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Legal and Political Implications of College Football Conference Changes

By Rick Karcher, Michael McCann, Geoffrey Rapp, Greg Skidmore, and Howard Wasserman

It looks like we'll be seeing some movement with conferences, including the real possibility that Texas and Texas A&M will join the Pac 10 and SEC, respectively.

Some members of Congress are already talking about holding hearings to question and possibly block certain conference changes. The legal power of the federal government to stop changes in conferences is another matter. While they impact the economics (and admissions and fundraising efforts) of colleges, conferences are fundamentally voluntary associations of competing schools for scheduling and promoting games. And they are not etched in stone; their rosters have changed over the years, with schools joining and leaving conferences from time-to-time. The choice of competing schools to collude in a conference (and to not allow other competing schools to join and reap the economic benefits of conference membership) could in theory be seen as problematic with Section 1 of the Sherman Act, which prohibits concerted action that unreasonably restrains trade, but it's likely a difficult argument to make (as is discussed by Joseph Morton in the Omaha World-Herald). But when coupled with the topic of the BCS and automatic bids -- a topic of interest to the Justice Department -- perhaps we'll still some hearings on conferences.

Anyway, what would be an ideal conference arrangement of schools? My Vermont Law School colleague and good friend Jason Czarnezki, who played football at the University of Chicago in the late 90s, offers these excellent thoughts in his post College Football & Big Ten Expansion:

The Big Ten wants to expand from 11 teams to 12-16 teams. The Big Ten last expanded in 1991 when Penn State joined. Football, and the revenue that comes with it, drives expansion. The Penn State addition proved very successful. From the beginning I have argued that Big Ten expansion from this point is driven by three schools that the Big Ten would like to add:

(1) Notre Dame

(2) Nebraska

(3) Texas

Notre Name was ironically denied admission to the Big Ten at the turn of the century, and now wants to remain an independent. ND will join the Big Ten only when the Big East dies; though joining the Big Ten, and the accompanying Association of American Universities, would greatly enhance its academic profile.

The Big Ten seems to have landed Nebraska and its storied football tradition. My guess is that the Big Ten still wants Texas. The question is whether continued bad blood between Nebraska and Texas will allow this to happen, and whether Texas can join the Big Ten without Texas A&M (something that Texas politics might forbid). My guess is that this can only occur if Texas A&M goes to the SEC as some reports suggest.

Jim Delaney, commissioner of the Big Ten, is in my guess hoping for a dream scenario where the Big 12 (Colorado, for the Pac-10, and Nebraska, for the Big Ten, have already left) and Big East fall apart, and Texas A&M goes to the SEC. Then the Big Ten will have 14 teams with Notre Dame, Nebraska, and Texas, to go along with national football powers Ohio State, Penn State, and Michigan. The revenue would pour in at that point for cable?s Big Ten Network. I question whether the Big Ten can pull this off but I think it?s their dream scenario.

The divisions, setting up a conference championship game, would look like this:

West Division: Texas, Nebraska, Iowa, Minnesota, Wisconsin, Illinois, Northwestern

East Division: Notre Dame, Indiana, Purdue, Michigan, Ohio State, Penn State, Michigan State

Such a strong football conference might also argue to have two automatic BCS bowl qualifiers.

Full post as published by Sports Law Blog on June 11, 2010 (boomark / email).