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College Football and Competition

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If you were hoping to catch a college football game or two on television this week, you were in luck. In fact, if you wanted to watch 54 college football games this week, you were in luck. 47 games were shown on Saturday, and a smattering of games was shown on Tuesday, Thursday, Friday and even Sunday. Only 8 games were not televised. If you flashed back to this same week 30 years ago, your options were a bit more limited. In 1979, you could have watched 2 games on television this week, and only 23 for the entire season. Of course, instead of college football, you could have watched new episodes of Three's Company in 1979, so let's not shed too many tears.

How did we get from 23 games for an entire season to 54 games in one week? The obvious answer can be summed up in 1 word: Money. The networks are paying an obscene amount of money to broadcast college football games. The SEC just agreed to 15 year deals with ESPN and CBS that will pay over $3 billion combined. The less obvious answer takes 2 words: Antitrust Law. I know, not as sexy, but while money gets the headlines, antitrust law is often lurking in the background of the big sports stories. From free agency to salary caps to the location of teams to the number of teams in a league to the number of games on television, antitrust law has had a key role. Yet, nobody likes to talk about it. Why not? Well, I blame it on bad marketing. Antitrust law just doesn't sound fun. Or interesting. Or accessible. Or particularly useful to the things that most people care about, like sports. In fact, no words beginning with "anti" sound remotely appealing. Except maybe Antigua.

If we called it what many other countries call it -- competition law -- I think people might pay more attention to it. Global warming suffers from a similar problem (here I am, solving all of the world's problems in my first post!). If you really want us to pay attention to global warming, shouldn't you call it something more ominous? Like, "global burning." Or "global annihilation." Or, "your hairspray is killing my grandkids." So, from here on out, I'm sticking with competition law instead of antitrust.

And, what I hope to do in this space is discuss a variety of legal issues that arise in the sports stories we read about every day that tend to lurk in the background. Whether it is competition law, intellectual property, or basic contract law, the legal issues often get overlooked in the coverage of the story or mangled by those covering the story (I pass no judgment on the manglers. I'll be mangling plenty of things in this column, just hopefully not the legal issues. We spend most of our time mangling things, and when we find something we don't mangle, we get to make fun of those who do mangle it. That's just the way it works.). I'll try to tackle one or two stories per week and answer some of the basic legal questions that often get unanswered.

So, back to college football on television. The story starts back in 1939 with the first televised college football game: Fordham versus Waynesburg College. I know, it's hard to believe that rivalry has been so heated for so long. For many years after that glorious battle, the NCAA had a simple belief -- television was bad for college football. The fear was that fans would not buy a ticket to see the game live if they could sit at home and watch the game on the couch. The concept of blocking the broadcast of a game to encourage live attendance is not a completely foreign or anachronous concept, particularly to NFL fans in Jacksonville this year. But, for a time, the NCAA did not simply black out games when fans were not attending them, they blacked out all games. Yes, it was as if the entire nation was a Jacksonville Jaguars fan in 2009 -- the only way you could see a game is if you went to the stadium. The NCAA eventually lifted the blanket prohibition and entered into national network television deals that strictly limited the number of games that the networks could televise. So, in 1979, ABC could only televise 1 or 2 games per week and could only show a limited number of any particular school's games. The revenue from the television contract was then shared among all the schools.

Understandably, some of the big football schools, like Georgia and Oklahoma, were unhappy with the restrictions. They wanted more of their games televised and wanted more money from the television broadcasts. So, Georgia and Oklahoma brought a competition lawsuit against the NCAA claiming that the television restrictions were an unreasonable restraint of trade and thus illegal. The NCAA defended their television plan by claiming that they needed these restrictions not only to protect live attendance at games, but also to protect the game and the student-athletes. The NCAA was concerned that, without the restrictions, the sport would become more like professional football and the focus would shift from academics and amateurism to profits and television exposure. Teams would be chasing players because good players meant a good team, a good team meant more television exposure, and more television exposure meant more money. The NCAA was both worried about the tactics schools might use to chase the good players, and how the schools that were not willing to use those tactics or chase those players would be able to compete.

The case went all the way up to the Supreme Court and the Court held that the NCAA's television plan was illegal because it did the very thing that competition law is designed to prevent -- it limited competition and reduced output (the number of games on television). Without the restriction, teams would be able to compete with each other for television revenues and the number of televised games would increase. Well, the court clearly got that part right. The restriction was lifted, big time college football programs started competing for billions of dollars of television revenue, and virtually every game except for Fordham-Waynesburg is now televised. We all knew that money was a factor in the evolution of college football on television from 1979 to today (speaking of evolution, is it just me, or is Quagmire from Family Guy the modern, cartoon version of Larry from Three's Company?) , but competition law was the hidden force that allowed it all to happen.

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