ESPN/Big 12 and Pac 12 Tampering

Potential grounds for litigation and a blueprint to blow up the ACC

I just received the University of Cincinnati’s new member agreement with the Big 12 bringing my total of new member conference agreements to nine (you can download UC’s agreement below). There are three distinguishing characteristics among these nine agreements. These differences suggest ESPN, working through the Big 12, may have violated an undisclosed “telecast” agreement with the Pac 12 when it induced at least two of the four corner schools to jump ship. They also point to strategies ESPN may use to blow up the ACC.

If the Pac 12’s agreement with ESPN was similar to the Big 12/ESPN telecast agreement effective in 2021, these three items may be grounds for a lawsuit by the Pac 12 against ESPN. The lawsuit would be patterned after the Big 12’s threat to ESPN, after the Big 12 accused ESPN of trying to break up the Big 12. That threat of litigation by the Big 12 was contained in the letter dated July 28, 2021, (see below) obtained by @SINow and reported by @RossDellenger.

In the letter by the Big 12, Commissioner Bowlsby writes to ESPN, “I am aware that ESPN has ….been actively engaged in discussions with at least one other conference regarding that conference inducing additional Members of the Big 12 Conference to leave the Big 12 Conference. The commissioner goes on to cite a “Telecast Agreement” between the Big 12 and ESPN that states that ESPN will not “take any actions likely to impair, or [that are] inconsistent with, the rights Conference has acquired under this agreement.” Fast forward two years, the dispute fades away and ESPN provides the Big 12 with funding to induce four Power 5 schools to join the Big 12.

Is this a coincidence or a settlement?

Oregon State Athletic Director Scott Barnes strikes a similar tone to that of Big 12 Commissioner Bowlsby above, writing to the OSU fan base “I hear you and know that it feels like since August (Pac 12 demolition) we have been on the receiving end of multiple gut punches. When that happens, you are faced with two options – exit the ring or throw counterpunches. Hear this Beaver Nation, the gloves are on, and we will not stray from our mission.”

Could legal action against ESPN, following the Big 12 blueprint, be imminent?

A review of my sampling of nine conference agreements finds three differences among new membership agreements:

1. Application fees paid/waived to join a new conference

2. Financial assistance by media partners with conference moves

3. Representations made regarding communications by and between universities and the new conference before joining said conference.

Application Fees: Big 12 gives Pac 12 teams a waiver

Texas and Oklahoma paid an application fee to the SEC, but they both redacted the amount from their new member agreements. It was the only redaction they made, so I’m assuming it was a significant amount. UCLA paid $15 million and Oregon paid $7.5 million to apply to the Big 10. These differences likely reflect UCLA’s status as a “full-share” member (for media revenue distributions) and Oregon’s status as a “half-share” member. I have yet to receive Washington’s membership agreement with the Big 10, and USC, as a private institution is not subject to public records acts.

Cincinnati paid $2.5 million to apply to the Big 12 for membership (see below), whereas the Big 12 did not require Pac 12 members Colorado, Utah, and Arizona State to pay an application fee. I have yet to receive Arizona’s new membership agreement.

Cal’s new member agreement with the ACC, signed after the demolition of the Pac 12, is in the form of a countersigned letter and does not reference an application fee.

In summary, before the Pac-12 demolition, UCLA, Texas, Oklahoma and Cincinnati paid application fees to join the Big 10, SEC, and Big 12. On the eve of the Pac 12 demolition, the Big 10 required an application fee from Oregon (and likely Washington), while the Big 12 waived application fees for Colorado, ASU, and Utah.

ESPN/Fox helps top targets move conferences

Texas, Oklahoma, Oregon, and Colorado received financial assistance from their new conference media partners to assist in the transition to a new conference. ESPN will make a transition payment to Texas and Oklahoma (that shall pass through the SEC) which is above and beyond what ESPN was scheduled to pay the SEC. That payment should be made sometime between July 2024 and July 2025 (contract language below)

Fox is giving Oregon the option to collect an advance of up to $10 million a year from future media revenues. Statements from the University of Washington indicate this advance is to ease the transition costs, primarily travel, of the new members (contract language below).

Finally, the Big 12 is giving Colorado, the first Pac-12 school to jump to the Big 12, a $2.5 million transition bonus (contract language below).

This financial aid to transition schools from one conference to another, funded by media companies, demonstrates how closely conferences work with their media partners to secure new members.

The Big 12 asked Pac 12 Schools for legal cover

One purpose of representations and warranties in legal agreements is to get the party’s story straight in the event of litigation. For example, you may have purchased a house “where is/as-is,” which is a representation by you and the seller that you both understand and agree any problems with the house after title passes are all yours. You don’t pay an attorney to add meaningless representations to an agreement if there is no chance of a future dispute on that aspect of the transaction.

Here is the “we didn’t tamper” language from the Cincinnati-Big 12 Agreement:

And here is Colorado’s tampering language (identical to Cincinnati’s):

Here is where the tampering language gets squishy (not a legal term). Utah and Arizona State did not agree to include the straightforward “we didn’t tamper” language found in Cincinnati’s and Colorado’s agreements:

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Utah and ASU could not represent in a legal document that they initiated contact with the Big 12, suggesting the Big 12 made the first move.

In summary, the Big 12 provided the public with a glimpse into the content of secretive telecast contracts when they threatened ESPN with litigation over tampering with their members. New member agreements disclosed by universities since that time indicate how tampering could take place: 1) waivers of application fees, 2) financial assistance from media companies to help universities transition to new conferences, and 3) conferences making unsolicited offers to universities to defect from their current homes. Unsolicited contact seems to be the practice that is most likely to be litigated since this is the practice the Big 12 asked joining members to refute. Since Utah and ASU could not refute that the Big 12 initiated contact, this may be the first place that Scott Barnes throws a counterpunch.

University of Cincinnati’s Big 12 Membership Agreement

Big 12 Admission Agreement Cincinnati

19.8MB ∙ PDF file

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