Question for Boneyard lawyers

[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.

 

[noeynox]

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.

Your right, in that it will be “their " problem, but i won't be bashing those fan bases about how they don't “belong".

 

[VAHuskyFan]

This would be an awfully tough antitrust case.

Here's the problem: According to the U.S. Supreme Court, NCAA football is "an industry in which horizontal restraints on competition are essential if the product is to be available at all." -NCAA v. Board of Regents, 468 U.S. 85, at 101 (1979).

UConn would have to do a lot more than point to the existence of various horizontal restraints that cause harm as to UConn. Behavior that would, in other industries, be condemned as per se illegal is subject to the rule of reason in the sports context. Shouting "collusion" or "group boycott" is not going to get you anywhere. Every conference is, by definition, a group boycott of other teams. And members of every conference must meet and agree on schedules and rules that all will follow.

To successfully challenge the P5, UConn or another plaintiff would have to demonstrate that a particular restraint or group of restraints is unreasonable -- which would mean demonstrating that they have the effect of (or the clear purpose of) restricting the supply of top tier college football contests. (This would involve defining "top tier" P5 football as a separate product market from G5 football, which while possible would nonetheless be an uphill battle.)

Technically, a plaintiff could succeed just by demonstrating that the effect of the P5 agreements is to restrict the supply of "top tier" football -- but that would involve forecasting the future, which a court would be reluctant to do in such a complex industry. Thus, as a practical matter, a suit is unlikely to be successful without clear evidence of anticompetitive intent (e.g. "starving" non P5 schools of money needed to compete at a "top tier" level.) I would not be at all surprised if this is, in fact, the motivating force behind much of what the P5 is doing -- but finding sufficient evidence to demonstrate that it was a conscious plan or scheme (and not just something one particular AD wrote in an internal email) would be extremely difficult.

 

[Fishy]

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

Apple, ConAgra, US Airways....they're actually pretty active.

 

[nelsonmuntz]

This would be an awfully tough antitrust case.

Here's the problem: According to the U.S. Supreme Court, NCAA football is "an industry in which horizontal restraints on competition are essential if the product is to be available at all." -NCAA v. Board of Regents, 468 U.S. 85, at 101 (1979).

UConn would have to do a lot more than point to the existence of various horizontal restraints that cause harm as to UConn. Behavior that would, in other industries, be condemned as per se illegal is subject to the rule of reason in the sports context. Shouting "collusion" or "group boycott" is not going to get you anywhere. Every conference is, by definition, a group boycott of other teams. And members of every conference must meet and agree on schedules and rules that all will follow.

To successfully challenge the P5, UConn or another plaintiff would have to demonstrate that a particular restraint or group of restraints is unreasonable -- which would mean demonstrating that they have the effect of (or the clear purpose of) restricting the supply of top tier college football contests. (This would involve defining "top tier" P5 football as a separate product market from G5 football, which while possible would nonetheless be an uphill battle.)

Technically, a plaintiff could succeed just by demonstrating that the effect of the P5 agreements is to restrict the supply of "top tier" football -- but that would involve forecasting the future, which a court would be reluctant to do in such a complex industry. Thus, as a practical matter, a suit is unlikely to be successful without clear evidence of anticompetitive intent (e.g. "starving" non P5 schools of money needed to compete at a "top tier" level.) I would not be at all surprised if this is, in fact, the motivating force behind much of what the P5 is doing -- but finding sufficient evidence to demonstrate that it was a conscious plan or scheme (and not just something one particular AD wrote in an internal email) would be extremely difficult.

The 1984 Oklahoma case is more recent, and more relevant. In a 7-2 decision, the Court ruled that the NCAA was a restrictive organization, despite the acknowledgement that you cited. The court further qualified the citation to apply to "A myriad of rules affecting such matters as the size of the field, the number of players on a team, and the extent to which physical violence is to be encouraged or proscribed, all must be agreed upon, and all restrain the manner in which institutions compete." They never included the right of certain institutions to refuse to play others that wanted to compete on the highest level, or negotiations between and among members of a cartel to divide the postseason by some basis other than free market competition.

Shouting "collusion" and "group boycott" will go very far, particularly since your citation does not say what you think it says. Conferences are on shaky ground from an anti-trust perspective, and the P5 is dead in the water.

Edit: It's worth noting that White and Rehnquist were the two dissenters in the 1984 case, and their argument was predicated on the non-profit nature of the NCAA. That would be a much harder argument for the P5 to make. Maybe one of the hardcore anti-government judges like Scalia or Thomas might vote with the P5, but I think it would be 8-1 or 9-0, if it ever got that far, which it wouldn't.

 

[HuskyHawk]

Apple, ConAgra, US Airways....they're actually pretty active.

The reality is that the FTC is more active than the DOJ. Section 5 of the FTC is incredibly broad, (1)Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful. That's pretty much it. Proving a Sherman Act or Clayton Act case against the P5 would be much more difficult. The FTC is certainly more aggressive. Just discussed this with outside counsel recently.