When Louisville takes on Duke Thursday night in Durham, it will be just the third all-time meeting between the two programs. This was not supposed to be the case.
At the beginning of this century, the Cardinals and Blue Devils signed a contract to play four games — two in Louisville and two in Durham — between 2002 and 2009. The first game took place without issue on Sept. 7, 2002, as U of L went on the road and destroyed Duke 40-3 inside Wallace Wade Stadium.
Although David Cutcliffe has turned the program into a perennial bowl team (or at least contender), the 2002 game took place in the middle of the lowest of the low years for Duke football. The Blue Devils didn’t play in a bowl game from 1995 to 2012, and went a combined 13-90 between 1999 and 2008.
With that being the state of Duke football, and with Louisville destroying opponents in the middle of the decade under Bobby Petrino, the Blue Devils chose to bail on their scheduled games with the Cardinals in 2007, 2008 and 2009.
Duke asked Louisville to make a good faith effort to find a replacement opponent, promising to pay U of L the cost of the contract’s cancellation clause — $150,000 per game — only if the Cardinals couldn’t successfully find another team to play. Louisville claimed it couldn’t, and subsequently sought $450,000 in damages from Duke.
So why are we not sitting here talking about U of L being half a million dollars richer because of this breach? Because Duke’s attorneys took advantage of the language in the contract which stated that in the event of a cancelation, the other side must make a good faith effort to replace the reneging team with another team “of a similar stature.” The school’s lawyers argued that because the Blue Devils were the worst college football team in the country, it was impossible for Louisville not to be able to find a team of similar stature to play against, even if that team came from a lower level.
The only exception the attorneys were willing to concede was that junior varsity teams were not similar in stature to Duke. Everything else was fair game.
The court sided with Duke, saying that the football program was in such poor shape that Louisville could have scheduled legitimately any college team in the country and they would have been at the very least similar in stature to the Blue Devils.
Here’s a portion of the opinion from Judge Phillip J. Shepherd:
“To say that one thing is “of a similar stature” to another is to say that the two are on the same level. Nothing in the language of the agreement suggests that it is necessary or appropriate to conduct an in-depth analysis of the relative strengths and weaknesses of the breaching team and its potential replacements. Nor does the agreement specify that replacement teams must be from a particular major athletic conference or even a particular division of the National Collegiate Athletic Association (NCAA).
The term “team of similar stature” simply means any team that competes at the same level of athletic performance as the Duke football team. At oral argument, Duke (with a candor perhaps more attributable to good legal strategy than to institutional modesty) persuasively asserted that this is a threshold that could not be any lower. Duke’s argument on this point cannot be reasonably disputed by Louisville.”
The court granted summary judgment for Duke for the 2007 and 2008 breaches, but did not consider the 2009 season since it was too far in the future to reasonably determine the stature of the program.
There have been some dark times for Louisville football, but at least we’ve never had to get out of paying $450,000 by successfully arguing that there is no program in the country on any level that is obviously inferior to us.