They could do that, and that appears to be what they want to do, but I tend to agree with Apple that continuing a legal attempt to overturn the terms doesn't constitute "agreeing" to the terms. There's an old joke about diplomacy being "the art of saying 'nice doggie' until you can find a rock".

Apple is in my opinion correct that Epic is still looking for that rock, and is not bound to respect what Epic says while it does so.

>They don't have to break the ToS to get the ToS changed.

Might have been a good idea for Epic to consider that prior to doing so.