the ACC’s Constitution and [Bylaws].”150
88. 	“[A]n implied-in-fact contract ‘is valid and enforceable as if it were express
or written.’ ” 	Lannan, 285 N.C. App. at 596 (quoting Snyder v. Freeman, 300 N.C.
204, 217 (1980)). “A valid contract may be implied in light of the conduct of the parties
and under circumstances that make it reasonable to presume the parties intended to
contract with each other.” 	Se. Caissons, LLC v. Choate Constr. Co., 247 N.C. App.
104, 113 (2016) (citation omitted). Thus, the ACC need only “plead offer, acceptance,
and consideration[ ]” to plead a valid implied-in-fact contract. Lannan, 285 N.C. App.
at 597.
89. 	The ACC alleges that, on behalf of its Member Institutions, it entered into
the ESPN Agreements with ESPN on 21 July 2016.151 	The ESPN Agreements
contain the following terms:
Each party shall maintain the confidentiality of this Agreement and its
terms, and any other Confidential Information, except when disclosure
is[ ] . . . to each [Member] Institution, provided that each [Member]
Institution shall agree to maintain the confidentiality of this Agreement,
subject to the law applicable to each such [Member] Institution[.]152
149 (Br. Supp. Def.’s Mots. 16–17.)
150 (Br. Supp. Def.’s Mots. 18; Reply Supp. Def.’s Mots. 11.)
151 (See FAC ¶ 78.)
152 	(2016 	Multi-Media 	Agreement 	Confidentiality 	Provision 	¶ 21.11; 	ACC 	Network
Agreement Confidentiality Provision ¶ 18.11; see also FAC ¶¶ 106–08, 214–18 (discussing
these terms).)

The ACC alleges that “[i]n an effort to preserve the confidentiality of the ESPN
Agreements, 	the 	Conference 	limits 	access 	to 	the 	[a]greements[ ]”153 	by 	only
“permit[ting] its Members to inspect and review the ESPN Agreements on request at
its Headquarters” and “only on agreement that the Member would not copy or
reproduce the provisions of the ESPN Agreements and would treat the information
as confidential.”154
90. 	The ACC alleges that counsel for the FSU Board reviewed the ESPN
Agreements at the ACC’s headquarters on 7 October 2022, 4 January 2023, and 1 and
2 August 2023.155 	The ACC further alleges that, on each occasion, “before being
provided access, and as a condition for such access, [the FSU Board] was advised that
the information in the ESPN Agreements was confidential.”156 The ACC then avers
that, after being advised of this confidentiality obligation, FSU’s counsel reviewed the
ESPN Agreements.157 The ACC finally alleges that, despite FSU’s counsel reviewing
the ESPN Agreements after receiving these warnings, the FSU Board publicly
disclosed confidential information from the ESPN Agreements at its 22 December
2023 meeting and in the publicly filed complaint in the Florida Action.158
153 (FAC ¶ 220.)
154 (FAC ¶ 221.)
155 (See FAC ¶¶ 138, 222.)
156 (FAC ¶ 139; see also FAC ¶¶ 140, 161, 223; FAC Ex. 12, ECF Nos. 11 (sealed), 12.12 (public
redacted) (reproducing an e-mail from the ACC’s general counsel informing counsel for the
FSU Board that the terms of the ESPN Agreements must be kept confidential).)
157 (See FAC ¶¶ 139, 162, 224.)
158 (See FAC ¶¶ 163–72, 225–29.)

91. 	Although the FSU Board focuses on the ACC’s failure to allege that FSU
signed a written agreement with the ACC or ESPN to maintain the confidentiality of
the ESPN Agreements,159 the ACC has alleged that it expressly advised counsel for
the FSU Board that counsel could review the ESPN Agreements at the ACC’s
headquarters only if FSU maintained the confidentiality of those agreements. 	As
such, the ACC has alleged that it made a legally binding, conditional offer to the FSU
Board, see, e.g., Fed. Reserve Bank of Richmond v. Neuse Mfg. Co., 213 N.C. 489, 493
(1938) (“In negotiating a contract the parties may impose any condition precedent, a
performance of which condition is essential before the parties become bound by the
agreement.”), 	which 	the 	FSU 	Board 	accepted 	by 	its 	counsel’s 	reviewing 	the
agreements, Snyder, 300 N.C. at 218 (“Acceptance by conduct is a valid acceptance.”).
92. 	Thus, although the FSU Board was not a party to the ESPN Agreements,
the Court concludes that the ACC has sufficiently pleaded at least an implied-in-fact
contract between the ACC and the FSU Board to maintain the confidentiality of the
terms of the ESPN Agreements as well as the FSU Board’s breach. Id. (“With regard
to a contract implied in fact, one looks not to some express agreement, but to the
actions of the parties showing an implied offer and acceptance.”).
93. 	The Court therefore will deny the FSU Board’s Motion to Dismiss the ACC’s
fourth cause of action for breach of contract concerning confidentiality.
159 (See Br. Supp. Def.’s Mots. 16–17.)

4. 	Breach of Fiduciary Duties Owed by the FSU Board to the ACC
94. 	The FSU Board next seeks to dismiss the ACC’s claim that FSU has
breached, and continues to breach, its fiduciary obligations to the Conference under
the ACC’s Constitution and Bylaws as well as under North Carolina law.160 The FSU
Board first argues that the ACC is a creature of statute governed by the UUNAA,
N.C.G.S. 	§§ 59B-1 	to 	-15, 	which 	imposes 	no 	fiduciary 	duties 	on 	members 	of
unincorporated nonprofit associations.161 The FSU Board additionally contends that
neither the ACC’s Constitution or Bylaws impose fiduciary duties on the Member
Institutions.162
95. 	The ACC argues in opposition that, by joining the Conference as a Member
Institution, FSU entered into a “common and joint venture with the other Member
Institutions,”163 and thereby has a fiduciary duty to “act in good faith, with due care,
and in a manner in the best interests of the Conference”164 under the ACC’s
Constitution and Bylaws “as well as [under] principles of statutory and common law
in North Carolina[.]”165 	The ACC further contends that, “[b]y seeking retroactive
160 (See Br. Supp. Def.’s Mots. 16–18; Reply Supp. Def.’s Mots. 10–11.)
161 (See Br. Supp. Def.’s Mots. 17.)
162 (See Br. Supp. Def.’s Mots. 17; Reply Supp. Def.’s Mots. 10.)
163 (FAC ¶ 240.)
164 (FAC ¶ 241.)
165 (FAC ¶¶ 246–48; see Br. Opp’n Def.’s Mots. 19–20.)

withdrawal [from the ACC] in the Florida Action, [FSU] has a clear, direct, and
material conflict of interest with the management of the Conference.”166
96. 	To state a claim for breach of fiduciary duty, a plaintiff must plead that “(1)
defendant[ ] owed the plaintiff a fiduciary duty; (2) the defendant breached that
fiduciary duty; and (3) the breach of fiduciary duty was a proximate cause of injury
to the plaintiff.” 	Chisum v. Campagna, 376 N.C. 680, 706 (2021). 	“For a breach of
fiduciary duty to exist, there must first be a fiduciary relationship between the
parties.” King v. Bryant, 369 N.C. 451, 464 (2017) (quoting Dalton v. Camp, 353 N.C.
647, 651 (2001)). 	“[A] fiduciary relationship is generally described as arising when
‘there has been a special confidence reposed in one who in equity and good conscience
is bound to act in good faith and with due regard to the interests of the one reposing
confidence.’ ” Dallaire v. Bank of Am., N.A., 367 N.C. 363, 367 (2014) (quoting Green
v. Freeman, 367 N.C. 136, 141 (2013)). 	“North Carolina recognizes two types of
fiduciary relationships: de jure, or those imposed by operation of law, and de facto, or
those 	arising 	from 	the 	particular 	facts 	and 	circumstances 	constituting 	and
surrounding the relationship.” 	Hager v. Smithfield E. Health Holdings, LLC, 264
N.C. App. 350, 355 (2019).
97. 	Under North Carolina law, “[a] joint venture exists when there is: ‘(1) an
agreement, express or implied, to carry out a single business venture with joint
sharing of profits, and (2) an equal right of control of the means employed to carry
out the venture.’ ” Sykes, 372 N.C. at 340–41 (quoting Rifenburg Constr., Inc. v. Brier
166 (FAC ¶ 263; see Br. Opp’n Def.’s Mots. 20.)

Creek Assocs. Ltd. P’ship, 160 N.C. App. 626, 632 (2003), aff’d per curiam, 358 N.C.
218 (2004)). “[E]ach party to the joint venture [has] a right in some measure to direct
the conduct of the other ‘through a necessary fiduciary relationship.’ ” 	Se. Shelter
Corp. v. BTU, Inc., 154 N.C. App. 321, 327 (2002) (quoting Cheape v. Town of Chapel
Hill, 320 N.C. 549, 562 (1987)).
98. 	Prior to North Carolina’s adoption of the UUNAA in 2006, the legal status
of unincorporated associations at common law was uncertain. See, e.g., Venus Lodge
No. 62, F. & A. M. v. Acme Benevolent Ass’n, 231 N.C. 522, 526 (1950) (“At common
law . . . an [unincorporated] association is not an entity, and has no existence
independent of its members. 	This being true, an unincorporated association has no
capacity at common law to contract; or to take, hold, or transfer property; or to sue or
be sued.” (cleaned up)); Goard v. Branscom, 15 N.C. App. 34, 38 (1972) (“The general
rule deducible from the cases which have passed on the question is that the members
of an unincorporated association are engaged in a joint enterprise[.]” (quoting 6 Am.
Jur. 2d, Associations and Clubs, § 31)). 	In light of this ambiguity, the legislature
adopted a modified version of the UUNAA for the “limited purpose of treating a group
that acts together in nonprofit matters as a . . . legal entity” that is “separate and
apart from its members for purposes of owning property and determining and
enforcing third-party rights, duties and procedures.” 	Robinson on N.C. Corp. Law
§ 35.03[1]; see N.C.G.S. § 59B-2 off. cmt. ¶¶ 1, 3; id. § 59B-5 off. cmt. ¶¶ 1–2.
99. 	Unlike North Carolina’s statutes governing corporations, N.C.G.S. §§ 55-8-
30, 31, nonprofit corporations, id. §§ 55A-8-30, 31, limited liability companies, id.

§§ 57D-2-21, 30, and partnerships, id. §§ 59-51, however, the UUNAA does not
contain provisions imposing fiduciary duties on members of an unincorporated
nonprofit association. 	Because the General Assembly has repeatedly shown that it
knows how to impose fiduciary duties on various corporate actors by statute in similar
contexts, the legislature should be presumed to have purposely chosen to exclude
imposing fiduciary duties on members of an unincorporated nonprofit association
under the UUNAA. 	See, e.g., N.C. Dep’t of Revenue v. Hudson, 196 N.C. App. 765,
768 (2009) (“When a legislative body includes particular language in one section of a
statute but omits it in another section of the same [statute], it is generally presumed
that the legislative body acts intentionally and purposely in the disparate inclusion
or 	exclusion.” 	(cleaned 	up)); 	see 	also 	In 	re 	D.L.H., 	364 	N.C. 	214, 	221 	(2010)
(recognizing that “the absence of a similar provision in [a related statute] seems to
indicate a legislative intent not to [reach the same result as under the related
statute]”); State v. Campbell, 285 N.C. App. 480, 491 (2022) (applying similar
reasoning when comparing two similar statutes).
100. 	Moreover, the Official Comment to the UUNAA explains that, “[b]ecause a
nonprofit association is made a separate legal entity, its members are not co-
principals.” N.C.G.S. § 59B-7 off. cmt. ¶ 3 (emphasis added); see also id. § 59B-7 off.
cmt. ¶ 1 (“At common law a nonprofit association was not a legal entity separate from
its members. 	Borrowing from the law of partnership, the common law viewed a
nonprofit association as an aggregate of its members. The members are co-principals.
Subsection (a) changes that.” (emphasis added)). A joint venture, however, “requires

that the parties to the agreement stand in the relation of principal, as well as agent,
as to one another.” Se. Shelter Corp., 154 N.C. App. at 327. As the FSU Board notes,
the ACC has not alleged that “the FSU Board (or any other individual [M]ember) on
its own can bind the ACC or other members through its conduct.”167 Because “[o]ur
Supreme Court has . . . held that a joint venture does not exist where each party to
an agreement cannot direct the conduct of the other[,]” Rifenburg Constr., Inc., 160
N.C. App. at 632 (citing Pike v. Wachovia Bank & Tr. Co., 274 N.C. 1, 10 (1968)), 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.168
101. 	In the absence of a de jure fiduciary relationship, the Court must determine
whether the allegations in the FAC are sufficient to demonstrate that the relationship
between the parties is one in which “there has been a special confidence reposed in
one who in equity and good conscience is bound to act in good faith and with due
regard to the interests of the one reposing confidence.” 	Dallaire, 367 N.C. at 367
(quoting Green, 367 N.C. at 141). 	“The standard for finding a de facto fiduciary
relationship is a demanding one: ‘Only when one party figuratively holds all the
cards—all the financial power or technical information, for example—have North
167 (Reply Def.’s Mots. 11.)
168 Although not yet adopted in North Carolina and thus not controlling, the Court notes that
the revised UUNAA expressly states that “[a] member does not have any fiduciary duty to
an unincorporated nonprofit association or to another member solely by reason of being a
member.” 	Rev. Unif. Unincorp. Nonprofit Ass’n Act § 17(a) (Nat’l Conf. Comm’rs on Unif.
State Laws 2011).

Carolina courts found that the special circumstance of a fiduciary relationship has
arisen.’ ” 	Lockerman v. S. River Elec. Membership Corp., 250 N.C. App. 631, 636
(2016) (quoting S.N.R. Mgmt. Corp. v. Danube Partners 141, LLC, 189 N.C. App. 601,
613 (2008)). The ACC has failed to plead such a de facto fiduciary relationship here.
102. 	Under the ACC’s Constitution, “all of the powers of the Conference shall be
exercised by or under the authority of the Board, and all of the activities and affairs
of the Conference shall be managed by or under the direction, and subject to the
oversight, of the Board[.]”169 The ACC Constitution further provides that “[t]he Board
shall be composed of a representative of each Member (each a ‘Director’)”170 and
“[e]ach Director shall be entitled to one vote each.”171 FSU is but one of fifteen ACC
Member Institutions172 and has the power to cast just one of the votes necessary to
approve any action taken by the ACC requiring Board approval. Conversely, the ACC
cannot take any action requiring Board approval without the approval of its Board of
Directors. 	As neither party can be said to “hold all the cards,” a de facto fiduciary
relationship between the ACC and the FSU Board does not exist on the pleaded facts.
103. 	The FSU Board makes one additional, albeit brief, argument in opposition
to the ACC’s breach of fiduciary duty claim, contending that “had the ACC [M]embers
169 (ACC Const. § 1.5.1.1; see id. § 1.6 (Board voting requirements); FAC ¶ 243.)
170 (ACC Const. § 1.5.1.2; see FAC ¶ 244 (“As a Member Institution, [FSU] designated its
President as a Member of the [ACC] Board of Directors.”).)
171 (ACC Const. § 1.6.2.)
172 (FAC ¶ 1.)

wished to subject themselves to the fiduciary duties the ACC seeks to impose, they
could 	have . . . included 	them 	in 	the . . . ACC 	Constitution 	and 	Bylaws[.]”173
Although the UUNAA “contains no rules concerning governance[,]” N.C.G.S. § 59B-3
off. cmt. ¶ 2, “the [constitution] and bylaws of an association may constitute a contract
between the organization and its members wherein the members are deemed to have
consented to all reasonable regulations and rules of the organization,”174 Master v.
Country Club of Landfall, 263 N.C. App. 181, 187 (2018) (quoting Gaston Bd. of
Realtors, Inc., 311 N.C. at 237).
104. 	The ACC argues that the “provisions of the ACC Constitution that address
conflicts of interest of withdrawing [M]embers[ ]” support its assertion that Member
Institutions owe a fiduciary obligation “to the [Conference] not to defeat or destroy its
common purpose.”175 	The Court disagrees. 	The provision on which the ACC relies
allows the ACC Board, in its discretion, to withhold information from or to exclude
from a meeting or vote an expelled or withdrawing Member if the Board determines
that a conflict of interest exists.176 	Whether such a conflict of interest exists is
therefore discretionary; whether fiduciary duties exist, however, is not. 	The ACC
does not point to any provision of the ACC’s Constitution or Bylaws that affirmatively
173 (Br. Supp. Def.’s Mots. 17.)
174 The parties do not dispute that the ACC’s Constitution and Bylaws are a contract between
the ACC and its Member Institutions. (FAC ¶¶ 233, 267; see Br. Supp. Def.’s Mots. 16; Br.
Opp’n Def.’s Mots. 8, 18.)
175 (Br. Opp’n Def.’s Mots. 20; see FAC ¶¶ 257–64.)
176 (See ACC Const. § 1.5.1.3.)

imposes fiduciary duties on current Members, nor is the Court able to find one. The
ACC’s breach of fiduciary duty claim therefore fails on this additional basis.
105. 	Because the FAC alleges that the ACC is an unincorporated nonprofit
association under the UUNAA,177 the ACC cannot establish the existence of a de jure
fiduciary relationship with FSU under a joint venture theory. 	Nor has the ACC
alleged sufficient facts to establish either the existence of a de facto fiduciary
relationship 	or 	a 	contractual 	imposition 	of 	fiduciary 	duties 	under 	the 	ACC’s
Constitution and Bylaws. Thus, dismissal of this claim pursuant to Rule 12(b)(6) is
proper both because “the complaint discloses some fact that necessarily defeats the
plaintiff’s claim[ ]” and “the complaint on its face reveals the absence of facts
sufficient to make a good claim[.]” Corwin, 371 N.C. at 615 (citation omitted).
106. 	The Court will therefore grant the FSU Board’s Motion to Dismiss the ACC’s
fifth claim for relief for breach of fiduciary duty and dismiss this claim with prejudice.
5. 	Breach of Implied Duty of Good Faith and Fair Dealing Under the ACC’s
Constitution and Bylaws
107. 	Finally, the FSU Board seeks to dismiss the ACC’s claim for breach of the
implied duty of good faith and fair dealing under the ACC’s Constitution and
Bylaws.178 	The FSU Board argues in conclusory fashion that “there is no basis in
North Carolina law for the ACC’s allegation that the FSU Board (or any other ACC
177 (FAC ¶¶ 1–2, 6, 9, 17, 22–23, 233, 236.)
178 (See Br. Supp. Def.’s Mots. 16–18; Reply Supp. Def.’s Mots. 10–11.)

[M]ember) 	owes 	any 	duties 	to 	the 	ACC 	beyond 	those 	reflected 	in 	the 	ACC’s
Constitution and [Bylaws].”179 The Court disagrees.
108. 	North Carolina law has long recognized that a covenant of good faith and
fair dealing is implied in every contract and requires the contracting parties not to
“do anything which injures the rights of the other to receive the benefits of the
agreement.” 	Bicycle Transit Auth. v. Bell, 314 N.C. 219, 228 (1985) (citation
omitted).180
109. 	As discussed above, to sustain a claim for breach of contract, the ACC need
only plead “(1) [the] existence of a valid contract and (2) breach of the terms of that
contract[,]” Poor, 138 N.C. App. at 26, to satisfy its burden under Rule 12(b)(6). The
ACC alleges, and the FSU Board concedes, that the “ACC Constitution and Bylaws
[are] . . . valid 	and 	enforceable 	contract[s] 	between 	the 	Conference 	and 	its
Members[,]” including FSU.181 The Conference further alleges that the FSU Board’s
“actions as detailed in this Amended Complaint violate its duty to act in good faith
and fairly deal with the Conference.”182 	Under our notice pleading standard, these
179 (Br. Supp. Def.’s Mots. 18; Reply Supp. Def.’s Mots. 11.)
180 The revised UUNAA expressly adopts this concept, providing that “[a] member shall
discharge the duties to the unincorporated nonprofit association and the other members and
exercise any rights under this [act] consistent with the governing principles and contractual
obligation of good faith and fair dealing.” Rev. Unif. Unincorp. Nonprofit Ass’n Act § 17(b)
(second alteration in original).
181 (FAC ¶ 267; see FAC ¶ 233; Br. Supp. Def.’s Mots. 16; Br. Opp’n Def.’s Mots. 8, 18.)
182 (FAC ¶ 271.)

allegations are sufficient to state a claim for breach of the duty of good faith and fair
dealing under the ACC’s Constitution and Bylaws.
110. 	The Court will therefore deny the FSU Board’s Motion to Dismiss the ACC’s
claim against FSU for breach of its obligation of good faith and fair dealing under
these governing documents.
V.
MOTION TO STAY
111. 	The FSU Board moves in the alternative to stay this first-filed action under
N.C.G.S. § 1-75.12 in favor of its second-filed Florida Action.183 	The FSU Board
argues that the Florida Action should take priority because it is “broader in scope,”184
“more comprehensive,”185 and in “the true proper forum for this case,”186 and also
because the ACC deserves no first-filing deference as a result of its improper forum
shopping.187
112. 	The ACC argues in opposition that a North Carolina court, not a Florida
court, should determine the claims of a North Carolina organization concerning the
validity and breach of contracts governed by North Carolina law and further that the
183 (See Def.’s Mots. ¶ 3.)
184 (Br. Supp. Def.’s Mots. 26.)
185 (Br. Supp. Def.’s Mots. 1.)
186 (Br. Supp. Def.’s Mots. 18.)
187 (See Br. Supp. Def.’s Mots. 21–25; Reply Supp. Def.’s Mots. 11–13.)

FSU Board has failed to offer any evidence that FSU would suffer “substantial
injustice” should this litigation proceed in North Carolina.188
113. 	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).
114. 	Our appellate courts have held that
[i]n determining whether to grant a stay under [N.C.]G.S. § 1-75.12, the
trial court may consider the following factors: (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 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.
Laws. Mut. Liab. Ins. Co. of N.C. v. Nexsen Pruet Jacobs & Pollard, 112 N.C. App.
353, 356 (1993).
115. 	“[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.” Id. at 357.
188 (See Br. Opp’n Def.’s Mots. 21–27.)

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.
116. 	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 [the FSU Board],” Muter, 203 N.C. App. at 131–32, and
therefore that the FSU Board’s Motion to Stay should be denied.
117. 	Much of the parties’ focus in their briefing and at the Hearing is on Lawyers
Mutual’s ninth factor—whether the ACC’s choice of its North Carolina home forum
is entitled to deference. North Carolina “[c]ourts generally give great deference to a
plaintiff’s choice of forum, and a defendant must satisfy a heavy burden to alter that
choice by . . . staying the case.” Wachovia Bank v. Deutsche Bank Tr. Co. Ams., 2006
NCBC LEXIS 10, at *18 (N.C. Super. Ct. June 2, 2006). 	This is particularly true
when the plaintiff chooses to file suit in its home forum. See, e.g., La Mack v. Obeid,
2015 NCBC LEXIS 24, at *16–17 (N.C. Super. Ct. Mar. 5, 2015) (“[A] plaintiffs’ choice
of forum ordinarily is given great deference, especially when plaintiffs select their
home forum to bring suit.”).
118. 	This 	Court 	has 	recognized, 	however, 	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), and
that “when plaintiffs file a complaint merely as a strategic maneuver to choose a

favorable forum, ‘first-filed’ priority may be denied.” 	La Mack, 2015 NCBC LEXIS
24, at *17. As our Court of Appeals has explained:
[I]n situations in which two suits involving overlapping issues are
pending in separate jurisdictions, priority should not necessarily be
given to a declaratory suit simply because it was filed earlier. 	Rather,
if the plaintiff in the declaratory suit was on notice at the time of filing
that the defendant was planning to file suit, a court should look beyond
the filing dates to determine whether the declaratory suit is merely a
strategic maneuver to achieve a preferable forum.
Coca-Cola Bottling Co. Consol. v. Durham Coca-Cola Bottling Co., 141 N.C. App. 569,
579 (2000).
119. 	The FSU Board argues that the ACC’s choice of forum is not entitled to
deference because the ACC engaged in improper “procedural fencing”189 by pre-
emptively filing this action against the FSU Board, the “true” or “natural” plaintiff,
without required ACC Board approval, “to attain what it presumes to be a more
favorable forum[ ]” after learning that the FSU Board had scheduled an emergency
board meeting for the following day.190 The FSU Board cites to numerous cases that
have denied first-filer advantage when a natural defendant files a declaratory
judgment action in what it perceives to be a more favorable forum when it is aware
that the natural plaintiff’s lawsuit is imminent.191
189 See Coca-Cola Bottling Co. Consol., 141 N.C. App. at 579 (“[A] declaratory suit should not
be used as a device for ‘procedural fencing.’ ”).
190 (Br. Supp. Def.’s Mots. 23–24; see Reply Supp. Def.’s Mots. 12.)
191 See Coca-Cola Bottling Co. Consol., 141 N.C. App. at 579 (“A defendant in a pending
lawsuit should not be permitted to bring a declaratory suit involving overlapping issues in a
different jurisdiction as a strategic means of obtaining a more preferable forum. Otherwise,
the natural plaintiff in the underlying controversy would be deprived of its right to choose
the forum and time of suit.”); see also Poole, 209 N.C. App. at 143; Harleysville Mut. Ins. Co.
v. Narron, 155 N.C. App. 362 (2002); Harris Teeter Supermarkets, Inc. v. Ace Am. Ins. Co.,

120. 	The ACC contends in opposition that the FSU Board started any “race to the
courthouse” and that its “grievance is . . . that it lost.”192 The ACC argues that “since
before August 2023 FSU intended to breach the Grant of Rights through litigation[ ]”
and that “when the [FSU] Board convened a meeting on the last business day before
the Christmas Holiday for an ‘emergency’ matter, it did so to try to be the first to file
a lawsuit, a lawsuit which it had already publicly released, and which its counsel was
poised to file immediately.”193 As such, the ACC argues that “once it became apparent
that FSU intended to breach its obligations by filing a lawsuit, the ACC had the right
to sue to settle the validity of the Grant of Rights, and to do so in the state whose law
applied and where the ACC is headquartered, North Carolina.”194
121. 	After careful review, the Court concludes on the allegations and facts of
record here that the ACC’s choice of forum is entitled to deference as the party first
to file. 	To begin, it is clear, as the FSU Board argues and the ACC acknowledges,
that the ACC filed its action on 21 December 2023 because it correctly anticipated
that the FSU Board intended to file the Florida Action the following day soon after
2023 NCBC LEXIS 125, at *52 (N.C. Super. Ct. Oct. 10, 2023); La Mack, 2015 NCBC LEXIS
24, at *18–20; Wachovia Bank, Nat’l Ass’n v. Harbinger Cap. Partners Master Fund I, Ltd.,
2008 NCBC LEXIS 6, at *20 (N.C. Super. Ct. Mar. 13, 2008), aff’d 201 N.C. 507 (2009); N.
Am. Roofing Servs., Inc. v. BPP Retail Props., LLC, No. 1:13-cv-000119-MR-DLH, 2014 U.S.
Dist. LEXIS 35193, at *9–10 (W.D.N.C. 2014); Klingspor Abrasives, Inc. v. Woolsey, No.
5:08CV-152, 2009 U.S. Dist. LEXIS 66747, at *11 (W.D.N.C. July 31, 2009); Nutrition &
Fitness, Inc. v. Blue Stuff, Inc., 264 F. Supp. 2d 357, 361 (W.D.N.C. 2003).
192 (Br. Opp’n Def.’s Mots. 21–22.)
193 (Br. Opp’n Def.’s Mots. 21–22.)
194 (Br. Opp’n Def.’s Mots. 24.)

the FSU Board was scheduled to vote to approve the filing of the Florida Action. The
FSU Board argues that the ACC’s litigation conduct is paradigmatic “procedural
fencing” that should cause the Court to reject any first-filer advantage for the ACC.195
See, e.g., Coca-Cola Bottling Co. Consol., 141 N.C. App. at 579 (finding “procedural
fencing” when a “potential defendant [which] anticipates litigation by the natural
plaintiff in a controversy” is the first to file); Poole, 209 N.C. App. at 141–42 (applying
Coca-Cola Bottling Co. Consol. to dismiss claim where “natural defendant” denied
“natural plaintiff” its forum of choice).
122. 	But the FSU Board’s argument hinges on its erroneous view that it is the
only “natural” plaintiff in this dispute. The “natural” or “real” plaintiff in a civil suit
is the party that has allegedly suffered damages at the hands of its opponent. Coca-
Cola Bottling Co. Consol., 141 N.C. App. at 579–80. 	Here, that is the ACC, which
alleges that the FSU Board intended to breach the covenants not to sue in the Grant
of Rights Agreements.196 The parties did not simply race to the courthouse to resolve
their dispute over the agreements’ terms; to the contrary, the ACC sued because the
FSU Board’s alleged breach of those agreements was a practical certainty that
threatened the ACC with imminent and unavoidable injury as a result. 	See, e.g.,
River Birch Assocs., 326 N.C. at 129 (finding standing where an association member
suffers “immediate or threatened injury”). In other words, it is the ACC, as the non-
breaching party, rather than the FSU Board, as the alleged breaching party, that is
195 (Br. Supp. Def.’s Mots. 24.)
196 (See FAC ¶¶ 134, 136, 142, 149, 181, 206, 209–11.)

the injured party in this dispute, see Coca-Cola Bottling Co. Consol., 141 N.C. App.
at 579, and “the one who wishes to present a grievance for resolution by a court,”
Cree, Inc. v. Watchfire Signs, LLC, No. 1:20CV198, 2020 U.S. Dist. LEXIS 223801, at
*15 (M.D.N.C. Dec. 1, 2020) (quoting Piedmont Hawthorne Aviation, Inc. v. TriTech
Env’t Health and Safety, Inc., 402 F. Supp. 2d 609, 616 (2005)).
123. 	As such, the Court concludes that the ACC is a “natural” plaintiff in its
dispute with the FSU Board. 	Thus, even assuming the FSU Board is a “natural”
plaintiff because it is the one challenging the enforceability of the Grant of Rights
Agreements as the FSU Board contends, the fact that the ACC is also a “natural”
plaintiff is sufficient for the ACC to maintain its first-filer advantage. 	See, e.g.,
Wachovia Bank, 2006 NCBC LEXIS 10, at *18 (recognizing the “heavy burden” a
defendant must satisfy “to alter [a plaintiff’s choice of forum] by . . . staying the
case”).
124. 	The Court’s rejection of the FSU Board’s attack on the ACC’s choice of forum
finds further support from numerous courts within and without North Carolina that
have refused to stay a first-filed declaratory judgment action where, as here, both the
first- and second-filed actions involve the same agreements and seek the same relief.
See, e.g., IQVIA, Inc. v. Cir. Clinical Sols., 2022 NCBC LEXIS 105, *4–5 (N.C. Super.
Ct. Sept. 14, 2022) (staying second-filed action where both the first- and second-filed
actions involved the same declaratory and injunctive relief); Baldelli v. Baldelli, 249
N.C. App. 603, 608 (2016) (remanding with instructions to hold second-filed action in
abeyance and noting that when there is a “clear interrelationship of the issues,”

allowing “both actions to proceed concurrently would be to invite conflict between the
resolution of interrelated issues in the two actions[ ]”); see also, e.g., Sorena v. Gerald
J. Tobin, P.A., 47 So. 3d 875, 878–89 (Fla. 3d Dist. Ct. App. 2010) (staying second-
filed action involving “substantially similar” parties and claims “stem[ming] from the
same set of facts”); Caspian Inv., Ltd. v. Vicom Holdings, Ltd., 770 F. Supp. 880, 884
(S.D.N.Y. 	1991) 	(staying 	second-filed 	action 	where 	“both 	actions 	involve[d]
interpretation of the same loan agreements” and “[sought] the same relief”); Fuller v.
Abercrombie & Fitch Stores, Inc., 370 F. Supp. 2d 686, 690 (E.D. Tenn. 2005) (staying
second-filed action, even though the second-filed case brought an additional claim,
because both actions contested the same issue).
125. 	Based on the above, the Court cannot conclude, as the FSU Board contends,
that the ACC’s filing was “nothing more than an attempt to deny the FSU Board (i.e.,
the true plaintiff) from prosecuting its claims in its chosen venue.”197 	Rather than
seek to avoid unfavorable law, see, e.g., Harris Teeter Supermarkets, Inc., 2023 NCBC
LEXIS 125, at *51 n.16, or deny a party who has suffered actual damages its choice
of 	forum, 	see, 	e.g., 	Coca-Cola 	Bottling 	Co. 	Consol., 	141 	N.C. 	App. 	at 	578—
circumstances typically found to constitute improper forum shopping—the ACC chose
to put its interpretation of its North Carolina contracts and their covenants not to sue
before a North Carolina court once the FSU Board’s breach of those contracts was
imminent. 	See, e.g., Pilot Title Ins. Co. v. Nw. Bank, 11 N.C. App. 444, 449 (1971)
(“[J]urisdiction lies where the court is convinced that litigation, sooner or later,
197 (Reply Supp. Def.’s Mots. 12.)

appears to be unavoidable[.]”). As such, the ACC did not engage in improper conduct
or 	“procedural 	fencing” 	in 	filing 	this 	action 	in 	North 	Carolina. 	Accordingly,
considering all of the facts and circumstances surrounding the filing of this action
and the Florida Action, the Court concludes, in the exercise of its discretion, that the
ACC’s choice of forum is entitled to deference on this record.
126. 	The Court further concludes that the nature of the case and the applicable
law strongly favor allowing this matter to proceed in North Carolina. 	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.”). 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, 2023 NCBC LEXIS 7, at *6 (N.C. Super. Ct. Jan. 19, 2023)
(“North Carolina courts apply the substantive law of the incorporating state when
deciding matters of internal governance.”). 	In addition, the FSU Board’s claims in
the Florida Action and its anticipated defenses and compulsory counterclaims in this
action are based on the ACC’s decisions and conduct in North Carolina. 	And while
the Court recognizes that certain of the FSU Board’s anticipated defenses and
anticipated counterclaims may be governed by Florida law, and that the ACC’s
damages claims challenge, at least in part, the FSU Board’s conduct in Florida, the

core issue presented in the two actions—i.e., the enforceability of the two Grant of
Rights Agreements—favors resolution before a North Carolina court.198
127. 	The Court also 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.199 	Four of its Member
Institutions are located in North Carolina—more Members than from any other
State—and only two Members of the ACC’s fifteen current Members are in Florida.200
FSU has attended numerous meetings, served in Conference leadership positions,
and participated in hundreds of athletic contests in North Carolina since it joined the
ACC in 1991,201 and, as noted, many of the decisions about which the FSU Board
198 While the FSU Board has raised certain defenses that likely implicate Florida law, the
FSU Board’s contention that “this case involves important jurisdictional issues of sovereign
immunity waiver under Fla. Stat. §§ 1001.72 and 768.28 that should be interpreted and
decided by a Florida court more familiar with the intent and application of these statutes[,]”
(Br. Supp. Def.’s Mots. 25), is without merit. The FSU Board initiated the Florida Action
and thereby consented to suit in Florida; thus, there are no issues of sovereignty immunity
waiver to be determined in Florida. 	Sovereign immunity waiver is only at issue in this
litigation and therefore is only before this Court for determination.
199 (See FAC ¶¶ 1, 11, 32.)
200 (See FAC ¶¶ 1, 16.)
201 (See FAC ¶¶ 8–10, 16, 94–97, 112.)

complains occurred at the ACC’s headquarters in North Carolina.202 The FSU Board
has also previously participated in litigation in North Carolina without complaint.203
128. 	Moreover, while FSU is the only ACC Member Institution involved in this
lawsuit, the determination of whether the ACC’s Grant of Rights Agreements are
legally enforceable 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 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 Florida 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).
129. 	The Court also concludes that the convenience of witnesses and the ease of
access to proof favor proceeding in North Carolina. 	While the FSU Board did not
specifically address these factors in its briefing or at the Hearing, the ACC has
identified by name several material witnesses who reside in North Carolina and other
202 (See FAC ¶¶ 11–15, 52–53, 69, 105.)
203 Indeed, the FSU Board voted to approve the ACC’s initiation of litigation in North Carolina
against the University of Maryland in 2012, (see Br. Supp. Def.’s Mots. Ex. 2 ¶ 39, ECF No.
19.2), and FSU’s General Counsel submitted an affidavit in that litigation seeking the
disqualification of the University of Maryland’s counsel for a conflict of interest, (see Br.
Opp’n Def.’s Mots. Ex. 5, ECF No. 31.5.)

material witnesses who do not reside in Florida.204 	The ACC has also represented
that its servers, records, Board minutes, and agreements with ESPN are located in
North Carolina.205 Without opposing argument or evidence from the FSU Board, the
Court concludes these factors weigh against the FSU Board’s requested stay.
130. 	In addition to its arguments on the ACC’s choice of forum, the FSU Board
argues that this Court should defer to the Florida Action because it is broader in scope
than this action. 	See, e.g., Coca-Cola Bottling Co. Consol., 141 N.C. App. at 578
(recognizing that “the interests of judicial economy and efficiency weigh in favor of
suits that will settle all of the issues in the underlying controversy”). 	While the
Florida Action may be broader in scope at this pre-answer stage of the litigation, the
FSU Board ignores that its defenses and compulsory counterclaims will likely
broaden the scope of this action to the same extent as the Florida Action once they
are asserted. As a result, the Court does not give substantial weight to this factor in
its analysis.
131. 	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
the FSU Board requests is not warranted under Lawyers Mutual and that proceeding
with this action in North Carolina would not work a “substantial injustice” on the
FSU Board. The Court concludes, as discussed above, that (1) the nature of the case,
204 (See Br. Opp’n Def.’s Mots. 26 n.16, 17.)
205 (See Br. Opp’n Def.’s Mots. 27.)

(2) the convenience of the 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 matters of local concern in local courts, and (9) the ACC’s
choice of the North Carolina forum, when considered in combination, decisively
outweigh the FSU Board’s choice of the Florida forum for the determination of the
enforceability of the Grant of Rights Agreements and the resolution of the ACC’s
damages claims against the FSU Board for breach of those agreements. Accordingly,
the Court, in the exercise of its discretion, will deny the FSU Board’s alternative
Motion to Stay under section 1-75.12(a).
VI.
CONCLUSION
132. 	WHEREFORE, the Court GRANTS in part and DENIES in part the
Motions and hereby ORDERS as follows:
a. 	The Court GRANTS the FSU Board’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;
b. 	The Court otherwise DENIES the FSU Board’s Motion to Dismiss; and
c. 	The Court, in the exercise of its discretion, DENIES the FSU Board’s
alternative Motion to Stay.
SO ORDERED, this the 4th day of April, 2024.
/s/ Louis A. Bledsoe
Louis A. Bledsoe, III
Chief Business Court Judge