Question for Boneyard lawyers

[Dooley]

I think we all reason that a lawsuit is a nothing to lose scenario that would forever incur the enmity of the P5.

It has nothing to do with forcing the P5s hand.

It has to do with money.

The G5 have a lot to lose over the next decade.

Yup. A lawsuit all but guarantees UCONN will be forever bumped to the bottom of every P5 expansion list. It would and should only be used as a last ditch effort to secure millions and millions of dollars to keep our AD and university afloat for as long as possible. A lawsuit would only be about money, not about getting into a P5.

 

[itgoeslike]

Sure, but that doesn't matter if the rest of the NCAA membership passes P5 autonomy. The NCAA membership can't vote to allow the P5 to have autonomy on the one hand and then turn around and sue the P5 for exercising such autonomy on the other hand. There simply isn't any claim there assuming the NCAA passes those rules.

The P5 chose to segment the G5 to help ensure the passage of initiatives that won't impact non FBS schools (and perhaps reward them) but marginalize G5 schools to create separation. However the proposed supermajority requirement could be the fly in the ointment, which is why some of the P5 commissioners are irate about it (or perhaps it is just for show).

Edit: Apparently you can't type the word t-h-e a-t-e-r.

 

[upstater]

The P5 chose to segment the G5 to help ensure the passage of initiatives that won't impact non FBS schools (and perhaps reward them) but marginalize G5 schools to create separation. However the proposed supermajority requirement could be the fly in the ointment, which is why some of the P5 commissioners are irate about it (or perhaps it is just for show).

Edit: Apparently you can't type the word t-h-e a-t-e-r.

In any negotiation, you ask for more than you need.

Theater.

 

[UConnJim]

Here's the thing: even if you can actually prove that the P5 violated antitrust laws, can the G5 prove damages (or at least damages in excess of their share of CFP money)? Recall the USFL's antitrust case against the NFL. The USFL actually won that case on the legal merits in showing that the NFL violated the Sherman Act and engaged in anticompetitive practices. Yet, the court ended up awarding a grand total of $3 ($1 in actual damages times 3 since there are treble damages for antitrust violations) to the USFL. The upshot was that even though the NFL was violating antitrust laws all day, it had nothing to do with why the USFL couldn't sign up better TV deals, sell tickets or obtain sponsorships, which meant that the USFL couldn't show that their lack of financial resources was caused by the NFL's actions. In essence, the NFL anticompetitive behavior didn't take *away* any money that the USFL would have made in a true free market.

In the NFL vs USFL case, there was no direct relationship between the two leagues as they never played games against each other. That is different compared with the P5 and G5. Although I am not an anti-trust expert, it seems to me that having conferences openly state that they HAVE to treat G5 schools differently from P5 schools when scheduling football games creates financial damages. Basically, some conferences are openly saying that their schools need to schedule P5 schools out of conference. Since a home and home with a P5 school is a big moneymaker for G5 schools as are one and dones, there are financial damages that can easily be measured based on past financial performance. (I think the P5 decided to still play FCS schools because they can get home only games as well as to avoid political pressure from eliminating pay day games for local FCS schools as these games basically fund the football program.) In addition, declining to schedule bowl games against G5 schools creates another measurable financial loss.

Let's hope none of this ever goes to trial as it could help destroy college sports. Let's hope that everyone comes to their senses, allows the P5 to change some rules for athletes, and then remains committed to allowing schools to continue to compete and improve their situation over time.

 

[frankthetank]

In the NFL vs USFL case, there was no direct relationship between the two leagues as they never played games against each other. That is different compared with the P5 and G5. Although I am not an anti-trust expert, it seems to me that having conferences openly state that they HAVE to treat G5 schools differently from P5 schools when scheduling football games creates financial damages. Basically, some conferences are openly saying that their schools need to schedule P5 schools out of conference. Since a home and home with a P5 school is a big moneymaker for G5 schools as are one and dones, there are financial damages that can easily be measured based on past financial performance. (I think the P5 decided to still play FCS schools because they can get home only games as well as to avoid political pressure from eliminating pay day games for local FCS schools as these games basically fund the football program.) In addition, declining to schedule bowl games against G5 schools creates another measurable financial loss.

Let's hope none of this ever goes to trial as it could help destroy college sports. Let's hope that everyone comes to their senses, allows the P5 to change some rules for athletes, and then remains committed to allowing schools to continue to compete and improve their situation over time.

If it were that simple, then there would have been lawsuits against every exclusionary practice by the power conferences, ranging from the BCS system to bowl agreements, many years ago. People have been barking about the inequities in college sports for years and years and years... AND NOT A SINGLE LAWSUIT HAS EVER BEEN FILED. I understand that G5 fans are attempting to find a legal solution to a financial problem, but that in and of itself is why the attempted legal argument fails.

If the P5/G5 distinction were erased, would ESPN pay a single cent more for the AAC than they do today? Would the Rose Bowl, Orange Bowl and Sugar Bowl suddenly want to enter into agreements with the AAC or the rest of the G5? Would ticket sales increase for an Alabama vs. Tulane game? The point is that the G5 can't ever show that and, in fact, they're almost certainly making more under the new CFP system than they would on their own. Until the G5 can actually show that the P5 is *taking away* money from the G5, as opposed to the P5 simply being worth exponentially more compared to the G5 (and there's a major distinction between the two), then litigation would be a foolhardy exercise. Once again, the proof is in the pudding when we live in the most litigious society on Earth and the non-power conferences haven't ever dared actually following through on filing a lawsuit against the power conferences despite the use of politicians (i.e. Orrin Hatch and the Utah AG a few years ago back when the Utes were on the outside looking in) doing some sabre-rattling from time-to-time.

 

[upstater]

If it were that simple, then there would have been lawsuits against every exclusionary practice by the power conferences, ranging from the BCS system to bowl agreements, many years ago. People have been barking about the inequities in college sports for years and years and years... AND NOT A SINGLE LAWSUIT HAS EVER BEEN FILED. I understand that G5 fans are attempting to find a legal solution to a financial problem, but that in and of itself is why the attempted legal argument fails.

If the P5/G5 distinction were erased, would ESPN pay a single cent more for the AAC than they do today? Would the Rose Bowl, Orange Bowl and Sugar Bowl suddenly want to enter into agreements with the AAC or the rest of the G5? Would ticket sales increase for an Alabama vs. Tulane game? The point is that the G5 can't ever show that and, in fact, they're almost certainly making more under the new CFP system than they would on their own. Until the G5 can actually show that the P5 is *taking away* money from the G5, as opposed to the P5 simply being worth exponentially more compared to the G5 (and there's a major distinction between the two), then litigation would be a foolhardy exercise. Once again, the proof is in the pudding when we live in the most litigious society on Earth and the non-power conferences haven't ever dared actually following through on filing a lawsuit against the power conferences despite the use of politicians (i.e. Orrin Hatch and the Utah AG a few years ago back when the Utes were on the outside looking in) doing some sabre-rattling from time-to-time.

You could actually sue the NCAA and show damages.

UConn didn't go to NCAA tournament last year because of a NCAA ban. It was damaged because of that.

 

[itgoeslike]

If it were that simple, then there would have been lawsuits against every exclusionary practice by the power conferences, ranging from the BCS system to bowl agreements, many years ago. People have been barking about the inequities in college sports for years and years and years... AND NOT A SINGLE LAWSUIT HAS EVER BEEN FILED. I understand that G5 fans are attempting to find a legal solution to a financial problem, but that in and of itself is why the attempted legal argument fails.

If the P5/G5 distinction were erased, would ESPN pay a single cent more for the AAC than they do today? Would the Rose Bowl, Orange Bowl and Sugar Bowl suddenly want to enter into agreements with the AAC or the rest of the G5? Would ticket sales increase for an Alabama vs. Tulane game? The point is that the G5 can't ever show that and, in fact, they're almost certainly making more under the new CFP system than they would on their own. Until the G5 can actually show that the P5 is *taking away* money from the G5, as opposed to the P5 simply being worth exponentially more compared to the G5 (and there's a major distinction between the two), then litigation would be a foolhardy exercise. Once again, the proof is in the pudding when we live in the most litigious society on Earth and the non-power conferences haven't ever dared actually following through on filing a lawsuit against the power conferences despite the use of politicians (i.e. Orrin Hatch and the Utah AG a few years ago back when the Utes were on the outside looking in) doing some sabre-rattling from time-to-time.

The reason that there aren't more lawsuits has more to do with politics than the legality of it.

It's still to soon consider this, but depending upon how things unfold, G5 schools could argue that the P5 have created an unfair advantage resulting economic hardship for schools willing to play by the exact same rules. Perhaps they will demonstrate that by "blackballing" and isolating them the P5 has diminished the value of their schools and sports programs by damaging their reputation, visibility, enrollment, marketability, research, faculty, etc. It may take a while to demonstrate this but most people recognize that it's entirely plausible.

 

[CL82]

I am not all convinced the bottom of the P5 want to go all in this universe...

I hope that you are right. I think the lure of big time TV money will keep them interested.

 

[CL82]

If the P5/G5 distinction were erased ....

You do realize that this "distinction" is a very arbitrary device that isn't even a year old that is being used to exclude certain public institution from profiting from television revenue (an industry that is publicly regulated) while other private institutions with lesser resumes are reaping multi-million dollar rewards? You don't see a vulnerability there?

 

[itgoeslike]

The benefits of winning a high profile national championship in basketball or football have been widely documented. Arbitrarily excluding and disadvantaging peer institutions from this benefit could be problematic for the P5. As CL82 pointed out, what, aside from conference affiliation, is the distinction between Wake Forest, Mississippi State, or Colorado and the University of Connecticut when it comes to Division 1 athletics.

 

[FAIRTIDES]

Yes, especially Saban opining that P5 should only play other P5 in OOc games. Now you have a self-contained group within the NCAA that is preventing any open competition by other schools that wish to play at the same leve. The bowl system, with its mandated conference tie-ins, has helped make all of this possible.

Saban has a new crusade. He recently found out that he makes less than an Basketball Coach at an elite private school.

 

[businesslawyer]

I think you're severely underestimating both the revenue that the P5 can achieve on their own and how much they're giving up financially to the entire rest of the NCAA by participating in the NCAA Tournament. There are probably 15 to 20 auto-bid shares per year that are granted to conferences that are far beyond the market value of such conferences. Also, remember that the NCAA Tournament is subsidizing ALL levels of the NCAA - Division I through Division III. Those expenses for every single sport for every single NCAA school at every single level vastly outweigh any consternation that the P5 would have about running their own tournaments for non-revenue sports... which is what they want to do via conference realignment anyway!

Sure, there are excellent G5 basketball schools, but don't let that blind you to the fact that the P5's experience with basketball revenue sharing is EXACTLY why they want nothing to do with the same type of system in football. They'd be more than happy to marginalize any non-P5 school for basketball just as they've done in football and, in turn, increase the value of the P5 basketball regular season that they can keep 100% to themselves (which is what they've also done in football).

I'm not saying that the P5 is going to actively disband the NCAA Tournament. It's still a huge bridge to cross even for the biggest money-grubbers in the sport. However, if it comes down to a choice between protecting football autonomy or the NCAA Tournament, the P5 will choose football autonomy every single time without debate (and take basketball along with it in the process).

There is no question that the main reason that no one in realignment cares about our basketball value is that basketball value helps the entire NCAA and its bureacracy and football value is kept by the conference that the school is in. If the P-5 is ever going to walk away from the NCAA tourney, UConn becomes much more valuable.

 

[Carl Spackler]

There is no question that the main reason that no one in realignment cares about our basketball value is that basketball value helps the entire NCAA and its bureacracy and football value is kept by the conference that the school is in. If the P-5 is ever going to walk away from the NCAA tourney, UConn becomes much more valuable.

sucks, that it took getting kicked out of the club, for the vast majority of UCONN folks to grasp this.

 

[billybud]

A TALE OF TWO SPORTS


It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of light, it was the season of darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way-

 

[nelsonmuntz]

TOTAL money is irrelevant. The revenue SPLIT is what matters. If the P5 could run their own basketball tournament and their revenue share would be larger in that system than their current share in the NCAA Tournament, then they're leaving money on the table in the name of the NCAA. It wouldn't matter if the NCAA Tournament is worth $1 billion total per year while the P5-only tournament is worth only half as much as long as the P5 leagues themselves make more in the latter situation. The average fan might find that notion crazy, but I'm telling you straight up: the P5 HATE HATE HATE the NCAA Tournament revenue split. HATE IT. They legitimately believe that they ought to be making 90% of the basketball money in the same way that they're earning 90% of the football money. The fact that such 90/10 disparity exists in football but not basketball is why conference realignment has been almost entirely a football-driven affair (which is probably to the chagrin of most of the people on this board).

Ever since the University of Oklahoma Supreme Court case, there's been a tacit understanding between the power conferences and the NCAA: as long as the NCAA doesn't mess with the football postseason, then the power conferences won't mess with the NCAA Tournament. That's why every single call for more NCAA oversight of the football postseason is DOA - the P5 will walk in that situation (and that's not an empty threat) and take all of the basketball money with them in the process. Just read the University of Oklahoma case (which was written by the liberal Justice Stevens, by the way) - its slapdown of NCAA regulations is exactly why the NCAA doesn't ever challenge the power leagues today. Contrary to popular fan belief, it's the *NCAA* that's in constant risk of violating the Sherman Act with any move (NOT the individual power leagues).

Almost every word of your analysis of the P5's legal liability is wrong, and your interpretation of Stevens is also completely wrong. Stick to what you understand, whatever that is.

All that needs to happen is the P5 are working together and other competitors outside the P5 are harmed. That is pretty much the standard for anti-trust. We are seeing price fixing, bid rigging, and most importantly, group boycott. These practices are illegal all by themselves. This holds true for the P5 or airlines or chip manufacturers or handset makers or soda companies. The analysis of what the P5 want or how you think they are doing everyone a big favor by whatever could not be more irrelevant.

 

[HuskyHawk]

One of the Boneyard lawyers chiming in. I don't think the antitrust case the G5 could wage against the P5 is as weak as Frank suggests. The G5 is in much stronger shape than the USFL in that regard, as the distinctions have been more fluid. Rice was once in the same conference as UT. UConn was in a conference with several teams in the P5, even for football. The distinctions are not so clear, which makes them much more arbitrary. The fact that Northwestern and Vandy have historic P5 status that hasn't been lost confirms the arbitrary nature of which schools are in or out of the "club". Generally speaking, they could create criteria for membership, but would have difficulty keeping out schools in the current G5 that meet that criteria. Presence in this conference or that conference is entirely too arbitrary to hold up. Any special treatment for Notre Dame would certainly mandate the same for any other qualifying school. It can't be arbitrary.

That being said, I don't think it will happen. I think the political pressure is a more valuable weapon. In particular, I think it will be politically difficult for the P5 to break away and leave major public universities behind.

My prediction is that the P5 will indeed set specific criteria, perhaps based on AD spending, stadium size and number of scholarship sports etc. They won't be able to deny access to those in the G5 that qualify, which will drive either (i) expansion or (ii) inclusion of a 6th conference made up of those schools. Since UConn is much stronger in these metrics than several schools in the current P5, they will be in, via one of those two methods.

 

[IthacaMatt]

What you are implying is that if a school complies with all the listed student-centric initiatives they are automatically a P5 school on equal footing? I doubt it.

There will likely have to be some level of guidelines published in the coming months as the NCAA reorganizes, akin to D1-A and D1-AA, but I can't imagine they would publish/adopt anything formal in advance of that. Conference attorneys are trying to move slowly and deliberately to push the envelope. We'll see if they overextend themselves. I still think the challenge comes from an unlikely source.

No, that's not what I was implying. I was saying that in their efforts to fend off unionization, player image rights litigation, etc., the P5 are coming up with some new benefits that they will offer to scholarship players, and that schools not in the P5 likely will not have the revenue to match what is offered. In addition, there are already certain guidelines that these conferences have in evaluating new members like stadium size, ticket sales, academic standard and research (for some, anyway), etc.

I'm not saying anything about automatic admission into the club. I'm talking about what those in the club offer, or will be offering, and what kinds of programs they will be looking for to fill the last couple life rafts on the boat.

 

[IthacaMatt]

I think we all reason that a lawsuit is a nothing to lose scenario that would forever incur the enmity of the P5.

It has nothing to do with forcing the P5s hand.

It has to do with money.

The G5 have a lot to lose over the next decade.

What is the G5? I haven't heard that term before coming over here yesterday.

 

[IthacaMatt]

There is no question that the main reason that no one in realignment cares about our basketball value is that basketball value helps the entire NCAA and its bureacracy and football value is kept by the conference that the school is in. If the P-5 is ever going to walk away from the NCAA tourney, UConn becomes much more valuable.

This is a good insight. I've been following this stuff for a long time and that thought hadn't hit me as clearly as you state it.

 

[IthacaMatt]

Almost every word of your analysis of the P5's legal liability is wrong, and your interpretation of Stevens is also completely wrong. Stick to what you understand, whatever that is.

All that needs to happen is the P5 are working together and other competitors outside the P5 are harmed. That is pretty much the standard for anti-trust. We are seeing price fixing, bid rigging, and most importantly, group boycott. These practices are illegal all by themselves. This holds true for the P5 or airlines or chip manufacturers or handset makers or soda companies. The analysis of what the P5 want or how you think they are doing everyone a big favor by whatever could not be more irrelevant.

When was the last time the Justice Dept. brought a big antitrust case?

 

[upstater]

What is the G5? I haven't heard that term before coming over here yesterday.

G5 is an official term used to distinguish the P5 from the AAC, MWC, MAC, CUSA and some other conference. WAC? Sun Belt? Don't know.

 

[Nostical]

Interesting discussion but let's be real here. I guarantee all those espousing the viability of an antitrust case by the G-5 will intellectually reverse that opinion should we receive a P-5 invite. It's funny how once you're in the club all the exclusionary rules you once railed about become suddenly tolerable.

 

[nelsonmuntz]

When was the last time the Justice Dept. brought a big antitrust case?

There are probably hundreds of these going on right now. The ones that jump to the top of mind are several bid rigging cases by energy companies in North Dakota and Michigan, the Silicon Valley tech talent collusion, which could turn into a huge case, and the investigation into the handset makers.

 

[Carl Spackler]

Interesting discussion but let's be real here. I guarantee all those espousing the viability of an antitrust case by the G-5 will intellectually reverse that opinion should we receive a P-5 invite. It's funny how once you're in the club all the exclusionary rules you once railed about become suddenly tolerable.

The common denominator to every intercollegiate conference affiliation move, independence or not, all of it - is broadcasting transmission revenue contracts around football. Can't lose sight of that in any of this. It's all about the television revenue contracts.

With regards to UCONN, I'm hopeful that BL will chime back in, especially with the letters from congress to Mark Emmert that I posted today. BL's statement above is incredibly accurate and insightful.

With regards to our own interests at UCONN, and with regards to the precedence that is out there, (and I'm no lawyer) but my understanding would be that the precedence set by the supreme court back in the 1980s would dictate that the proper step forward, would be the deregulation of revenue sharing around basketball by the NCAA - just as it was deregulated around college football.

That would mean that the NCAA would no longer be in charge of revenue distribution with regards to the NCAA men's b-ball tournament, and the existing contract would be scrapped.

My guess, would be that if that happened, the NCAA would essentially cease to exist as it does, and there would be all kinds of fracturing of intercollegiate athletics associations/conferences , etc.

the basketball tournament generates a HUGE amount of money though, and that money would be up for grabs - and UCONN - would have a huge say in where that money goes and to whom and why.

A deregulation of revenue sharing control by the NCAA over intercollegiate basketball, which would involve something following the same pattern as the Oklahoma regents vs. NCAA case did- might be a very good thing for UCONN.

I'm no lawyer though, just participating in the Holiday Inn express open mic night.

 

[nelsonmuntz]

Interesting discussion but let's be real here. I guarantee all those espousing the viability of an antitrust case by the G-5 will intellectually reverse that opinion should we receive a P-5 invite. It's funny how once you're in the club all the exclusionary rules you once railed about become suddenly tolerable.

Why would I do that? I said that the BCS had all kinds of legal issues when UConn was in the BCS.

 

[HuskyHawk]

Interesting discussion but let's be real here. I guarantee all those espousing the viability of an antitrust case by the G-5 will intellectually reverse that opinion should we receive a P-5 invite. It's funny how once you're in the club all the exclusionary rules you once railed about become suddenly tolerable.

Of course. But the reality is UConn will get an invite, so will Cinci, and perhaps UNLV, Nevada, New Mexico, Colorado State, San Diego State, Boise and a few others. Once you take the potential complainants off the table, who is left? How many angry Senators are left from states that have a major university playing FBS football? Not many. So the appetite for a suit and for the government to pursue such a case becomes very low. Leave Harry Reid's two schools out, and New Mexico's, Connecticut's, Idaho's, New Mexico's, and second tier schools in Ohio, Colorado, Utah, TX or perhaps Florida, and you start to have critical mass. Third tier schools like ECU or Temple can probably be safely left on the sidelines with no political fallout.

I won't opine on the form of the invite, but my guess is that the P5 needs to accommodate several more schools. Whether that means that they each go to 16, or whether it means that a new league joins to make it P6, I don't know. If the latter, look for a merger of the cream of the MWC and AAC, and expect that public schools will be filling the slots along with BYU. Tulsa, Tulane, Rice probably need not apply. If the former, you could see The Big 12 and Pac 12 absorb much of the MWC plus Cinci, with UConn to the ACC.

 

[noeynox]

I've stated before and I'll stand by it, what the p5, is doing by arbitrarily marginalizing schools is wrong. I'll still feel that way after UConn is invited.

A school like Houston with their history of Andre Ware, the Klingers, jack pardee should not be prohibited from competing for a national title in football. Same goes for BYU, Boise State, and others.

I don't like it. I'll be glad when UConn gets in, but i still won't be happy that the overall greed has led to this fork in the road.

 

[upstater]

Interesting discussion but let's be real here. I guarantee all those espousing the viability of an antitrust case by the G-5 will intellectually reverse that opinion should we receive a P-5 invite. It's funny how once you're in the club all the exclusionary rules you once railed about become suddenly tolerable.

Maybe if UConn was in the P5 already, this would be the case. However, I'll never feel that way given recent experience.

 

[kingdobbs]

G5 is an official term used to distinguish the P5 from the AAC, MWC, MAC, CUSA and some other conference. WAC? Sun Belt? Don't know.

Sun Belt. WAC football was put out to pasture at the end of the 2012-13 academic year; it's still an all-sports conference though (and because it's neither FBS or FCS anymore, it's considered part of a third group informally called "I-AAA" to match the previous classification, though the NCAA doesn't use that term; the Big East, A-10 and WCC are all a part of that grouping as well, informally).

 

[Nostical]

Maybe if UConn was in the P5 already, this would be the case. However, I'll never feel that way given recent experience.

Maybe, but I don't believe that anyone advocating brandishing pitchforks today will be rushing to the court if we get in, merely to make a larger point for the rest of the outcasts. That's just how life is for most of us. You may be different.