The university’s lawyers seem to think so, and have said so in court! For background, go to the comprehensive post on the N.C. Business Litigation Blog, and the follow-up post here, but I’ll summarize.
The University of Louisville filed suit against Duke University in Kentucky state court because Duke backed out of a contract to play a four game series against Louisville (read the complaint). Duke defended based on a provision in the contract which stated that it had to pay a fee of $150,000 per game only if Louisville was unable to find a replacement opponent of "similar stature" to Duke. In discovery, Louisville asked Duke what the term meant and Duke responded that every other team in Division 1 was of "similar stature" (or better) than Duke, except junior varsity teams:
Duke states that any and all college varsity teams in the Football Bowl Subdivision (formerly Division I-A) are teams of a ‘similar stature’ to Duke. . . . Additionally, Duke states that any and all college varsity football teams in the Football Championship Subdivision (formerly Division I-AA) that would be considered as good or better than Duke in football. . . are teams of a ‘similar stature’ to Duke. . . . [J]unior varsity programs of any of the aforementioned teams would not be teams of a ‘similar stature’ to Duke’s varsity college football team.
The evidence was good for the Judge, as Duke won in summary judgment (see order here).
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 . . . 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. Duke won only one football game, and lost eleven, during the 2007 football season.
In its latest post, the N.C. Business Litigation Blog includes a link to the video and transcript of the oral arguments. It includes these gems from Duke’s counsel:
Duke’s Lawyer: "I think the Court can absolutely positively take judicial notice that Duke is probably the worst football team in Division I football. Everybody knows that. That’s no secret. The longest losing streak, the inability to ever win games. Everybody knows about it. That’s well documented. We certainly don’t have to go out and take six months of discovery to establish that for you."
Duke’s Lawyer: "So the bottom line is how much discovery, if any, should anyone have to take, want to take or need to take to make the simple analysis of whether or not that was a team of similar stature? It’s judicial notice that they got beat by Utah. Maybe that’s part of the dispute – that they wish they’d played somebody weaker, like Duke which would have been an automatic W."
Duke’s Lawyer: "I think again you can take judicial notice of the fact that the Louisville-Utah game ended up on TV. I don’t know, I don’t have the discovery on it, but I’ll guarantee they made more money playing a team that there was some interest in in Utah than they ever would of in playing Duke who no one would televise in their right mind." (As pointed out later in the hearing by Louisville’s lawyer, that’s not exactly right. Duke was on national television last year playing Notre Dame, and is frequently televised in ACC games).