The Big Ten’s decision to postpone fall sports has caused infighting at the 14-school league. The presidents of Nebraska and Iowa reportedly voted in favor of playing, and Cornhuskers coach Scott Frost has openly discussed the long-shot idea of playing in another conference.
Disagreement on such a divisive topic isn’t surprising. The COVID-19 pandemic involves health risks that aren’t yet fully understood, including fears of long-term ailments that could afflict young and old. At the same time, the cancellation of fall football will cost schools millions of dollars and disappoint players and fans alike.
The more difficult assessment is determining next steps and whether judges might become involved.
On the surface, Nebraska and Iowa must honor the defeat. As explained on Sportico, they aren’t contractually free to join another conference for the fall 2020 semester. Big Ten Commissioner Kevin Warren has been clear on that point; Nebraska’s chancellor and system president said something similar Thursday morning.
But if any school tries to play games this fall in defiance of its conference’s rules, it might look to the late Al Davis for some guidance. The famed Raiders owner successfully litigated against another formidable sports conference—the NFL—in the wake of his open defiance.
Davis battled the NFL and fellow owners on multiple occasions. Of particular relevance was his successful antitrust lawsuit in the early 1980s.
Back then, Davis eyed the chance to move his franchise from Oakland to Los Angeles—a much larger media market that had recently seen the Rams resettle in nearby Anaheim. But in order to comply with NFL bylaws, Davis needed approval from three-fourths of the 27 other teams’ principal owners.
Davis took it to a vote. It led to a disastrous result: 22 owners voted no and five abstained.
Yet Davis wasn’t deterred. He simply disregarded the vote and moved the Raiders to Los Angeles anyway. The decision sparked a lengthy legal battle involving the NFL and franchise owners.
The NFL maintained that Davis had willfully breached his contractual obligation to follow league rules. But he insisted that the league and other owners had engaged in anti-competitive conduct to protect the nearby Rams. The three-quarters rule, Davis argued, unduly interfered with market-based movement of NFL franchises. Davis offered an empirical argument that the size of Los Angeles would greatly enhance his franchise value. The data left no doubt: Los Angeles had a much larger population and more prosperous economy than Oakland. Staying in Oakland, Davis asserted, would cost him many millions of dollars.
The U.S. Court of Appeals for the Ninth Circuit sided with Davis, but not because Los Angeles was a superior market. It was because of process, or lack there-of.
The court highlighted the NFL’s lack of measurable criteria for determining when an owner’s petition to relocate is desirable or undesirable. It seemed, the court reasoned, that owners could reject a fellow owner for any reason, including frivolous ones.
The court surmised that owners resented Davis for being a “maverick.” Writing for the court, Judge J. Blaine Anderson held:
To withstand antitrust scrutiny, restrictions on team movement should be more closely tailored to serve the needs inherent in producing the NFL “product” . . . An express recognition and consideration of those objective factors espoused by the NFL as important, such as population, economic projections, facilities, regional balance, etc., would be well advised. Fan loyalty and location continuity could also be considered. Al Davis in fact testified that in 1978 he proposed that the League adopt a set of objective guidelines to govern team relocation rather than continuing to utilize a subjective voting procedure . . . [T]estimony indicated that some owners, as well as Commissioner [Pete] Rozelle, dislike Al Davis and consider him a maverick. Their vote against the Raiders’ move could have been motivated by animosity rather than business judgment.
There are plenty of distinctions between the situation that Davis faced 40 years ago and the one schools like Nebraska and Iowa face today. Davis wanted to move his team while Nebraska and Iowa merely want to play games. The variable of a once-in-a-century pandemic was also not at play for Davis, who employed professional athletes rather than—like Frost and Hawkeyes coach Kirk Ferentz—supervised college students.
Still, both situations involve football programs that stand to lose considerable money because of a decision made by a membership organization. Both also involve programs where there are persuasive economic arguments. Davis credibly showed why Los Angeles was a superior market. Nebraska and Iowa, similarly, could show the financial repercussions of not playing in the fall. They could also point out that the SEC, Big 12 and ACC have (for now) deemed it safe to play.
To prevail, Nebraska and Iowa would likely need to identify fundamental unfairness in the Big Ten’s decision-making process. Davis convinced the court that his petition was arbitrarily rejected. Could Nebraska and Iowa make an analogous argument?
To get there, some factual questions would need to be answered. Did the Big Ten follow all procedures in reaching its decision? Were objective criteria used to determine the best course of action? Did dissenting members have a meaningful opportunity to make their case? Is there any ambiguity in membership obligations that might permit out-of-conference games in the midst of a pandemic?
Lawsuits can take years to play out. If Nebraska and Iowa want the help of courts, they had better act fast. They could seek a temporary restraining order that permits them to play out-of-conference games over the objections of the Big Ten and without forfeiting their conference membership. The schools could insist they will suffer irreparable harm to their programs if they can’t play—in addition to losing money, the schools might lose appeal among recruits, fans and alumni. Such losses can’t be quantified, or so the attorneys would argue.
The Big Ten is probably confident it would prevail. The decision to postpone was for good reason: a worldwide infectious disease pandemic is happening. So long as the Big Ten followed its procedures and didn’t act arbitrarily, the conference is likely on solid footing.
Should the Big 12, ACC and SEC continue to push forward with football, we’ll likely see in the next few weeks how serious these schools are about trying to fill out a football schedule. Ohio State AD Gene Smith, whose head coach initially said something similar to Frost, confirmed Wednesday that playing elsewhere was “not an allowable opportunity.”
A number of college administrators have told Sportico that they view the posturing by Big Ten coaches to be an attempt to make current players—and possibly more important, future ones—see that they’ll do anything to protect their athletes’ right to play football. In that sense, the chatter may be more rhetorical than serious.
“If someone was trying to negative recruit against me from a conference that was still playing, I would say, ‘That was our conference commissioner’s office, it was out of our hands,’” said Jim Nagy, a former scout who now runs the Senior Bowl. “I’d tell them, ‘If it were up to Ohio State football we would have played this year. And if you go online and google my reaction afterwards, you’ll see my feelings on it.’”