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Roger I. Abrams

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In Search of Gold

Posted: 09/21/11 02:10 PM ET

Although the college football season is in full swing, most of the attention of the media and the public has been on the frenetic pace of schools moving from one conference to another in search of gold. Like those who rushed to the west to pan for nuggets, the universities that house these semi-professional football teams have deserted their conference families in pursuit of a piece of the enormous mother lode enjoyed by the more favored conferences. Don't wait too long or you may miss the next wagon train to the gold fields.

The prospect of four major conferences, each with sixteen teams and two divisions, sounds like a fine entertainment product. Unless the networks decide that we all would like to watch the "left-overs," the future of televised sports lies with the SEC, ACC, Big Ten (16) and PAC-16. It would be just a short jump from there to a two-weekend playoff system pitting the winners of the four conferences in the semi-finals followed by a gala final the week before the Super Bowl. There are, of course, significant antitrust issues that will have to be addressed, but for now it's more exciting to watch where Oklahoma will end up then to watch them pulverize Florida State.

There is something unseemly, of course, about these moves. Suddenly, Pitt and Syracuse depart from the Big East for the ACC and Texas A&M announces its intention to leave the Big 12 for the SEC. What will the Big East do now that it is no longer "Big?" The Big 12 is destined for dismemberment when Texas, Oklahoma and Oklahoma State announce their intentions. The frenzy has even awoken NCAA President Mark Emmert from his slumber. He has urged college presidents to "consider key factors" before booking passage. He has no power. Money conquers all.

For those schools fortunate enough to be invited to one of the new super-conferences, the moves offer the opportunity to balance the books. Many of the migrants are state schools, and public funding has dried up across the nation. The business of televised college sports, however, is booming. ESPN will become a major, albeit indirect, supplier of scholarship funds.

Are the schools left behind without any means to stop the departures? Baylor University has threatened to sue A&M and the SEC for tortious interference with contractual relations. It is not simply a coincidence that Baylor's new president is Ken Starr, the famous (or infamous) prosecutor of President Bill Clinton. He is one persistent lawyer who knows his law. His cause of action is based on age-old legal principles. You cannot intentionally seek to encourage a party to a contract to break its promises under that contract. While few have given Baylor's threat much credence, it is a solid legal argument.

There certainly is a contract among the member schools of the Big 12 (and, as far as that goes, members of every athletic conference). The SEC knew that A&M was signatory to the Big 12 contract. While the initiative might have come originally from College Station, there can be little doubt that the SEC has sought to consummate the move. Baylor can prove that it would suffer damages as a result.

The legal strategy does not require A&M, Pitt or Syracuse to stay in their conferences forever. Each conference has rules that specify how member schools can depart, and what it will cost them to leave. Nothing, in fact, will stop the ultimate realignment, except perhaps an antitrust action under the Sherman Act. The mega-conferences could be seen as "combinations in restraint of trade" if, as a result, they exercise undue market power over television contracts. Any injured school -- there are many -- can bring suit.

It would be ironic if the major football-playing schools become the object of antitrust litigation. When the NCAA regulated member school appearances on television, the Universities of Oklahoma and Georgia sued under the antitrust laws and ultimately prevailed in the Supreme Court. The NCAA television plan was dismantled, and the colleges and conferences negotiated on their own with the various networks. That is why each Saturday we have a cascade of football games that start at noon (9 am on the west coast) and last until after midnight. The free market determines the price paid to colleges and conferences for these games. If there are only four major conferences, there certainly is the possibility of something less than a free market.

Meanwhile, it will be interesting to watch how the colleges realign, decisions made based on business considerations which have nothing in particular to do with academics. Maybe this might mean that the Big Ten, now with twelve schools, might have to be renamed that Big Sixteen. It doesn't quite have the same cache.