Burke Magnus, ESPN’s president of programming and original content, didn’t think much of the letter Big 12 commissioner Bob Bowlsby’s wrote to him on Wednesday.
“Your letter,” Magnus expressed in his reply on Thursday, “consists entirely of unsubstantiated speculation and legal conclusions.” He added, unequivocally, “There is nothing to ‘cease and desist’.”
Bowlsby claims ESPN is interfering with the conference’s legal interests by supposedly “inducing” members to breach contractual obligations “for the financial benefit of ESPN.” ESPN, as depicted by Bowlsby, is also unlawfully facilitating the potential movement of one Big 12 member to another conference. The network is also accused of breaching provisions found in the Big 12-ESPN telecast contract.
A cease and desist letter is a form of a demand letter. In some cases, it is a precursor to litigation. Often there are formal settlement talks before a lawsuit is filed. However, Magnus’s blunt rejection might not leave much room for settlement talks (to the extent ESPN believes there is anything to discuss).
If the Big 12 heads to court, it would likely seek an injunction, meaning an order from a judge that compels ESPN to immediately stop engaging in transgressions. Based on Bowlsby’s letter, two potential legal claims seem most likely: (1) ESPN has engaged in tortious interference with the contractual relations between the Big 12 and its member schools; and (2) ESPN is in breach of the telecast contract.
Convincing a court to issue an injunction could prove extremely difficult for the Big 12.
First, ESPN will force Bowlsby to offer proof of his claims. If Bowlsby merely suspects wrongful behavior but doesn’t have actual proof and can’t declare under oath—and under penalty of perjury—that he knows of ESPN interfering, a court won’t go along. Keep in mind, Bowlsby’s letter is not a sworn statement. If Bowlsby is part of a lawsuit, however, his written and spoken words would need to be backed up by facts.
Second, an injunction is often hard to obtain. The Big 12 would need to show it has a substantial likelihood of success on the merits, a standard that presents a high bar and is higher than “more probable than not.”
The Big 12 would also need to convince a judge it would suffer irreparable injury in the absence of an injunction. A court will usually find there is no risk of irreparable injury if monetary damages could later “cure” the harm. Perhaps the Big 12—which on Thursday saw two key members, Texas and Oklahoma, formally invited to join the SEC—could argue it would dissolve unless ESPN is stopped, but that seems like a speculative assertion.
Further, the Big 12 would need to persuade the judge that an injunction would not be adverse to public interest. ESPN could counter that an injunction would interfere with its news reporting, as secured by the First Amendment and Supreme Court precedent, and its ability to report on information that is in the public interest.
There are also pragmatic considerations that weigh against a lawsuit. Do Big 12 members—as opposed to conference leadership—really want to sue ESPN, the most watched and followed sports media and broadcasting company in the U.S.? Even if the Big 12 could persuade a judge to force ESPN to cease and desist, what has the conference, and its member schools, gained versus what has been lost?
(The story was updated to reflect the SEC’s formal invitation to Texas and Oklahoma to join the conference.)