Episodes

Last week saw a cluster of college sports “news” stories that had texts and emails flying. The story that spawned the most interest was a new “bipartisan” NIL-related federal legislative effort led by Senator Tommy Tuberville (R-AL) and Joe Manchin (D-WV). Sports Illustrated broke the story Wednesday afternoon, August 3rd. Then SI also reported on the re-release of the Athletes Bill of Rights sponsored primarily by Senators Cory Booker (D-NJ) and Richard Blumenthal (D-CT). These notable ‘breaking news” items were sandwiched between less reported (but significant) NCAA press releases. This episode discusses how “news” on the regulation and business of college sports often ignores important, co-temporal events that are seemingly unrelated.

Big-time college sports are a market defined by anticompetitive behavior. The NCAA and Power 5 conferences believe they should not have to play by the same rules as any other industry in America. They believe—and have always believed—that they are above the law. This episode analyzes the grant of rights contracts through the lens of restraints on competition among and between Power 5 conferences after the first wave of conference realignment. The relationship among the Power 5 subcartel has been defined principally by how they have cooperated to dominate the college football marketplace and regulate college sports.

n Realignment 2.0, schools in Power 5 conferences looking to leave their current conference must factor into their decision-making an arcane but powerful contractual barrier: the grant of rights. Grant of rights contracts create stability in the Power 5 conference structure and disincentivize schools from changing conferences. These contracts came into use in big-time college sports after the first major conference realignment between 2012 – 2014 that gave birth to the Power 5. Grant of rights contracts requires conference member institutions to assign their television rights to the conference entity. Existing conference broadcast media contracts quantify the value of these rights. The grant of rights is in place for the broadcast media contract’s full term. By surrendering their television rights to the conference, schools are essentially forfeiting their value in the marketplace should they leave their conference. This provides a powerful incentive for schools to honor their existing conference commitment and an equally powerful disincentive for conferences looking to “poach” schools from other conferences. This episode analyzes grant of rights contracts through a framework offered in a 2017 law journal article titled “Irrevocable but Unenforceable? Collegiate Athletic Conferences’ Grant of Rights” published in the Harvard Law School Journal of Sports and Entertainment Law. I spoke last week with the author of the article, Mark Wilhelm, a corporate transactions attorney with the Troutman Pepper law firm. His article received national attention after Andy Staples (The Athletic) wrote about it earlier this month. Wilhelm’s journal article discusses the factors schools may choose to weigh in decisions regarding a potential switch in conference affiliation. Wilhelm’s analysis also addresses the enforceability of grant of rights contracts.
Resources:
Irrevocable but Unenforceable? Collegiate Athletic Conferences’ Grant of RightsHarvard Journal of Sports and Entertainment Law (Volume 8, p. 63 Winter 2017; Mark T. Wilhelm)

The dominoes are in place. How many will fall? This episode examines the big-picture implications of the most recent Power 5 backstab. As is often the case in college sports, past is prologue. The evolution and influence of the television era in college sports towers over the values of higher education and the “integrity of college sports.” Say goodbye to collegiality, respect for conference contracts, geographical boundaries, and the “athlete voice.” We are witnessing the logical endpoint of Board of Regents and the avarice it inspired. The SEC’s and Big Ten’s imperial march through the remaining inventory of big-time college football products was inevitable. The wreckage left behind may prove difficult to repair.