Adverse Counsel

When expiration and termination mean different things

2026-04-25T00:00:00Z

A federal court in the Middle District of Florida ruled this week that Dean Guitars can keep producing Dimebag Darrell signature guitars even though the licensing agreement that governed them is over.[^1]

The ruling is trending as a story about one missing word in a contract: that the drafters wrote "termination" when they should have written "termination or expiration," and that the omission cost the Trust its core breach theory. That reading is wrong on the contract's own terms.

Dean Guitars is not about forgetting a word.

The ruling has nothing to do with AI drafting contracts.

The clause everyone is reading is paragraph 17 of the 2014 re-stated agreement:

The Company shall acquire no rights in the tradenames or designs "Stealth Guitar" or "Razorback Guitar" by virtue of this Agreement, and upon termination of this Agreement shall cease the production of Stealth and Razorback style Guitars.

The conventional read concludes "upon termination" must be a drafting slip. The contract reached the end of its stated term in June 2017 and expired. Expiration, the argument goes, should have been treated identically to termination, and the fact that it wasn't is a costly error.

The clause nobody seems to have read is paragraph 25 of the same agreement:

The provisions of this paragraph . . . shall survive the termination or expiration of this Agreement.

The drafters used both words in the same contract. When they wanted to capture both events, they did. When they used "termination" alone in paragraph 17, that was a deliberate choice, not an oversight. Several lawyers reviewed and signed this agreement (or advised their client to). The asymmetric treatment was intentional drafting, and the rest of the document proves it.

Paragraphs 22 and 23 of the agreement set out each party's "Special Right of Termination," requiring affirmative invocation by written notice upon a triggering event (insolvency, nonpayment, material default, or uncured breach). Termination under the contract is not what happens when time runs out. It is what happens when one party invokes a remedy. Neither party ever invoked. The Company never declared insolvency, the Trust never sent a default notice, and the contract simply reached the end of its stated term in June 2017 and expired through performance.

The court's policy explanation is worth quoting directly because it captures the drafting logic precisely:

By conditioning the Company's right to produce Stealth and Razorback style guitars on neither party's terminating the agreement, the parties reasonably distinguish between (1) the parties' respective positions after complete, compliant and satisfactory performance of the agreement followed by expiration at the end of the term of the contract and (2) the parties' respective positions after incomplete, non-compliant and unsatisfactory performance followed by termination during the term of the contract. A post-contractual right conditioned on neither party's terminating the agreement motivates and rewards full and faithful performance under the agreement and deters a non-compliance breach of contract.

The asymmetry was the deal. The Company kept the right to manufacture Stealth and Razorback style guitars after the agreement ran out, conditional on not getting kicked out for cause during the term. Expire cleanly through full performance, keep the manufacturing rights. Get terminated for non-performance, lose them. That allocates risk between cooperating and non-cooperating parties in a way that incentivizes both sides to perform. It is the kind of provision that gets drafted on purpose, by lawyers who understand what each word does.

As always, the facts matter. From June 2017 through at least April 2020, the Trust acquiesced in the Company's continued production of guitars bearing Darrell's name and continued payment of royalties at the rate established under the expired agreement. The Trust did not send a demand letter until June 2021, four years after the stated end of the contract period. When that letter arrived, it described the agreement as having "naturally terminated" in October 2020. The Trust's own counsel confirmed at oral argument that "naturally terminated" meant "expired."

The court was not persuaded. As the order observed, expiration and termination "are legally and factually distinct, particularly if the contract provides expressly for, and uses, the word 'termination' and if termination governs contractual rights, obligations, or remedies."

This matters for transactional practice. Termination-versus-expiration asymmetries appear regularly in licensing agreements, distribution agreements, employment contracts, and joint ventures. They work by rewarding clean exits, punishing breaches, and allocating post-contractual rights between parties depending on how the relationship ended. Those who treat every occurrence as a drafting error will redline actual value out of agreements and may misadvise clients on the consequences of letting a contract run out versus terminating it for cause. Which happens to be an incredibly common question.

The right move, in every case, is to ask whether the asymmetric treatment is doing intentional work, and to make the asymmetry explicit if so.

This opinion is currently being circulated in some quarters as a cautionary tale about AI-assisted drafting. "What if a model leaves out a word a human lawyer would have caught?" That framing identifies the wrong risk. The actually difficult AI-and-contracts questions concern confidentiality processing, output ownership, training-pipeline disclosure, and how confidentiality and IP provisions drafted before 2023 apply to workflows that did not exist when they were signed. None of those questions are answered by reading paragraph 17 of the Dean Guitars agreement more carefully.

Why the NFL Draft survives antitrust scrutiny

2026-04-24T00:00:00Z

The short answer is the non-statutory labor exemption. The longer answer runs through Smith, Mackey, Brown, and Clarett.

The monopsony problem. The NFL draft is a structural restraint on the labor market. 32 entities coordinate to divide rights to negotiate with incoming players according to a predetermined order, and no player may negotiate with any team other than the one to which he is assigned. The D.C. Circuit addressed this directly in Smith v. Pro Football, 593 F.2d 1173, 1185 (D.C. Cir. 1978), holding that the draft "inescapably forces each seller of football services to deal with one, and only one buyer, robbing the seller, as in any monopsonistic market, of any real bargaining power."

This is the casebook definition of a monopsony. It arises here because each team has agreed not to bid against the others for a player once the draft order assigns him, even though, absent the agreement, they would be economically incentivized to outbid each other for a naturally scarce supply of elite talent.

Under a standard Section 1 analysis, a horizontal agreement among competitors to suppress input prices is classic anticompetitive conduct. If 32 regional hospital systems agreed to divide the market for nurses through an annual lottery, it would not survive rule of reason (let alone per se analysis).

The non-statutory labor exemption. The draft is essentially enabled through an accommodation of two federal statutes. On the one hand, federal labor law affirmatively protects collective bargaining between employers and a certified union over mandatory subjects. On the other hand, subjecting the products of that bargaining to Sherman Act scrutiny would undermine the labor-law regime Congress constructed in the NLRA.

The governing framework comes from Mackey v. NFL, 543 F.2d 606 (8th Cir. 1976). Under Mackey, a restraint qualifies for the exemption where (1) the restraint primarily affects only the parties to the collective bargaining relationship, (2) the agreement concerns a mandatory subject of collective bargaining, and (3) the agreement is the product of bona fide arm's-length negotiation. The Supreme Court extended this in Brown v. Pro Football, 518 U.S. 231 (1996), holding that the exemption shields employer conduct even after a bargaining impasse, so long as the conduct grows out of and is directly related to the lawful operation of the bargaining process.

The practical consequence of this is that leagues enjoy considerable latitude to impose one-sided labor terms without triggering antitrust liability, provided the subject matter is one over which they have bargained.

Applied to the NFL draft. The draft is bargained into the CBA every cycle. The relevant CBA provisions govern the number of rounds, the order of selection, and the exclusive negotiating rights that flow from selection. Because those terms emerge from good-faith negotiation between the NFL and the NFLPA over a mandatory subject, they fit Mackey cleanly.

The Second Circuit confirmed this in Clarett v. NFL, 369 F.3d 124 (2d Cir. 2004), rejecting Maurice Clarett's antitrust challenge to the NFL's 3-years-post-HS eligibility rule. The court held that because the rule was a product of the collective bargaining relationship, it fell within the non-statutory exemption regardless of whether the individual challenger was ever themselves a union member.

Every rookie contract signed this weekend is structured the way it is (slotted compensation, 4-year term plus club option, restricted negotiation) because the CBA says it can be. Absent the CBA, each of those features would likely be unlawful horizontal restraints on the market for player services. Because of the CBA, antitrust law does not reach them.

The NCAA contrast. This framework is worth applying to the current wave of NCAA eligibility litigation. Since 2024, more than 70 antitrust lawsuits have been filed by athletes against the NCAA over eligibility rules contending it wields monopsony power over the labor market for college athletic services.

Those cases have materially greater traction than their NFL counterparts for one reason: college athletes are not organized into a certified bargaining unit, and there is no CBA to bring the challenged rules within the Mackey framework. The same conduct, structurally identical to what the NFL does, is doctrinally exposed when done without a certified bargaining partner across the table.

The labor exemption is doing enormous work across American professional sports. It is what lets 32 of the country's highest-revenue enterprises coordinate their hiring practices in public view every April without answering to the antitrust laws.

Welcome to Adverse Counsel

2026-04-22T00:00:00Z

Most legal commentary comes in two flavors.

There's the populist version: loud takes, fast framings, attention-optimized. And there's the institutional version: careful, credentialed, and almost entirely behind paywalls at legal websites sold to other lawyers. There isn't much in between.

There should be.

Adverse Counsel is my attempt to close that gap. I'm a practicing corporate litigator — antitrust, trademark, and increasingly, AI law. I spend my days reading opinions, arguing motions, and watching the legal system adapt in real time to markets and technologies that didn't exist when most of the doctrine was written. What I write here is what I would tell a founder over coffee, a GC in a hallway, or a sharp non-lawyer who wants to actually understand what just happened in a case that affects their industry.

Three things you'll see here:

Case analysis, under the banner of "In the Matter of…" — breakdowns of specific cases, what the headlines missed, and what the doctrine actually says. The first full episode drops Monday: In the Matter of Ticketmaster: The Verdict the Headlines Missed.

Doctrinal explainers — the kind of "wait, is that actually legal?" questions that come up constantly in business but rarely get answered without a retainer. Trademark, antitrust, AI compliance.

Practitioner notes — shorter takes on developments that matter, delivered with the delay of me having actually read the thing first.

What you won't see: hot takes before I've read the documents, predictions stated more confidently than the evidence warrants, or commentary dressed up as legal advice.

One framing I keep coming back to, from Vonnegut: we are what we pretend to be, so we must be careful about what we pretend to be. That's not a bad description of trademark law, or antitrust, or most of what gets litigated in a federal courthouse.

It's also, I think, the right posture for a writer: be careful about what you claim to be, because sooner or later, your readers will hold you to it.

— G