Head coach David Cutcliffe said staying on the field with No. 7 Louisville Friday will be a monumental challenge for the Blue Devils, but almost a decade ago, Duke went to great lengths just to avoid taking the field with the Cardinals.
After Louisville knocked off the Blue Devils 40-3 in 2002, Duke tried to pull out of the final three games of the teams’ nonconference series in 2007. The Cardinals filed a lawsuit against Duke asking for $450,000 since the original agreement was that if no contest against “a team of similar stature” could be rescheduled, the team that pulled out would pay the other team $150,000 per game.
Luckily for Duke, it had gone 6-45 in the five years leading up to the lawsuit, allowing its lawyers to argue that any other Division I team would be a suitable replacement. Judge Phillip Shepard of the Franklin County (Ky.) Circuit Court agreed, dismissing Louisville’s claim and ruling in favor of Duke.
"The term ‘similar stature’ simply means any team that competes at the same level of athletic performance as the Duke football team,” Shepherd wrote in a summary judgement in June 2008. “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.”
The case is a reminder of how far the Blue Devils have come since head coach David Cutcliffe arrived in December 2007. Duke won 10 games from 2000-2007 but won 48 in Cutcliffe’s first eight seasons.
Professor of Law Paul Haagen noted in an email that similar long-term arrangements like the one Duke attempted to void with Louisville are a recent phenomenon, so “talking about precedents and lack thereof is probably misleading.”
“The argument by Duke's attorneys did make Duke's football team the butt of sports reporting jokes. It also effectively called into question Louisville's argument that it could not find a substitute team to play. Obviously Duke is an attractive opponent, because, without regard to the success of its football team, it is high profile and attracts attention,” Haagen wrote. “By focusing on the purely football success/ranking element, the argument focused attention on the weakest part of Louisville's claim.”
Barbara Edelman, one of the attorneys who represented Duke, declined to comment. Holland McTyeire, one of the attorneys who represented Louisville, could not be reached for comment.
Duke Athletics spokesperson Art Chase referred The Chronicle to the office of public affairs and government relations. Michael Schoenfeld, vice president for public affairs and government relations, wrote in an email that the decisions made regarding the lawsuit were made by people who are no longer at the University.
“Duke football today is a world away from what it was in 2007,” Schoenfeld wrote. “The program that has four straight bowl appearances, a national coach of the year, a Coastal Division championship, 10 All-Americans, a first-round draft pick, a newly-renovated stadium and some of the biggest wins in Duke history is looking forward to a great contest against an ACC rival.”
With Louisville now in the ACC, the Blue Devils will see the Cardinals on the gridiron for years to come. Although Duke is 3-3 and a 35-point underdog this week, with its progress so far with Cutcliffe at the helm, a similar legal argument in the future seems highly unlikely.
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