I’ve been trying to write about topics other than conference realignment lately, but our favorite blogging crack habit has been buzzing in my ear like a hit summer song that you can’t avoid (see “Blurred Lines” now and “Call Me Maybe” last year)*.
(* For your perusing pleasure, Billboard put together a list of the top 10 songs for each summer since 1985. I can’t help but smile at some of the memories of these songs, particularly from my junior high years of 1991 and 1992. Sir-Mix-A-Lot!)
Big Ten expansion: It isn’t done. That’s about all I can say. Hint: The conference will begin negotiating on a new TV deal next year. The current contract expires in 2016. Definitely stay tuned.
This of course got the blog and message board world humming again with apocalyptic tales of the Big 12 and/or ACC imploding along with the Big Ten adding anywhere from 2 to 10 schools. To be sure, the chatter actually did produce something of value in the form of a West Virginia(!) an Ohio State fan procuring a copy of the Big 12 Grant of Rights agreement, which we’ll take a look at in a moment.
Joe Schad of ESPN then Tweeted this quote from Oklahoma AD Joe Castiglione yesterday:
Oklahoma AD Joe Castiglione on Sirius XM College: I don’t believe realignment is over.
— Joe Schad (@schadjoe) August 7, 2013
This is plausibly relevant since OU is one of those schools that could be in the mix if all of this starts swirling again. Of course, the quote ignores the context of the conversation, as it appears that Castiglione also said that such realignment would be over the next “10 to 15 years” as opposed to immediately.
What does this all mean? Like Castiglione, I’m still thinking nothing at least in the short-term. Further consolidation among the power conferences is possible, but it continues to seem more likely to occur in the 2020s at the earliest. If the Big 12 Grant of Rights agreement is substantially similar to what the Big Ten, Pac-12 and ACC have in place (and there isn’t much reason to believe that there would be much deviation), it makes little sense to believe that more realignment is imminent.
The Big 12 Grant of Rights agreement (the “GOR”) states that each school will grant to the conference its applicable media rights (in this case, first and second tier tights for football and men’s basketball) for the duration of the term of the agreement, regardless of whether such school is a member of the conference or not. As we’ve noted here previously, this means that even if, say, Texas were to leave for the Big Ten or Pac-12, the GOR mandates that the Texas first and second tier rights would still be owned by the Big 12 until the GOR period ends in 2025.
What’s most instructive about the GOR contract is what it doesn’t say. There isn’t a termination provision. There isn’t a liquidated damages clause. There isn’t any mechanism to calculate potential damages for a member leaving early. In fact, there isn’t any procedure at all about what would occur in the event that a member leaves the conference other than a couple of flat statements that the GOR is in effect for such member until 2025 no matter what. The Grant of Rights agreement is intentionally ambiguous.
As someone that served some hard time in the slammer of a large corporate law firm, fighting over ambiguous contracts can rack up mountains of billable hours more than virtually any other type of litigation. When you have a 200-page contract that covers every single scenario possible, that document might have been complex to draft but it’s usually a fairly straight-forward process in terms of applying it. However, when hundreds of millions of dollars are at stake, as there are in the GOR agreement, and it’s covered by a 4-page contract that is a simple grant without any termination or dispute resolution procedures, that in and of itself is a massive deterrent to anyone challenging the agreement. It’s almost impossible to determine the legal and financial exposure that a school that is contemplating leaving a GOR arrangement would have. There could be no exposure at all or it could be a large enough amount to literally bankrupt a school, and there’s very low confidence in assessing what’s more likely. In contrast, a school dealing with an exit fee understands its exposure immediately and can balance whether the worst case scenario (i.e. Maryland having to pay the full amount of its $50 million exit fee to the ACC) is still worth risking a defection over.
To be sure, there are plenty of theoretical arguments to challenge the GOR. As Jason Hutzler argued at Outkick the Coverage earlier this year, if a TV network decides to keep paying a conference with one or more defections as much or more than what it was paying prior to such defections (as was the case with the Big 12 over the past 3 years), then a school trying to break the GOR could argue that the conference didn’t suffer any damages at all and, as a result, shouldn’t have to pay a dime upon leaving. I don’t quite buy this argument as fully working, as virtually every school that has challenged any exit fee in this latest round of conference realignment has attempted to argue this in some form and has had little-to-no success, but it’s certainly a starting point when there isn’t any type of liquidated damages clause. A school could also attempt to argue that the GOR taken together with the Big 12 Bylaws that states that a withdrawing school will not receive any revenue arising out of the GOR (see Section 3.1 of the Bylaws) constitutes an unconscionable agreement (as the member would not be receiving any media revenue despite it still being subject to the GOR). That’s a tough argument, though, as that defense is typically used by parties that don’t have much bargaining power or were victims of fraud (which wouldn’t be applicable here).
Regardless, most lawyers could probably think of numerous ways to break a GOR arrangement on paper, but the practical problem is that none of them are high confidence lines of attack. As a result, a school that attempts to break a GOR would be heading into a situation where there is unknown and unlimited legal and financial exposure, which is a horrible position to be in. For every argument out there that there aren’t any damages to conference that suffers a defection, there’s a counterargument that such conference is entitled to the fair market value of all of the TV rights for the school that’s leaving. That FMV for a marquee program like Texas could easily run into the hundreds of millions of dollars (remember that ESPN is paying Texas an average of $15 million per year for its leftover third tier rights for the Longhorn Network, much less its top football and basketball games), which eliminates any financial incentive to leave no matter how much a new conference might be promising in terms of more revenue. You don’t want to jump into a lawsuit in those types of circumstances, especially with the amount of dollars that are involved in connection with power conference media deals. The proof is in the pudding with the amount of weight that the conference commissioners have assigned to these GOR agreements and the fact that similar arrangements are enforced in entertainment industry all of the time. Believe me – when Disney bought Marvel Entertainment in 2009, the Mickey Mouse conglomerate (which also happens to be the primary beneficiary of these GOR contracts via ESPN) employed armies of lawyers to try to figure out how to get out of all the long-term or even perpetual licenses that the comic book company granted to other competing movie studios when it was on the verge of bankruptcy in the 1980s and 1990s and they came up empty. Thus, Sony (via Columbia Pictures) continues to have the movie rights to Spider-Man* and Fox has the full suite of X-Men characters at its disposal despite Disney having paid $4 billion for Marvel.
(* Prior to the string of hit movies over the past decade, the Spider-Man movie rights had been passed around Hollywood like a doobie. James Cameron was actually in line to write and produce a Spider-Man movie in the early-1990s. Later, in the midst of litigation between Columbia Pictures and MGM over who actually could produce Spider-Man movies, the film companies ended up with a novel settlement: Columbia would drop all of its own claims that it could produce James Bond movies (which MGM had lorded over since the 1960s). Essentially, Spider-Man was traded in Hollywood for James Bond, which has ended up working out incredibly well for both of the studios involved. Sports fans have distinct memories of lopsided trades, such as Brock-for-Broglio, but I can’t think of a trade involving two legit superstars (the equivalent of Spider-Man and James Bond) that worked out for all parties.)
So, the GOR’s strength isn’t that it’s an ironclad complex agreement that doesn’t include any loopholes. Instead, it’s an arrangement that is a triple-dog-dare to schools that want to attempt to challenge it since there isn’t any reliable precedent about how to calculate damages. This is proverbial Russian roulette in a practical legal context – the damages could be more than you could imagine… or they could be less than what a normal exit fee would have been. That makes it a great moot court exercise for people like me and other writers in the peanut gallery, but a dangerous contract to challenge in real life. Lawsuits that are brought on principles other than money, such as constitutional challenges filed by the liberal ACLU or conservative American Center for Law and Justice, can afford to tackle these types of ambiguous arrangements. However, conference realignment is almost entirely about money, which means that the great risk of trying to challenge the GOR (even if there are viable legal arguments against it in theory) is likely going to be enough to dissuade any school from leaving a conference that has that type of contract in place. As much as I’d love to sit here and say that the Big Ten ought to add, say, Kansas and Oklahoma to its western division, without a prescribed course to challenge GOR agreements or a university president with the cajones to risk everything (who I’ll grant might be out there), power conference realignment is stopped dead in its tracks.
(Follow Frank the Tank’s Slant on Twitter @frankthetank111 and Facebook)
(Image from NewsOK)
FRANK THE TANK'S SLANT 