The saga of shifting NCAA conferences has written a new chapter.  Last Tuesday, Sept. 6th, the Southeastern Conference (SEC) voted to accept Texas A&M as their 13th member, provided that the members of A&M’s old conference, the Big 12, waive their right to sue. The Big 12 commissioner sent a letter on Sept. 2nd to the SEC commissioner stating that the Big 12’s board of directors would not sue, but that letter is apparently not binding on the constituent members of the Big 12.   So now Baylor is becoming the Mouse that Roared, perhaps galvanized by their dramatic win over TCU two weeks ago, and a lawsuit from Baylor alone could destroy this entire deal.  Why is Baylor fighting so hard to keep Texas A&M in the Big 12?  Well, there’s a 13 year, $1.3 billion television deal with Fox that’s in serious jeopardy if Texas A&M jumps ship.  Also, as Baylor knows quite well, when one team leaves a conference, others quickly follow.  Oklahoma, currently ranked 1st in the AP poll, is considering a move to the Pac-12, which would be another heavy blow to the Big 12.  At this point, it is too early to write the eulogy for the Big 12, but the loss of Texas A&M and Oklahoma will leave a gaping hole with no obvious replacement schools.  So, for Baylor and the other smaller Big 12 schools, like Iowa State and Kansas (neither of whom have waived their right to sue, either), the fight over Texas A&M is a fight for the survival of their conference.

This raises the question: what claim could Baylor possibly have over the SEC?  Some commentators seem to think that it is all smoke and mirrors, but the SEC seems to take the threat very seriously.  There’s the potential breach of contract involving the TV deal with Fox for Texas A&M and tortious interference with business relations for the SEC.  Also, it seems that the other Big 12 schools have committed to spending millions in anticipation of the television deal- all potentially recoverable as reliance damages.  Any lawsuit filed against Texas A&M and/or the SEC will have that Fox deal at its center.

The Big 12 as a conference has decided not to pursue legal action against the SEC, but for the individual schools who are risking millions on the promise of future cooperation from their peers, suit or the threat of suit is the best and possibly only means of protecting their rights and revenues.  The Big 12 shake-up reveals a deeper collective action problem in the conference system.  Like Nash’s prisoners, it might be better for the conference if each member stuck it out, but now that the writing is on the wall, each school would be best served if they ran to the nearest conference that will take them.  Unfortunately for Baylor and other small schools in big conferences, the SEC, Pac-12 and other large conferences are not likely to greet them with open arms.

Perhaps the solution for all conferences in the event of one school’s exit would be a contractual device called liquidated damages, which would determine how much any exiting school would pay long before any school actually did leave.  Baylor and the rest of the Big 12 cannot force Texas A&M to stay, but liquidated damages would ensure that the remaining schools would get compensation and that the transition to a new league would be litigation-free.

I would be remiss if I didn’t speculate, at least a bit, on the future of the BCS (Bowl Championship Series) in light of these shifting conferences.  For years, people have argued in favor of a true play-off system.  Bigger conferences, like the SEC and the Pac-12, dominate the national championship conversation, and schools like Boise State or TCU in small conferences scream for attention (and the television revenue that comes from being a national title contender).  The recent shift toward conference consolidation might achieve the results of a play-off system without the BCS lifting a finger.  If every powerhouse school is aligned in one of only two or three conferences, clear winners will emerge from each conference’s title game, and any school not in one of those conferences would be more or less irrelevant. Boise State should start sending flowers to the Pac-12 chairman right now.

If Baylor does sue or if they successfully dissuade the SEC from accepting Texas A&M, expect to see the shake-up in conference alliances and governance continue.

— Caitlin Angelette

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4 Responses to Baylor to Texas A&M: “You can’t do this to us!”

  1. rflorance says:

    I think this lawsuit shines a poor light on Baylor. First, Texas A&M followed all of the procedures laid out by the Big 12 to exit. The Big 12 – as a conference – established a procedure to exit the league and now Baylor is threatening to sue for following that procedure. That just doesn’t look good. Second, Dan Beebe sent a signed confidential letter to Mike Slive that the Big 12 AND its member institutions will not take any legal action. There are also numerous reports that Baylor also individually pledged not to sue. This just makes a legal cause of action hard to contemplate and makes Baylor look petty.

    However, I understand why Baylor is doing this, but whether the lawsuit stops A&M from going to the SEC or not, the Big 12 is done. OU and OSU are already looking at the Pac-12 and will likely be announcing their departure soon. The league is just too unstable to survive. If I were Baylor, I would put my efforts into trying to squeeze into another conference. Contrary to public perception, Baylor’s athletic program is not too shabby. They are the only school in the Big 12 other than A&M to have their Big 3 sports teams (football and mens and womens basketball) all in the top 25 in the past year. They are a program on the rise, and I wouldn’t quickly assume that a conference such as the Big East, who has already taken TCU, would not also jump at the opportunity to add Baylor.

  2. Caitlin Angelette says:

    Oh, I tend to agree, Kevin. This is the circumstance lawsuits are made for. Diplomacy by other means. However, there is a Rubicon here- once Baylor says “We’re suing to keep Texas A&M here,” have they not put the nail in the coffin of the conference if they are successful? I think the more interesting question is what conferences with small members do going forward? Could Vandy torpedo the SEC in a similar manner?

  3. Kevin Lumpkin says:

    Baylor is right to get litigious about this – the conference is showing signs that it might fall apart all around them, and as a school with (let’s be honest) not that interesting of a team, the conference is a pretty big part of what they have going for them. Tortious interference sounds like a pretty decent cause of action to me.

    • Colton Cline says:

      Baylor Bear here. I have to admit that this whole shake-up will make the A&M game a whole lot more exiting. If I’m not mistaken, Baylor is the only team to currently have a top 25 football team and top 25 Men’s and Women’s basketball teams. As far as timing for a conference dissolution, this is just about as bad as it gets for a team.

      I’m sad to see the Big 12 go, and I’m even more disappointed to see effectively the end of these historic in-state rivalries.

      As far as having “not that interesting of a team,” I think that’s completely unfounded. All you need to do is watch/read ESPN and look in to RG3’s Heisman buzz. He’s got as many touchdowns as incompletions at this point in the season. Granted, we’re only two games in and one of the teams was Stephen F. Austin. But he’s completed 41 of 49 attempts of no interceptions and over 600 yards (even though the SFA game was called after 3 quarters due to weather).

      All of that said – A&M is looking out for their best interest by leaving, and Baylor is looking out for theirs by trying to keep the conference together.

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