It’s the latest development in what could be a massive reorganization of power and money in college sports, kicked off earlier this week by Oklahoma and Texas announcing their intentions to leave the Big 12. The letter, dated Wednesday, tells the Disney unit to stop communicating with any remaining Big 12 members, and not to discuss those members with any other NCAA conference looking to expand, according to a copy published by Sports Illustrated.
Sent by Big 12 commissioner Bob Bowlsby to ESPN executive Burke Magnus, the letter contends that ESPN has partaken in “an apparent attempt to interfere” by “inducing” members to breach contractual obligations “for the financial benefit of ESPN.” It also claims ESPN is actively helping another conference lure one of the Big 12’s remaining members. Cease and desist letters are typically a precursor to lawsuits, and Bowlsby’s language is similar to the legal claim for tortious interference with contractual relations, which involves an allegation that a business is trying to cause another to breach a contract.
ESPN said in a statement that “the claims in the letter have no merit.” A representative for the Big 12 declined to comment.
The letter is especially noteworthy because of ESPN’s entrenched position within college sports. Not only is it the dominant network for media deals, but it is also the primary corporate force in all of college football. It has contracts with both the Big 12 and the SEC, the conference that Texas and Oklahoma are trying to join. It is also a partner on the SEC Network and Texas’ Longhorn Network, which could play a critical role in helping negotiate buyouts with the Big 12. While it’s unclear whether ESPN was directly involved in Oklahoma and Texas’ original SEC outreach, any final resolution will almost certainly involve the company in some capacity.
Bowlsby’s letter cites Section 20.2 (c) of the Big 12 telecast agreement with ESPN. According to this part of the contract, ESPN is barred from taking any actions “likely to impair” or are “inconsistent with” the rights of the conference as acquired in the contract. In other words, the letter is saying ESPN is breaching its deal with the Big 12 and could owe the organization monetary damages. Should the Big 12 eventually petition a court to block ESPN from the type of conduct the activities mentioned in the letter, that provision could be part of its argument.
Texas and Oklahoma leaving the Big 12, which they formally announced their intention to do on Monday, is potentially the first domino in what could be a massive upheaval in college sports. As happened 10 years ago, conference realignment can quickly balloon into a game of musical chairs, with schools jumping to new leagues in the hopes of strengthening their share of the billions generated at the top levels of college football.
Since that last round of realignment, the NCAA’s top tier has been dominated by the “Power Five”—the SEC, ACC, Big Ten, Pac-12 and Big 12. Now, with Oklahoma and Texas leaving the Big 12, it’s unclear what the future holds. Can the Big 12 add more members and maintain its position? Will remaining members leave for other leagues? Can the American or Pac-12 gain prominence?
In the background of this all is ESPN, which will carry more than 1,000 regular season college football games in 2021, 10 times more than Fox, its closest competitor. ESPN also controls the College Football Playoff, and either owns or broadcasts nearly every bowl game.
If sued for breach or tortious interference, ESPN would have a number of defenses at its disposal. First, ESPN would dispute that it has violated any terms of the contract or engaged in any other fraudulent acts. Second, ESPN is a news company and, as such, enjoys wide latitude under the First Amendment to engage in news reporting. The U.S. Supreme Court made this clear in New York Times v. U.S., a decision from 1971 when the Court enunciated news companies have substantial discretion in reporting on news. Whether ESPN’s contractual duties to the Big 12 as a business partner trump its First Amendment rights in news reporting would be a key issue in any legal battle.