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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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