Microsoft Word - Dennie - Edits (Final).docx

249!

CONFERENCE REALIGNMENT: FROM

BACKYARD BRAWLS TO CASH COWS

Christian Dennie

I. Television, Commercialism and the Rise of the Conference

.........................................................................................................249

II. Frenzy of Conference Realignment from 2010 to Present ...254

III. Legal Challenges Relating to Conference Realignment.......257

A. Big East Litigation.................................................................257

B. Western Athletic Conference v. California State University,

Fresno .........................................................................................258

C. West Virginia University v. The Big East Conference.........260

D.Baylor University v. Texas A&M University and

Southeastern Conference: It Did Not Happen, But What If… 264

E. Navigating Texas Sovereign Immunity Law if Baylor Brought

Suit Against Texas A&M...........................................................265

F. Potential Claims against the Southeastern Conference ......269

IV. What is the Affect of Conference Realignment? ...................271

A. What about the Student-Athletes?........................................272

B. What Happened to the Rivalries? .........................................275

V. Conclusion ..............................................................................278

I. TELEVISION, COMMERCIALISM, AND THE RISE OF THE

CONFERENCE

Today, intercollegiate athletics is a wildly successful

commercial enterprise. Through the advent of television and

media outlets and a growing public appetite for sports spectacle,

intercollegiate athletics continues to grow rapidly. In 1938, the

University of Pennsylvania (“Penn”) televised the first

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Christian Dennie is a partner at Barlow Garsek & Simon, L.L.P. in Fort Worth,

Texas. He received his B.B.A. from Sam Houston State University and his J.D. from

the University of Oklahoma.

250 MISSISSIPPI SPORTS LAW REVIEW [VOL. 1:2

intercollegiate football game, albeit to only six viewers.

As the

number of televisions in households across the country increased

in the late 1940s, universities began to televise their athletic

competitions.

Then, in 1951, the National Collegiate Athletic

Association (“NCAA”) members endorsed a program of restricted

live football telecasts, administered by the NCAA and continuing

through the 1983 playing-season.

NCAA member institutions

were initially skeptical about the NCAA’s control over television

broadcasting, and Penn threatened to continue broadcasting its

athletic contests within its own parameters.

Penn, however,

backed away from its position after the NCAA declared it a

“member in bad standing” and four visiting opponents cancelled

athletic contests with Penn for the 1951 season.

In 1977, sixty-two of the largest college football programs

formed the College Football Association (“CFA”) to coordinate

internal lobby efforts on behalf of major college football interests.

The CFA desired to increase revenue for top college football

programs, which included larger television revenue.

In 1981, the

CFA was offered a four-year $180 million contract to pull its

members’ games from the NCAA television program with ABC

and sell them independently to NBC. This would have been a

sizeable increase in revenue for the sixty-two members of the

CFA.

Initially, the CFA members relented in light of the NCAA’s

threats to expel any institution, including all athletic programs

that participated in removing their football contests from the

NCAA television program.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 89

(1984).

ANDREW ZIMBALIST, UNPAID PROFESSIONALS: COMMERCIALISM AND CONFLICT IN

BIG-TIME COLLEGE SPORTS 91 (1988).

A Brief History of NCAA Television Coverage, NAT’L COLLEGIATE ATHLETIC ASS’N

(2010),http://www.ncaa.org/wps/wcm/connect/broadcast/media/broadcasting/a+brief+

history+of+ncaa+television.

MURRAY SPERBER, COLLEGE SPORTS, INC. 49 (New York: Henry Holt and

Company, 1990).

Id.

KEITH DUNNAVANT, THE FORTY-YEAR SEDUCTION 114 (Newman, Ga.: Solovok

Publishing, 1997).

Id.

Id. at 132.

Id.

2012] From Backyard Brawls to Cash Cows 251

The skepticism among CFA members only grew in the 1980s,

with the CFA’s support the University of Oklahoma (“Oklahoma”)

and the University of Georgia, in a legal action against the NCAA,

alleging that the collective sale of football broadcast rights

constituted an illegal cartel in restraint of trade.

After arguing

the case to the United States Supreme Court, the Court

determined that the NCAA violated Section 1 of the Sherman Act

thereby ending the NCAA’s centralized control of college football

television broadcast rights;

therefore, the CFA was free to enter

into agreements on behalf of its sixty-two member body.

In the summer of 1984, the CFA negotiated the first of four

successful television agreements spanning from 1984 to 1995. The

first agreement was a one-year agreement with ABC for $12

million.

The CFA then negotiated three more television

agreements including: a two-year agreement for 1985 and 1986

with ABC and ESPN, a four-year agreement for 1987-1990 with

CBS and ESPN, and a final five-year agreement for 1991 to 1995

with ABC/ESPN.

With competition in the marketplace, fans

were able to watch four times as many games following the

invalidation of the NCAA’s television rights agreement.

As more football contests were televised nationally, the

broadcasters began to develop a regional based format that

generated concern among CFA members. One such concerned

institution was the University of Notre Dame (“Notre Dame”).

Notre Dame became unhappy with ABC’s regional broadcast

format and, consequently, resigned from the CFA to negotiate its

own media rights agreement with NBC that ultimately totaled

$38 million over four years.

Then, in 1995, CBS made a direct

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

A.A. FLEISHER, B.L. GOFF, & R.D. TOLLISON, THE NATIONAL COLLEGIATE

ATHLETIC ASSOCIATION: A STUDY IN CARTEL BEHAVIOR 59 (1992).

Bd. of Regents of Univ. of Okla., 468 U.S. at 106-13 (1984) (holding the record

supported the district court’s conclusion that the NCAA unreasonably restrained trade

under the Sherman Act).

Mark Asher, ABC-CFA After TV Deal in Light of NBC-Notre Dame,

WASHINGTON POST, Feb. 8, 1990, at C12.

DUNNAVANT, supra, note 6 at 159, 161-68, 198, 216.

Id. at 163.

Mark Asher, ABC-CFA After TV Deal in Light of NBC-Notre Dame,

WASHINGTON POST, Feb. 8, 1990, at C12; William F. Reed, All Shook Up: Seismic Shifts

Are Altering the Sport’s Landscape, SPORTS ILLUSTRATED, Aug. 26, 1991.

252 MISSISSIPPI SPORTS LAW REVIEW [VOL. 1:2

pitch to the Southeastern Conference

(“SEC”) to acquire its

television rights.

CBS offered and the SEC accepted an offer of

$85 million over five years to move its football contests to CBS,

which was double the average amount each team was receiving

under the CFA agreement.

With the CFA suffering as a result of the defections of Notre

Dame and the SEC institutions, member institutions began to

jockey for inclusion in conferences that had the best opportunity

for large television revenue. The first conference concerned with

losing its position among the elite was the Southwest

Conference.

In 1992, the University of Arkansas (“Arkansas”)

left the Southwest Conference to join the SEC, which boasted

eighteen percent of the national television audience, which

provided a larger viewing audience.

Arkansas’ defection left the

all-Texas conference vulnerable, because it had only 6.7 percent of

the nation’s television sets.

After the loss of Arkansas and major

scandals on almost every Southwest Conference campus, the

demise of the conference was inevitable. In the fall of 1996, Texas

A&M University (“Texas A&M”), University of Texas (“UT”),

Baylor University (“Baylor”), and Texas Tech University (“Tech”)

joined the Big Eight Conference institutions to create the Big 12

Conference

(“Big 12”), thus the Southwest Conference

dissolved.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

The Southeastern Conference has boasted a rich athletic history since its

inception in 1933, which produced 140 national team championships since 1990. About

the SEC, THE OFFICIAL SITE OF THE SOUTHEASTERN CONFERENCE,

http://www.secdigitalnetwork.com/SECSPORTS/THESEC/AbouttheSEC.aspx.

Tom Dienhart & Mike Hugenin, CFA Bids Farewell After Accomplishing Its

Goal, THE SPORTING NEWS, June 30, 1997.

Id.

The Southwest Conference was founded in 1914 and operated until the

conclusion of the 1995-96 athletic year. Gary Cartwright, 0:00 To Go: Time Has Run

Out on the Southwest Conference, but What a Time it Was, SPORTS ILLUSTRATED, Oct.

30, 1995.

A Look Back at the Southwest Conference, TEXAS ALMANAC,

http://www.texasalmanac.com/topics/sports/look-back-southwest-conference.

Id.

The Big 12 Conference began play in 1996 and boasts 42 NCAA team titles and

492 individual national championships. The Big 12 Conference, BIG 12 CONFERENCE -

OFFICIAL ATHLETIC SITE (Nov. 28, 2011),

http://www.big12sports.com/ViewArticle.dbml?DB_OEM_ID=10410&ATCLID=1514841

A Look Back at the Southwest Conference, supra, note 20.

2012] From Backyard Brawls to Cash Cows 253

Today, conferences have immense power with the ability to

restructure the state of intercollegiate athletics. With the chase

for stability among conference members and the pursuit of even

more revenue, conferences look more like high school dating

relationships than long-term marriages among institutions with

similar academic and athletic goals. Conferences are now the sole

negotiators among the purveyors in the media rights market and,

thus, have substantial control to manipulate the market. Now, the

media rights agreements entered into by conferences on behalf of

their member institutions have inflated to in excess of $1 billion.

According to the Sports Business Journal, the major conferences

have entered into the following media rights agreements:

Conference Terms Contract Years Network(s)

Big Ten $1 billion/10 years 2007-08 through 2016-17 ESPN/ABC

$200 million/6 years 2011-12 through 2016-17 CBS

$2.8 billion/25 years 2007-08 through 2031-32 Big Ten Ntk

Big East $200 million/6 years 2007-08 through 2012-13 ESPN/ABC

SEC $2.25 billion/15 years 2009-10 through 2023-24 ESPN/ABC

$825 million/15 years 2009-10 through 2023-24 CBS

ACC $1.86 billion/12 years 2011-12 through 2022-23 ESPN/ABC

Big 12 $1.17 billion/13 years 2012-13 through 2025-26 Fox

$480 million/8 years 2008-09 through 2015-16 ESPN/ABC

$78 million/4 years 2008-09 through 2011-12 FSN

Pac-12 $3 billion/12 years 2011-12 through 2022-23 ESPN/Fox

With the increase in media rights agreements, conferences

are increasingly powerful, and possibly more powerful than the

NCAA. With such power and the ability to re-open media rights

agreements with the addition of new members, conference

realignment, at least for the time being, is a side effect of the

omnipotence and desire for increased revenue.

Conferences are

now major players that can create seismic shifts in institution

membership, revenue, and loyalty.

This article argues that conference realignment erodes many

of the rivalries that make college sports exceptional and how it

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Michael Smith and John Durand, Expanding ACC Will Reopen ESPN Deal,

SPORTS BUS. J. 1 & 32 (Sep. 26-Oct. 2, 2011).

Id.

254 MISSISSIPPI SPORTS LAW REVIEW [VOL. 1:2

fails to account for the better interests of student-athletes.

Intercollegiate athletics must change and redirect its focus to

matters that benefit student-athletes instead of additional

revenue. Part II of this article describes the changes to conference

membership since 2010. Part III discusses recent conference

realignment litigation. Finally, Part IV discusses the impact of

conference realignment on student-athletes and the loss of

rivalries among longtime conference rivals.

II. THE FRENZY OF CONFERENCE REALIGNMENT FROM 2010 TO

PRESENT

In December 2009, the Big Ten Conference

(“Big Ten”)

announced its interest in conference expansion.

Such an

announcement led to rampant speculation and ultimately an

ongoing case of intercollegiate athletic musical chairs. The

following Division I institutions have changed their conference

affiliation since 2010:

Institution Former Conference New Conference

Air Force Academy

MWC MWC/CUSA Merger

Belmont Univ.

Atlantic Sun Ohio Valley

Boise State Univ.

WAC/MWC Big East (football)/WAC

Brigham Young Univ.

MWC WCC/Independent

Cal. St. Univ., Fresno

WAC MWC

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

The Big Ten Conference was formed in 1896. About the Conference, BIG TEN

CONFERENCE OFFICIAL ATHLETIC SITE, http://www.bigten.org/school-bio/big10-school-

bio.html.

Big Ten Statement on Expansion, BIG TEN CONFERENCE OFFICIAL ATHLETIC SITE

(Dec. 15, 2009), http://www.bigten.org/genrel/121509aaa.html.

C-USA Board to Talk Merger, ESPN OFFICIAL WEB SITE (FEB. 8, 2012),

http://espn.go.com/college-sports/story/_/id/7554045/conference-usa-board-discuss-

possibility-merging-mountain-west-source-says.

Belmont to Join OVC, COLLEGE SPORTS INFO. OFFICIAL WEB SITE (MAY 13, 2011)

http://collegesportsinfo.com/2011/05/13/belmont-to-join-ovc/.

Boise State Moves to Mountain West, ESPN OFFICIAL WEB SITE (June 11, 2010),

http://sports.espn.go.com/ncaa/news/story?id=5276064.

Brigham Young University competes in the West Coast Conference in all sports

other than football. The football team is an independent and is not affiliated with a

conference. Diamond Leung, BYU Set to Join the West Coast Conference, ESPN

OFFICIAL WEB SITE (June 30, 2010),

http://espn.go.com/blog/collegebasketballnation/post/_/id/32536/byu-set-to-join-the-

west-coast-conference.

Nevada, Fresno State move to MWC, ESPN OFFICIAL WEB SITE (Sep. 21, 2010),

http://sports.espn.go.com/ncaa/news/story?id=5474774.

2012] From Backyard Brawls to Cash Cows 255

Colorado State Univ.

MWC MWC/CUSA Merger

East Carolina Univ.

MWC MWC/CUSA Merger

Houston Baptist Univ.

Great West Southland

Marshall Univ.

Conference USA MWC/CUSA Merger

Naval Academy

Independent Big East (football)

Northern Kentucky Univ.

GLVC Atlantic Sun

Oral Roberts Univ.

The Summit League Southland

Rice Univ.

Conference USA MWC/CUSA Merger

San Diego State Univ.

MWC Big East

Southern Methodist Univ.

Conference USA Big East

Southern Utah Univ.

The Summit League Big Sky

Syracuse Univ.

Big East ACC

Temple Univ.

Atlantic 10 Big East

Texas A&M Univ.

Big 12 SEC

Texas Christian Univ.

MWC/Big East Big 12

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Supra note 28.

Id.

Houston Baptist to Join Southland on July 1, 2013, SOUTHLAND CONFERENCE

OFFICIAL WEB SITE (NOV. 21, 2011),

http://www.southland.org/ViewArticle.dbml?DB_OEM_ID=18400&ATCLID=205336618

Supra note 28.

Navy to Make Big East Its First Football Conference Home, BIG EAST

CONFERENCE OFFICIAL WEB SITE (JAN. 24, 2012),

http://www.bigeast.org/News/tabid/435/Article/230685/navy-to-make-big-east-its-first-

football-conference-home.aspx.

Northern Kentucky Joins Atlantic Sun, ATLANTIC SUN CONFERENCE OFFICIAL

WEB SITE (DEC. 8, 2011), http://www.atlanticsun.org/msoccer/news/2011-

12/5920/northern-kentucky-to-join-atlantic-sun/.

Oral Roberts to Join Southland Conference, SOUTHLAND CONFERENCE OFFICIAL

WEB SITE (OCT. 25, 2011),

http://www.southland.org/ViewArticle.dbml?DB_OEM_ID=18400&ATCLID=205322100

Supra note 28.

Big East Conference Introduces 5 New Schools, ESPN OFFICIAL WEB SITE (DEC.

8, 2011), http://espn.go.com/college-sports/story/_/id/7327683/big-east-conference-

introduces-boise-state-broncos-san-diego-state-aztecs-houston-cougars-smu-mustangs-

ucf-knights.

Id.

Southern Utah, North Dakota Join Big Sky, BIG SKY CONFERENCE OFFICIAL WEB

SITE (NOV. 1, 2010), http://www.bigskyconf.com/news/2010/11/1/GEN_1101105326.aspx.

See Darcy, infra, note 64.

Temple Joins Big East Conference, BIG EAST CONFERENCE OFFICIAL WEB SITE

(MAR. 7, 2012), http://www.bigeast.org/News/tabid/435/Article/232409/temple-

university-joins-big-east-conference.aspx.

Mitch Sherman, A&M Doing its Recruiting Homework, ESPN OFFICIAL WEB

SITE (Oct. 4, 2011), http://espn.go.com/college-

sports/recruiting/football/story/_/id/7058408/texas-looking-perfect-sec-player.

Texas Christian University joined the Big 12 Conference and left the Big East

Conference without playing a single game in the Big East Conference. Andrea Adelson,

TCU Leaves for Big 12 as Expected, ESPN OFFICIAL WEB SITE (Oct. 10, 2011),

http://espn.go.com/blog/bigeast/post/_/id/24805/tcu-leaves-for-big-12-as-expected.

256 MISSISSIPPI SPORTS LAW REVIEW [VOL. 1:2

Texas State Univ.

Southland WAC

Tulane Univ.

Conference USA MWC/CUSA Merger

Univ. of Ala., Birmingham

Conference USA MWC/CUSA Merger

Univ. of Central Florida

Conference USA Big East

Univ. of Colorado

Big 12 Pac 12

Univ. of Denver

Sun Belt WAC

Univ. of Hawaii

WAC MWC/Big West

Univ. of Houston

Conference USA Big East

Univ. of Memphis

Conference USA Big East

Univ. of Missouri

Big 12 SEC

Univ. of Nebraska

Big 12 Big 10

Univ. of Nebraska,Omaha

MIAA The Summit League

Univ. of Nevada

WAC MWC

Univ. of Nev., Las Vegas

MWC MWC/CUSA Merger

Univ. of New Mexico

MWC MWC/CUSA Merger

Univ. of North Dakota

Great West Big Sky

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Art Garcia, Texas-Arlington Expected to Join WAC, ESPN OFFICIAL WEB SITE

(July 14, 2011), http://espn.go.com/dallas/ncb/story/_/id/6766969/texas-arlington-

mavericks-expected-join-wac.

Supra note 28.

Id.

Supra note 41.

Colorado to Pac-10 in 2011 Still an Option, ESPN OFFICIAL WEB SITE (Aug. 19,

2010), http://sports.espn.go.com/ncaa/news/story?id=5474774.

Ted Miller, Sources: Three Teams to Join WAC, ESPN OFFICIAL WEB SITE, (Nov.

10, 2010), http://espn.go.com/blog/pac10/post/_/id/13361/colorado-to-pac-10-in-2011-still-

an-option.

Andy Katz, The University of Hawaii joined the Mountain West Conference in

football and the Big West Conference in all other sports. Hawaii Joins MWC, Big West

for 2012, ESPN OFFICIAL WEB SITE (Dec. 10, 2010),

http://sports.espn.go.com/ncaa/news/story?id=5907111.

Supra note 41.

University of Memphis Joins Big East Conference, BIG EAST CONFERENCE

OFFICIAL WEB SITE (FEB. 8, 2012),

http://www.bigeast.org/News/tabid/435/Article/231211/university-of-memphis-joins-big-

east-conference.aspx.

Edward Aschoff, Welcome to the SEC Missouri, ESPN OFFICIAL WEB SITE (Nov.

7, 2011), http://espn.go.com/blog/sec/post/_/id/32521/welcome-to-the-sec-missouri.

Adam Rittenberg, Nebraska to Celebrate B1G Arrival Friday, ESPN OFFICIAL

WEB SITE (June 30, 2011), http://espn.go.com/blog/bigten/post/_/id/28632/nebraska-to-

celebrate-b1g-arrival-friday.

University of Nebraska at Omaha Accepts Invitation to Join Summit League,

THE SUMMIT LEAGUE CONFERENCE OFFICIAL WEB SITE (MAR. 25, 2011),

http://www.thesummitleague.org/ViewArticle.dbml?DB_OEM_ID=3900&ATCLID=205

122920.

Nevada, Fresno State move to MWC, ESPN OFFICIAL WEB SITE (Aug. 19, 2010),

http://sports.espn.go.com/ncaa/news/story?id=5474774.

Supra note 28.

Id.

Supra note 43.

2012] From Backyard Brawls to Cash Cows 257

Univ. of Pittsburgh

Big East ACC

Univ. of Seattle

Independent WAC

Univ. of South Dakota

Great West The Summit League

Univ. of Southern Miss.

Conference USA MWC/CUSA Merger

Univ. of Texas, Arlington

Southland WAC

Univ. of Texas, El Paso

Conference USA MWC/CUSA Merger

Univ. of Tx., San Antonio

Southland WAC

Univ. of Tulsa

Conference USA MWC/CUSA Merger

Univ. of Utah

MWC Pac 12

Univ. of Wyoming

MWC MWC/CUSA Merger

West Virginia Univ.

Big East Big 12

There is further speculation other institutions will soon

change conferences. Because of the mass movement of

institutions, conferences at all levels of play are affected and are

seemingly fighting to remain in existence.

III. LEGAL CHALLENGES RELATING TO CONFERENCE

REALIGNMENT

A. Big East Litigation

Following the announcement that the University of Miami

(“Miami”), Virginia Polytechnic Institute and State University

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Kieran Darcy, Syracuse, Pitt Stuck in Big East Until 2014, ESPN OFFICIAL WEB

SITE (Sept. 20, 2011), http://espn.go.com/blog/new-york/colleges/post/_/id/2610/syracuse-

pitt-stuck-in-big-east-until-2014.

Diamond Leung, Seattle Looks Forward to WAC, ESPN OFFICIAL WEB SITE

(June 14, 2011), http://espn.go.com/blog/collegebasketballnation/post/_/id/31952/seattle-

looks-forward-to-the-wac.

South Dakota Accepts Invitation to Join Summit League, THE SUMMIT LEAGUE

CONFERENCE OFFICIAL WEB SITE (MAR. 25, 2011),

http://www.thesummitleague.org/ViewArticle.dbml?DB_OEM_ID=3900&ATCLID=372

0305.

Supra note 28.

Andy Katz, Sources: Three Teams to Join WAC, ESPN OFFICIAL WEB SITE (Nov.

10, 2010), http://sports.espn.go.com/ncaa/news/story?id=5789078.

Supra note 28.

Andy Katz, Sources: Three Teams to Join WAC, ESPN OFFICIAL WEB SITE (Nov.

10, 2010), http://sports.espn.go.com/ncaa/news/story?id=5789078.

Supra note 28.

Ted Miller, Happy Pac-12 Day!, ESPN OFFICIAL WEB SITE (July 1, 2010),

http://espn.go.com/blog/pac10/post/_/id/22870/happy-pac-12-day.

Supra note 28.

David Ubben, Big 12 Sees WVU as a Member in 2012, ESPN OFFICIAL WEB SITE

(Nov. 2, 2010), http://espn.go.com/blog/big12/post/_/id/37852/big-12-sees-wvu-as-a-

member-in-2012.

258 MISSISSIPPI SPORTS LAW REVIEW [VOL. 1:2

(“Virginia Tech”), and Boston College would leave the Big East

Conference (“Big East”) to join the Atlantic Coast Conference

(“ACC”), a flurry of the members of the Big East filed lawsuits and

countersuits.

The loss of these institutions placed the Big East in

a less than advantageous position, because these institutions were

the strongest football competitors in the conference.

Understandably, the University of Connecticut (“UConn”) filed

suit against Miami, Virginia Tech, Boston College, and the ACC

for, among other things, breach of contract and breach of fiduciary

duties.

Additionally, Boston College filed suit against the Big

East seeking a declaration of the proper interpretation of the

conference bylaws relating to the withdrawal notice and

withdrawal fee.

After years of dispute, the Big East added

several membership institutions to replace the departed

institutions, and the parties settled all of the pending lawsuits

against one another.

The departing institutions agreed to pay $5

million to settle all claims and agreed to schedule nine football

games against Big East competition from 2008 to 2012.

B. Western Athletic Conference v. California State

University, Fresno

Following California State University, Fresno State

University (“Fresno State”) and the University of Nevada’s

(“Nevada”) announcements that they intended to join the

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

The Atlantic Coast Conference was founded on May 8, 1953 with seven initial

members and currently has twelve member institutions. About the ACC, THE OFFICIAL

ATHLETIC SITE OF THE ATLANTIC COAST CONFERENCE, http://www.theacc.com/this-

is/acc-this-is.html?&rsrc=nav.

Conference Schedule Games as Part of Settlement, ESPN OFFICIAL WEB SITE

(May 3, 2005), http://sports.espn.go.com/ncaa/news/story?id=2052787.

Univ. of Conn. v. Univ. of Miami, Cause No. X07CV030081757S, 2003 Conn.

Super LEXIS 2745 (Oct. 10, 2003); Univ. of Conn. v. Atl. Coast Conf., Cause No.

X07CV030082695S, 2004 Conn. Super LEXIS 369 (Feb. 23, 2004).

The court granted Boston College’s motion for summary judgment and

determined that Boston College could withdraw from the Big East on July 1, 2005,

with the payment of a $1 million withdrawal fee, or before July 1, 2005, with the

payment of a $2 million withdrawal fee. Trustees of Boston Coll. v. Big E. Conf., Cause

No. 03-4818 BLS, 2004 Mass. Super LEXIS 298 *26-27 (Aug. 18, 2004).

W. Va. Univ. Bd. of Governors v. Big E. Conf., No. 11-C-695 at 4 (W. Va. Cir. Ct.

Oct. 31, 2011) [hereinafter WVU Complaint]. Complaint for Declaratory Judgment,

Breach of Contract, and Permanent Injunctive Relief.

Conferences Schedule Games as Part of Settlement, ESPN OFFICIAL WEB SITE

(May 3, 2005), http://sports.espn.go.com/ncaa/news/story?id=2052787.

2012] From Backyard Brawls to Cash Cows 259

Mountain West Conference

(“Mountain West”), the Western

Athletic Conference (“WAC”) filed suit seeking declaratory and

injunctive relief against Fresno State, Nevada, and the Mountain

West.

According to Section 7 of the WAC Bylaws,

[a]ny member may withdraw from the Conference by filing

with each of the other Members and the Commissioner of the

Conference, on or before July 1 of any year, an official notice

of withdrawal, in which event the withdrawal shall be

effective the following June 30. Any withdrawing Member

shall, however, play all approved athletic competitions

scheduled with the other Members in accordance with the

governing contract unless such competitions are waived by

written consent of the parties affected.

Fresno State and Nevada provided notice of withdrawal

subsequent to the June 30th deadline provided in the WAC

Bylaws. They also specifically provided notice of withdrawal on

August 20, 2010 and August 24, 2010;

however, on July 1, 2011,

both institutions expressed a desire to compete in the Mountain

West. The WAC argued the potential competition violated the

Bylaws’ terms.

The WAC asserted that Fresno State and Nevada’s defections

would cause great harm to its membership; therefore, it sought a

declaration that both institutions are bound by the WAC Bylaws

and must remain members of the WAC through June 30, 2012.

Additionally, the WAC argued that the conference and its

remaining members will suffer immediate irreparable injury for

the following reasons: 1) the incalculable and severe financial

injury to the WAC and its remaining institutions because their

departure places negotiations for media rights with ESPN in

jeopardy; 2) the impossibility of scheduling football games; 3) the

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

The Mountain West Conference started in 1999 and has celebrated three team

national championships and twenty-seven individual national championships since its

inception. This is the Mountain West, MOUNTAIN WEST CONFERENCE OFFICIAL

ATHLETIC SITE, http://www.themwc.com/about/mwc-about.html.

W. Athletic Conf. v. Cal. State Univ., Fresno, No. 10 CV-4281 (Colo. Dist. Ct.,

Sept. 9, 2010) [hereinafter WAC Complaint].

Id. at 2.

Id. at 2-3.

Id.

Id. at 3.

260 MISSISSIPPI SPORTS LAW REVIEW [VOL. 1:2

irreparable injury to the status of the WAC to receive revenue

distribution from the BCS;

4) the irreparable injury to the

conference’s national stature; 5) the premature departure of

Fresno State and Nevada would irreparably interfere with the

process and prospects of finding acceptable replacement

institutions; and 6) the departure of Fresno State and Nevada

would jeopardize the prospects of the WAC fulfilling its football

bowl obligations.

As a result, the WAC sought injunctive relief to

prohibit Fresno State, Nevada, and the Mountain West “from

scheduling any athletic contests that will interfere with the

scheduling of [WAC] games . . . through the 2011-13 athletic

seasons.”

Shortly after filing, the parties resolved the dispute and

entered into a settlement agreement.

According to the terms of

the agreement, Fresno State and Nevada each agreed to pay the

WAC $900,000 for a combined total of $1.8 million.

In exchange,

Fresno State and Nevada agreed to compete in the WAC through

June 30, 2012, and the WAC agreed to release its claims against

both institutions.

C. West Virginia University v. The Big East Conference

On October 31, 2011, West Virginia University (“WVU”), by

and through the West Virginia Board of Governors, filed suit

against the Big East

seeking declaratory relief, permanent

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

The BCS has served as a five game showcase of college football designed to

ensure the top two rated teams in the country meet for a national championship game

and to create exciting matchups among eight other highly competitive teams. Michael

A. McCann, Antitrust, Governance, and Postseason College Football, 52 B.C. L. REV.

517, 517-18 (2011).

See WAC Complaint, supra, note 82 at 4.

Id. at 5.

Id. Settlement Agreement and Release of Claims, WACSPORTS.COM,

http://www.wacsports.com/pdf8/719352.pdf.

Id. at 2 § 3.

Id. at 1-4, § 2, 10, 11.

The Big East Conference was formed on May 31, 1979, when seven member

institutions, Providence College, Georgetown University, St. John’s University,

Syracuse University, Seton Hall University, University of Connecticut, and Boston

College, formed an alliance for the purposes of developing an intercollegiate conference.

Since that time, the Big East Conference member institutions have won twenty-eight

national championships in six different sports and one hundred twenty-eight student-

athletes have won individual national titles. The Big East Conference is headquartered

in Providence, Rhode Island and administers to more than 5,500 student-athletes.

2012] From Backyard Brawls to Cash Cows 261

injunctive relief, and damages for breach of contract.

WVU

joined the Big East as a football member only in 1991 for its

inaugural football season and subsequently joined as a full

member in all sports in 1995.

For the following eight years, the

Big East had seven institutions that competed in NCAA Division I

football and seven that did not compete in Division I football.

According to WVU, this arrangement led to “instability in the

conference” and caused Miami, Virginia Tech, and Boston College

to withdraw from the Big East in order to join the ACC.

Following the defection of these institutions to the ACC, the Big

East invited the University of Louisville, the University of

Cincinnati, and the University of South Florida to join as full

members competing in NCAA Division I football. The Big East

also invited DePaul University and Marquette University to join

as full members not competing in NCAA Division I football.

such, the Big East reorganized with sixteen member institutions

including eight institutions competing in NCAA Division I football

and eight non-football institutions.

In March 2008, the Big East members agreed to amend the

conference bylaws entitled the Big East Conference Amended and

Restated Bylaws (“Big East Bylaws”).

100

According to WVU, the

critical purpose of the Big East is to “[e]nhance the opportunities

for participation in, and the level of competition of, men’s and

women’s intercollegiate athletics on an equitable basis[.]”

101

Among other things, the Big East Bylaws provide for various

decisions to be made by the member institution leaders including

matters relating to football members. According to the Big East

Bylaws, Big East members that do not offer football are permitted

to vote on football-related matters.

102

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

About the Big East, BIG EAST CONFERENCE OFFICIAL WEB SITE,

http://www.bigeast.org/AbouttheBIGEAST.aspx

See WVU Complaint, supra, note 79 at 1.

Id. at 3.

Id.

Id. at 3.

Id. at 4.

100

Id.

101

Id.

102

Id. at 4-5.

262 MISSISSIPPI SPORTS LAW REVIEW [VOL. 1:2

On October 28, 2011, WVU accepted an invitation to join the

Big 12.

103

The Big East Bylaws, provide that a withdrawing

member is 1) required to present written notice of its intent to

withdraw from the conference; 2) specify an effective date of

withdrawal, which must be at least twenty-seven months after the

date that the withdrawal notice is received by the commissioner;

and 3) pay a withdrawal fee to the Big East in the amount of $5

million.

104

The Big East maintained that WVU is not eligible to

join the Big 12 until July 1, 2014.

105

WVU, however, stated it “had

no choice but to accept the Big XII’s offer” because the conference

had “denigrated into a non-major football conference” in light of

the defection of Texas Christian University (before playing a

game), Syracuse University, the University of Pittsburgh, and

potentially UConn.

106

As a result, WVU stated the denigration of the conference is

“a direct and proximate result of ineffective leadership and breach

of fiduciary duties to the football schools by the Big East

Conference and its commissioner.”

107

WVU also explained that the

Big East and its commissioner

108

“failed to take proactive

measures to maintain, let alone enhance, the level of competition

for the Big East football schools” despite the Big East football

institutions advocating for measures to be taken by the Big East

and its commissioner.

109

Additionally, WVU argued the

commissioner failed to protect the football playing institutions,

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

103

Letter from James P. Clements, Ph.D., President, West Virginia University, to

John M. Marinatto, Commissioner. The Big East Conference (Nov. 1, 2011) (on file with

author), available at http://www.kansan.com/news/2011/nov/01/west-virginia-takes-

legal-action-get-out-big-east/; West Virginia University to Join Big 12 Conference, BIG

12 CONFERENCE OFFICIAL WEB SITE, (Oct. 28, 2011),

http://www.big12sports.com/ViewArticle.dbml?DB_OEM_ID=10410&ATCLID=2053233

83.

104

See WVU Complaint, supra, note 79 at 5.

105

Andrea Adelson, W. Virginia Files Lawsuit Against Big East, ESPN.COM (Oct.

31, 2011), http://espn.go.com/college-sports/story/_/id/7175251/west-virginia-files-civil-

lawsuit-big-east-places-blame-commissioner-john-marinatto.

106

See WVU Complaint, supra, note 79 at 5-6; see also Andy Katz & Joe Schad,

UConn Eyes ACC Move, ESPN.COM, (Sept. 18, 2011), http://espn.go.com/college-

sports/story/_/id/6989031/uconn-huskies-aggressively-seeking-acc-move-source-says.

107

See WVU Complaint, supra, note 79 at 6-8.

108

John Marinatto is the commissioner of the Big East Conference. Conference

Staff, BIG EAST CONFERENCE OFFICIAL WEB SITE,

http://bigeast.org/AbouttheBIGEAST/ConferenceStaff.aspx.

109

See WVU Complaint, supra, note 79 at 6-7.

2012] From Backyard Brawls to Cash Cows 263

but took direct measures to protect the non-football playing

institutions.

110

Therefore, WVU filed suit seeking a declaration that the Big

East Bylaws are void and have no effect as between the parties, or

in the alternative, declaring that the Big East accepted WVU’s

proposal or offer to immediately withdraw from the conference.

111

Additionally, WVU argued that the twenty-seven month notice

period provided for in the Big East Bylaws is an unreasonable

restraint on trade and, thus, the Big East should be enjoined from

enforcing such provision.

112

Finally, WVU stated the “actions and

inactions of the Big East and its Commissioner” constituted a

material breach of their agreement, which thereby excuses WVU

from performance.

113

Only five days later, the Big East returned the favor and

sued WVU.

114

The Big East argued that WVU was a party to and

entered into three contracts relating to televising Big East football

and men’s and women’s basketball contests.

115

Each of these

contracts run through the 2013 seasons. As a result of the

defection of WVU, the Big East argued that such action will cause

great harm to the Big East and its member institutions and will

potentially violate the terms of these agreements.

116

Additionally,

the Big East noted that WVU’s desire to compete in the Big 12 on

or about July 1, 2012, violates Article 11 of the Big East Bylaws,

which call for a twenty-seven month withdrawal period.

117

Because of the alleged breaches, the Big East claimed that its

member institutions are irreparably harmed, since, it will be

“impossible to reschedule all of the Conference athletic contests in

a fair and equitable manner. . . . [and] will likely incur [additional]

costs and unquantifiable injuries.”

118

Therefore, the Big East

seeks monetary damages (including court costs and attorneys’

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

110

Id. at 7; see also John Durand, Big East Appears Left Behind by Media Influence

that Created It, SPORTS BUS. J. 13 (Oct. 17-23, 2011) (stating Big East Commissioner

John Marinatto lost support among the conference membership).

111

See WVU Complaint, supra, note 79 at 9-10.

112

Id. at 12-13.

113

Id. at 10-12.

114

Big E. Conf. v. W. Va Univ., No. PB-11-6391 (R.I. Sup. Ct. Nov. 4, 2011)

[hereinafter Big East Complaint].

115

Id. at 4-6.

116

Id.

117

Id. at 7-8.

118

Id. at 9.

264 MISSISSIPPI SPORTS LAW REVIEW [VOL. 1:2

fees) for the purported breach of Article 11 of the Big East Bylaws

and injunctive relief seeking to obligate WVU “to participate fully

in all scheduled Conference athletic events during the 2012-13

and 2013-14 seasons [i.e., through and including June 30, 2014].”

119

According to Section 11.02(b) of the Big East Bylaws, “if a

Member attempts or purports to withdraw from the Conference

without complying to Section 11.02 (withdrawal procedures), the

Conference shall be entitled to seek and obtain equitable relief.”

120

Thus, the parties to the Bylaws agree there is no adequate remedy

at law and irreparable harm would be caused by failing to comply

with the withdrawal provisions, which gives rise to injunctive

relief.

121

On February 13, 2012, the parties entered into a settlement

agreement that allows WVU to withdraw from the Big East on

June 30, 2012 and enter the Big 12 on July 1, 2012. In return,

WVU agreed to pay the Big East $20 million, the Big 12

contributed a portion of the settlement payment, and agreed to a

consent judgment that states the Big East Bylaws are “valid and

enforceable.”

122

D. Baylor University v. Texas A&M University and

Southeastern Conference: It Did Not Happen, But What

If…

The announcements by the University of Nebraska

(“Nebraska”) and the University of Colorado (“Colorado”) that they

were exiting the Big 12 to enter the Big Ten and Pac-12

Conference, respectively, sent shockwaves throughout the country

and specifically to the institutions in the Big 12. Still, the

remaining members of the Big 12 agreed to remain partners to

keep the conference intact.

123

Thus, Nebraska and Colorado were

thought to be the only defectors and paid exit fees of $9.25 million

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

119

Id. at 9-10.

120

THE BIG EAST CONFERENCE AM. & RESTATED BYLAWS, art. XI, § 11.02(b).

121

Id.

122

Settlement Agreement, WVGAZETTE.COM,

http://www.wvgazette.com/mediafiles/document/2012/02/15/BigEast-SettleHickman_

I120215124107.pdf.

123

Big 12 to Stay Together as a 10-Team League, AOL OFFICIAL WEB SITE (June 14,

2010), http://aol.sportingnews.com/ncaa-football/story/2010-06-14/texas-turns-down-

pac-10s-invitation.

2012] From Backyard Brawls to Cash Cows 265

and $6.86 million,

124

respectively, to leave the conference to

compete in their new conferences in 2011.

125

Unfortunately, the

talk of realignment did not conclude with Nebraska and Colorado

leaving for new conference affiliations. In September 2011, Texas

A&M announced its admission to the SEC after initially being

“rejected” by the conference.

126

In what appears as a legal

maneuver, the SEC accepted Texas A&M for membership shortly

after rejecting its initial bid.

127

As a result, Baylor made its

desires known to all those listening that it would sue Texas A&M

and the SEC.

128

E. Navigating Texas Sovereign Immunity Law if Baylor

Brought Suit Against Texas A&M

Texas is one of only four states that consistently uphold

sovereign immunity in the context of contract disputes.

129

The

Texas Supreme Court has held that the concept of sovereign

immunity embraces two principles: (1) immunity from suit; and

(2) immunity from liability, which are separate and distinct.

130

Immunity from suit bars an action against the state unless the

state expressly consents to the suit.

131

In contrast, immunity from

liability protects the state from judgment even if the legislature

has expressly consented to the suit.

132

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

124

Such amounts were negotiated sums to fulfill each institutions obligation under

Big 12 Conference Bylaws. BIG 12 CONFERENCE BYLAWS §§ 3.1-3.3.

125

David Briggs, The Cost of Walking Away? It’s Negotiable, COLUMBIA TRIB. (Oct.

14, 2011), http://www.columbiatribune.com/news/2011/oct/14/the-cost-of-walking-away-

its-negotiable/.

126

SEC Nixes Talk About Expansion, for Now, FOX SPORTS OFFICIAL WEB SITE

(Aug. 15, 2011), http://msn.foxsports.com/collegefootball/story/Southeastern-

Conference-nixes-talk-about-expansion-including-Texas-A%26M-081411.

127

Andy Katz & Joe Schad, Big 12 Line Up Against A&M, ESPN SPORTS OFFICIAL

WEB SITE (Sept. 8, 2011), http://espn.go.com/college-sports/story/_/id/6939017/texas-

aggies-accepted-sec-legal-threat-delays-move.

128

Gil LeBreton, Baylor Can File Suit, But History is on Texas A&M’s Side, FORT

WORTH STAR TELEGRAM, (Sept. 8, 2011), http://www.star-

telegram.com/2011/09/08/3349177/baylor-can-file-suit-but-history.html.

129

L. Katherin Cunningham & Tara D. Pearce, Contracting with the State: The

Daring Five – The Achilles’ Heel of Sovereign Immunity?, 31 ST. MARY’S UNIV. L.J. 255,

274 n. 99 (1999).

130

Gen. Serv. Comm’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 594 (Tex.

2001).

131

Tex. A&M Univ.-Kingsville v. Lawson, 87 S.W.3d 518, 520-21 (Tex. 2001).

132

Id.

266 MISSISSIPPI SPORTS LAW REVIEW [VOL. 1:2

Furthermore, a state is liable for contracts made for its

benefit as if it were a private person.

133

Consequently, when the

state contracts with private citizens, it waives its immunity from

liability.

134

In Federal Sign v. Texas Southern University, the

Texas Supreme Court reaffirmed the principle that the State of

Texas, its agencies, and its officials do not waive immunity to suit

by merely entering into a contract with a private entity or

person;

135

however, the Court restricted its holding to the facts of

the case before it and expressly warned:

We hasten to observe that neither this case nor the ones on

which it relies should be read too broadly. We do not attempt

to decide this issue in any other circumstances other than the

one before us today. There may be other circumstances where

the state may waive its immunity by conduct other than

simply executing a contract so that it is not always immune

from suit when it contracts.

136

In a concurring opinion, Justice Hecht, joined by three other

justices, all of whom joined the six-member majority opinion,

restricted the holding to its facts and specifically pointed out that

the decision did not apply to debt obligations such as bonds,

because the contract in question dealt exclusively with goods and

services.

137

In addition, the concurring opinion posed hypotheticals

regarding when a party had tendered performance to the state,

fully performed services on state property, or delivered goods that

were accepted by the state, and concluded that the hypotheticals

were not decided by the Federal Sign opinion.

138

The concurring

opinion emphasized and warned that the state may waive

immunity to suit by conduct other than simply executing a

contract. It concluded by stating “[i]n short, today’s decision does

not hold that the state is always immune from suit for breach of

contract absent legislative consent; it holds only that the mere

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

133

Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997).

134

Id.at 405-406; State v. Elliott, 212 S.W. 695, 698 (Tex. Civ. App.—Galveston

1919, ref.).

135

Fed. Sign, 951 S.W.2d at 406-408.

136

Id. n.1. at 408 .

137

Id. at 413 (Hecht, J., concurring).

138

Id.

2012] From Backyard Brawls to Cash Cows 267

execution of a contract for goods and services, without more, does

not waive immunity from suit.”

139

The Texas Supreme Court then held that the waiver-by-

conduct exception to sovereign immunity could not be judicially

adopted in light of the existence of Texas Civil Practice and

Remedies Code Chapter 107 and Texas Government Code Chapter

2260.

140

Also, the court held that courts must defer to the

legislature on whether to waive sovereign immunity.

141

Consequently, the court concluded that the only means of

redressing breach of contract claims against the state is with

legislative approval;

142

therefore, unless a particular statute

confers consent, a person cannot sue the state for breach of

contract without legislative consent under Texas Civil Practice

and Remedies Code Chapter 107 and Texas Government Code

Chapter 2260 (hereinafter Chapter 2260). Thus, compliance with

the notice and claim procedures of Chapter 2260 is a mandatory

prerequisite before a person can petition to sue the state.

143

One interpretation of this decision could lead to the

conclusion that the Texas Supreme Court rejected a waiver-by-

conduct theory as to any contract with the State of Texas. But, the

court’s analysis was based largely on that all the appeals before it

were within the coverage of Texas Civil Practice and Remedies

Code Chapter 107 and Chapter 2260. The court concluded that the

legislature had foreclosed the possibility for a waiver-by-conduct

exception in breach of contract claims covered by the statutory

provisions.

144

In 2002, the Texas Supreme Court decided a case that at first

appeared to bar the waiver-by-conduct theory, but at the same

time maintains its potential validity.

145

In Texas Natural Resource

Conservation Commission v. IT-Davy, IT-Davy’s contract was not

subject to the provisions of Chapter 2260, but was clearly within

the provisions of Texas Civil Practice and Remedies Code Chapter

107.

146

IT-Davy alleged it had fully performed the contract and

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

139

Id. at 412-413 (Hecht, J., concurring).

140

Gen. Serv. Comm’n, 39 S.W.3d at 595.

141

Id.

142

Id.

143

Id. at 595-96.

144

Id. at 597-600.

145

Tex. Nat. Res. Conserv. Comm’n v. IT-Davy, 74 S.W.3d 849, 853-55 (Tex. 2002).

146

Id.

268 MISSISSIPPI SPORTS LAW REVIEW [VOL. 1:2

that the Texas Natural Resource Conversation Commission had

accepted the full performance.

147

These facts were assumed to be

true because the case was before the court on a petition to review

the court of appeals’ ruling on an interlocutory appeal from the

trial court’s denial of a plea to the jurisdiction based on sovereign

immunity.

148

Furthermore, the Texas Supreme Court reaffirmed its

holding in General Services Commission v. Little-Tex that only the

legislature can waive or abrogate its sovereign immunity, and the

court refused to recognize a waiver-by-conduct theory.

149

The

concurring justices concluded that the court could, however, still

recognize waiver other than by express consent or statutory

authorization in future cases that involve acknowledged

contractual compliance and a refusal to pay the contract price.

150

The Texas Supreme Court appears to indicate in multiple

cases that the waiver-by-conduct doctrine is no longer a viable

argument; however, each opinion is left with a caveat of possibility

in a certain case.

151

However, the court has never found that a

governmental body (including an institution of higher learning)

has waived sovereign immunity by entering into a contractual

agreement. Therefore, a plaintiff is left to rely on cases from the

courts of appeals, which by and large fall on Texas Southern

University v. State Street Bank & Trust Company.

152

In State

Street Bank, the Texas Court of Appeals held that government

officials lured the party into entering into a contractual agreement

with false promises, and then disclaimed any obligation under the

contract; therefore, Texas Southern University waived sovereign

immunity based on its conduct.

153

Coach Mike Leach, whose lawsuit against Texas Tech

University relating to his termination was recently denied review

of his wavier-by-conduct argument by the Texas Supreme Court,

cited Texas Southern University as authority for the proposition

that a state institution can waive sovereign immunity by conduct,

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

147

Id.

148

Id. at 853-55 (Hecht, J., concurring).

149

Id. at 853-54.; Gen. Serv. Comm’n, 39 S.W.3d at 595.

150

IT-Davy, 74 S.W.3d at 861-63 (Hecht, J., concurring).

151

Id.; Fed. Sign, 951 S.W.2d at 412-13.

152

Tex. S. Univ. v. State St. Bank & Trust Co., 212 S.W.3d 893, 907-908 (Tex.

App.—Houston [1

Dist.] 2007, pet. den.).

153

Id. at 908.

2012] From Backyard Brawls to Cash Cows 269

but the Amarillo Court of Appeals failed to follow his analysis and

held that the Texas Supreme Court has not acknowledged a single

case that has allowed waiver-by-conduct.

154

As such, Texas Tech

University’s appeal in favor of sovereign immunity was granted

and review was denied by the Texas Supreme Court.

155

According

to a long line of case law that simply has failed to adopt a single

case that would grant sovereign immunity based on the doctrine of

waiver-by-conduct, Texas A&M would more than likely be

successful in defending itself against a breach of contract cause of

action.

Baylor would not be precluded from seeking relief by

equitable or declaratory means.

156

Thus, Baylor could maintain an

action to enjoin Texas A&M, but would not be able to seek

monetary damages. For example, Baylor could argue that the

defection of Texas A&M would cause 1) scheduling difficulties

with other member institutions; 2) parties to media rights

agreements would terminate their agreements with the Big 12

and member institutions; 3) the national reputation of the Big 12

would be diminished; and 4) the Big 12 is unable to attract other

acceptable replacements.

F. Potential Claims against the Southeastern Conference

The SEC worked diligently to give the appearance that it did

not attempt to procure Texas A&M for admission into the

conference.

157

In fact, the SEC initially denied Texas A&M’s

request for admission only to reverse the decision in subsequent

weeks.

158

Clearly, such maneuvers were created to avoid potential

legal claims in light of Baylor’s threats of litigation. Specifically,

Baylor would likely have sought monetary damages, if suit was

filed, pursuant to a cause of action for tortious interference with a

contract. Unlike Texas A&M, the SEC, a private company, will not

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

154

Leach v. Tex. Tech Univ., 335 S.W.3d 386, 400-01 (Tex. App.—Amarillo 2011,

pet. denied).

155

Id.

156

City of Elsa v. M.A.L., 226 S.W.3d 390, 392 (Tex. 2007); City of Beaumont v.

Bouillion, 896 S.W.2d 143, 149 (Tex. 1995); Leach, 335 S.W.3d at 399; City of Arlington

v. Randall, 301 S.W.3d 896, 906-07 (Tex. App.—Fort Worth 2009, pet. filed).

157

SEC Nixes Talk About Expansion, for Now, supra, note 97.

158

Katz & Schad, supra note 98.

270 MISSISSIPPI SPORTS LAW REVIEW [VOL. 1:2

have a sovereign immunity defense and, thus, would have to

defend the merits of the claim.

The elements for a tortious interference with a contract cause

of action are: (1) the existence of a contract subject to interference;

(2) the occurrence of an act of interference that was willful and

intentional; (3) the act was a proximate cause of the plaintiff’s

damage; and (4) actual damage or loss occurred.

159

In reviewing a claim of this kind, the first question will be

how did the relationship originate? During the domino effect

created by the Big Ten’s announcement that it was considering

conference expansion, SEC Commissioner Mike Slive contacted

the Big 12. Commissioner Slive informed the Big 12 that the SEC

would make advances to Texas A&M and Oklahoma to determine

whether those institutions would consider joining the SEC.

160

Although both Texas A&M and Oklahoma did not seek admission

to the SEC at that time, Commissioner Slive continued to discuss

and approach Texas A&M about joining the SEC including a

discussion at the 2011 Cotton Bowl in Dallas, Texas.

161

Indeed,

when the Board of Regents of Texas A&M provided approval for

President Bowen Loftin to gain admission to the SEC,

Commissioner Slive slyly stated, “I believe the SEC would

favorably consider that.”

162

Thus, the genesis of the relationship

came at the insistence of the SEC with the intent of coaxing Texas

A&M to join the SEC.

A move by Texas A&M from the Big 12 to the SEC will have

large ramifications on a national scale including the possible

dissolution of the Big 12. As such, Texas A&M’s withdrawal from

the Big 12 could have affected media rights agreements that could

have substantially reduced the revenue distributed to Big 12

member institutions like Baylor. In fact, Baylor may not be able to

gain acceptance into another conference that would provide for

revenue at or near the level of the Big 12. As such, the overtures

made by the SEC to Texas A&M constitute interference with

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

159

Browning-Ferris Indus. v. Reyna, 865 S.W.2d 925, 926 (Tex. 1993); Victoria

Bank & Trust Co.v. Brady, 811 S.W.2d 931, 939 (Tex. 1991).

160

Interview with Anonymous Source, Dallas, Texas (Oct. 15, 2011).

161

Id.

162

Paul Burka, The End: How Did It Happen? What Does it Mean?, TEXAS

MONTHLY, Nov. 2011, at 116.

2012] From Backyard Brawls to Cash Cows 271

existing contracts and likely the proximate cause for any damages

that arise.

The more difficult element at this stage is whether Baylor

has been damaged by the SEC’s conduct. If the Big 12 stays intact,

as it appears it will, and the media rights holders do not seek to

terminate or otherwise renegotiate the terms of existing media

rights agreements, then Baylor’s damages are substantially

reduced. Currently, it appears that the Big 12 will remain a viable

conference on a national scale. However, if the Big 12 dissolves or

media rights holders seek to alter the revenue stream provided in

accordance with negotiated agreements, then Baylor will likely

have a multi-million dollar claim for damages.

IV. WHAT IS THE AFFECT OF CONFERENCE REALIGNMENT?

The desire to win at virtually any cost and to attract elite

athletes combined with the increases in public interest in

intercollegiate athletics, in a consumer sense, has led to a highly

commercialized world of intercollegiate athletics that focuses more

heavily on revenue than anything else.

163

The former

commissioner of the Big East, Mike Tranghese, summarized

conference realignment as follows:

I think college football has just taken control of everything.

All these moves are about football and money and greed . . .

What we have are little fiefdoms who have conference names

and we’re living in a society where it’s almost like its Wall

Street. Greed is good and I’m Gordon Gecko.

164

Comments like these require introspective questions like what are

the effects of realignment and what is the actual focus of

intercollegiate athletics?

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163

Rodney K. Smith, The National Collegiate Athletic Association’s Death Penalty:

How Educators Punish Themselves and Others, 62 IND. L.J. 985, 991 (1987).

164

Big 12 Mulling Big East Merger, ESPN SPORTS OFFICIAL WEB SITE (Sept. 19,

2011), http://espn.go.com/college-football/story/_/id/6993604/big-east-big-12-talking-

possible-merger-sources-say.

272 MISSISSIPPI SPORTS LAW REVIEW [VOL. 1:2

A. What about the Student-Athletes?

For years, the NCAA has fought the notion that major college

football is a breeding ground for the National Football League.

165

The NCAA commonly points to the academic pursuits of student-

athletes and concludes that it offers a product that is

distinguishable from professional sports.

166

Currently,

intercollegiate athletics is facing the most volatile period ever

observed. There are no shortages of critics that bemoan the

treatment of student-athletes. In fact, Michael Lewis, the author

of The Blind Side: Evolution of a Game, joined the debate in 2007

when he drafted an opinion column for the New York Times and

stated:

Everyone associated with [intercollegiate athletics] is getting

rich except the people whose labor creates the value. At this

moment there are thousands of big-time college football

players, many of whom are black and poor. They perform for

the intense pleasure of millions of rabid college football fans,

many of whom are rich and white . . . . The poor black kids

put up with it because they find it all but impossible to

pursue N.F.L. careers unless they play at least three years in

college. Less than one percent actually sign professional

football contracts and, of those, an infinitesimal fraction ever

make serious money. But their hope is eternal, and their

ignorance exploitable. Put that way the arrangement sounds

like simple theft; but up close, inside the university, it

apparently feels like high principle.

167

Also, former shoe company executive, Sonny Vaccaro, has

made it his personal mission to rid intercollegiate athletics of

exploitation and has stated “young kids [are] misused in the

system of the NCAA.”

168

Similarly, United States Congressman

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165

Banks v. Nat’l Collegiate Athletic Ass’n, 977 F.2d 1081, 1090 (7th Cir. 1992).

166

Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of the Univ. of Okla., 468 U.S.

85, 120 (1984).

167

Michael Lewis, Serfs of the Turf, N.Y. TIMES (Nov. 11, 2007),

http://www.nytimes.com/2007/11/11/opinion/11lewis.html.

168

Lewis Rice, At HLS Symposium, the “Godfather of Grassroots Basketball”

Decries Exploitation of College Athletes (Apr. 7, 2011),

http://www.law.harvard.edu/news/spotlight/student-pursuits/sonn-vacarro-sports-law-

symposium.html. (Mr. Vacarro has advocated extensively on behalf of student-athletes

and has indicated that third-party commercial entities have to pay endorsement fees to

2012] From Backyard Brawls to Cash Cows 273

Bobby Rush likened the NCAA to “Al Capone” and to “the

Mafia.”

169

Yet, the most provocative viewpoint on intercollegiate

athletics came from historian Taylor Branch in which he called

the NCAA a “classical cartel” that has “an unmistakable whiff of

the plantation.”

170

Indeed, Mr. Branch stated “[c]ollege sports, as

overseen by the N.C.A.A., is a system imposed by well-meaning

paternalists and rationalized with hoary sentiments about caring

for the well-being of the colonized.”

171

Student-athletes are fighting for their share of the revenue

created by major college football and major college basketball

while studies argue that athletic scholarships place student-

athletes at poverty levels.

172

These student-athletes have even

petitioned the NCAA for a slice of the television revenue created

by their play.

173

These overtures have been met with negativity

and no prospect of becoming a reality, but that has not stopped the

media from devising ways to compensate student-athletes for their

play.

174

Yet, member institutions require student-athletes to

travel thousands of miles to play a single conference game in light

of the changing geography of the modern conference.

175

NCAA

President Mark Emmert questioned this practice and stated

“[n]obody was talking about what this is going to do for student-

athletes or intercollegiate athletics programs. It was all about let’s

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institutions due to NCAA rules, but they really want the student-athletes. Telephone

Interview with Sonny Vacarro (Apr. 13, 2011).

169

Bobby Rush Compares NCAA to Mafia, ESPN SPORTS OFFICIAL WEB SITE (Nov.

2, 2011), http://espn.go.com/college-sports/story/_/id/7177833/illinois-congressman-

bobby-rush-compares-ncaa-mafia.

170

Taylor Branch, The Shame of College Sports, THE ATLANTIC (Oct. 2011),

http://www.theatlantic.com/magazine/print/2011/10/the-shame-of-college-sports/8643.

171

Id.

172

Ramogi Huma & Ellen J. Staurowsky, Ph.D., The Price of Poverty in Big Time

College Sports, NCPANOW.ORG, (Sep. 2011); Report Makes Case for Paying Players,

ESPN SPORTS OFFICIAL WEB SITE (Sept. 12, 2011), http://espn.go.com/college-

sports/story/_/id/6962151/advocacy-group-says-top-college-athletes-worth-six-figures.

173

Petition Seeks Slice of College TV Money, ESPN SPORTS OFFICIAL WEB SITE (Oct.

24, 2011), http://espn.go.com/college-sports/story/_/id/7145251/college-athletes-seeking-

cut-television-revenue-cover-school-costs.

174

George Dohrmann, Pay for Play, SPORTS ILLUSTRATED, Nov. 7, 2011, at 52-59.

175

If Brigham Young University accepts conference admission from the Big East

Conference, it would require student-athletes to travel approximately 2,500 miles for

some conference games. Big East Focused on Adding BYU Cougars, ESPN SPORTS

OFFICIAL WEB SITE (Nov. 16 2011), http://espn.go.com/college-

football/story/_/id/7244078/big-east-conference-focused-adding-byu-cougars.

274 MISSISSIPPI SPORTS LAW REVIEW [VOL. 1:2

make a deal.”

176

University of Texas head football coach Mack

Brown had a similar take on conference realignment and stated

“[a]s much as we talk about money, as much as we talk about

college football . . . we better go back and make sure that we’re

taking care of the players . . . .”

177

By all means, revenue in intercollegiate athletics is

important and vital to the success of student-athletes and

institutions of higher learning. It is important to provide

opportunities to student-athletes and to the student body at large

to share in high-level intercollegiate competition. Still, in the

quest to secure the largest media rights agreements and best

coaches, the powers of intercollegiate athletics forget about the

welfare of student-athletes. Also, the frequent travel across the

country to compete throughout the week hinders the academic

aspects of being a student-athlete. Although athletic directors,

conference commissioners, and executives at the NCAA discuss

academics as often as they mention athletic endeavors, the facts

support an ever increasing athletic pressure and a time

commitment that substantially exceeds the twenty-hour weekly

maximum prescribed by the NCAA.

178

In sum, there are two ways to account for the increased

commercialization of intercollegiate athletics: (1) regulate

commercialization and place an emphasis on being a student

before being an athlete; or (2) allow student-athletes to seek

compensation whether through the institution or third-parties. If

intercollegiate athletics continues to grow commercially, it is only

common sense that student-athletes will continue to voice their

desire to be compensated. Student-athletes read the nearly daily

headlines that discuss conference movement among institutions,

lucrative bowl packages, and television rights agreements.

Conference realignment is akin to a professional sports

franchise seeking to gain a larger fan base in a new territory.

Intercollegiate athletics is supposed to be different and student-

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176

Mark Emmert Tries to See Beyond Money, ESPN SPORTS OFFICIAL WEB SITE

(Sep. 28, 2011), http://espn.go.com/college-sports/story/_/id/7032299/ncaa-prez-asks-

schools-consider-more-money.

177

OU Authorizes Prez to Act on Pac-12, ESPN SPORTS OFFICIAL WEB SITE (Sept.

20, 2011), http://espn.go.com/college-sports/story/_/id/6992952/regents-oklahoma-

sooners-texas-longhorns-ok-presidents-act-pac-12.

178

Student-athlete participation shall be limited to a maximum of four hours per

day and twenty hours per week. 2011-2012 NCAA DIVISION I MANUAL § 17.1.6.1 (2011).

2012] From Backyard Brawls to Cash Cows 275

athletes are supposed to be pursuing avocation rather than a

vocation.

179

Treating student-athletes as a pawn in a greater

scheme is creating an ever-increasing distaste for the

establishment of intercollegiate athletics. It is time to return the

attention to the student-athlete and allow them to have a voice in

conference realignment. Unfortunately, the designated individuals

that are supposed to be looking out for student-athletes’ better

interests have failed to account for the realities of being a modern

day student-athlete.

B. What Happened to the Rivalries?

Rivalries in college sports are like no other in all of sports.

Top rivalries have been the subject of fight songs, books, and

coffee shop debates. To see a stadium split completely in half with

one side of the stadium wearing one color and the other side

wearing another color is something only synonymous with

intercollegiate athletics. Despite rivalries being a fabric of

American culture, conference realignment threatens to rob fans,

alumni, and student-athletes of the opportunity to rejoice in the

sanctity of state versus state and school versus school.

It is widely reported that coaches and administrators have

renounced the importance of the some of the most revered

rivalries in all of sports. In college sports, rivalries have names

like the Red River Rivalry,

180

the Border Showdown,

181

and the

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179

“Student-athletes shall be amateurs in an intercollegiate sport, and their

participation should be motivated primarily by education and by the physical, mental

and social benefits to be derived. Student participation in intercollegiate athletics is an

avocation, and student-athletes should be protected from exploitation by professional

and commercial enterprises.” Id. at § 2.9.

180

The Red River Rivalry is one of the most hotly anticipated athletic events of any

given year pinning the University of Oklahoma against the University of Texas. The

rivalry began in 1900 and currently plays annually in Dallas, Texas. AT&T Red River

Rivalry,http://www.fairpark.org/index.php? option=com_content&view=article&id=223.

181

The Border Showdown, formerly known as the Border War, is annual series of

athletic contests between the University of Missouri and the University of Kansas.

M&I Border Showdown Series, MUTIGERS.COM, http://www.mutigers.com/ot/border-

showdown.html. The hatred between Missouri and Kansas dates back to 1863 when

William Quantrill of Missouri slaughtered citizens of Lawrence, Kansas and set the

city on fire. Austin Murphy, Bordering on Hatred, SPORTS ILLUSTRATED, Nov. 28, 2011,

at 58. After raids and retaliatory attacks ceased, in 1893, the University of Missouri

and the University of Kansas settled into a 120-year war on the gridiron. Id. Following

a University of Missouri victory on November 26, 2011, these two fine institutions may

never meet again. Tigers Trounce Jayhawks 24-10 in Border Showdown,

276 MISSISSIPPI SPORTS LAW REVIEW [VOL. 1:2

Lone Star Showdown.

182

Yet, these monumental events can be

easily disregarded. The University of Kansas (“Kansas”) indicated

that it will no longer compete against the University Missouri

(“Missouri”) when Missouri announced it was leaving the Big 12

for the SEC, which would end over one hundred years of

competition in the Border Showdown.

183

Similarly, Oklahoma

head football coach Bob Stoops said he could envision a time when

Oklahoma and UT would not compete against one another in the

Red River Rivalry.

184

The State of Texas has seen no rivalry like the hatred

between UT and Texas A&M, which possibly concluded in 2011 or

is taking a hiatus until at least 2019.

185

The Lone Star Showdown

began on October 19, 1894, in Austin, Texas with UT winning 38

to 0.

186

Both institutions make reference to one another in their

respective fight songs. Texas A&M’s War Hymn makes multiple

references to UT:

Hullabaloo, Caneck! Caneck!

All hail to dear old Texas A&M

Rally around Maroon and White

Good luck to dear old Texas Aggies

They are the boys who show the real old fight

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MUTIGERS.COM (Nov. 26, 2011), http://www.mutigers.com/sports/m-

footbl/recaps/112611aaa.html.

182

The Lone Star Showdown pins the University of Texas against Texas A&M

University. See Burka, supra, note 134 at 118; see generally W.K. Stratton, BACKYARD

BRAWL: INSIDE THE BLOOD FEUD BETWEEN TEXAS AND TEXAS A&M (New York, NY.:

Three Rivers Press, 2002). The rivalry began in 1894 and the University of Texas

currently leads the series 76-37-5. See Burka, supra, note 134 at 118; Tex. v. TA&M,

ESPN SPORTS OFFICIAL WEB SITE (Nov. 24, 2011),

http://m.espn.go.com/ncf/gamecast?gameId=313280245&wjb.

183

Missouri Hopes to Join SEC, ESPN SPORTS OFFICIAL WEB SITE (Oct. 6, 2011),

http://espn.go.com/college-sports/story/_/id/7063633/missouri-tigers-hope-join-sec-had-

wanted-big-ten-invite-most.

184

OU Coach: End of Rivalry Not Unlikely, ESPN SPORTS OFFICIAL WEB SITE, (Sep.

7, 2011), http://espn.go.com/college-football/story/_/id/6936844/oklahoma-sooners-bob-

stoops-see-future-texas-longhorns-rivalry.

185

Texas AD to A&M: Our Schedule is Full, ESPN SPORTS OFFICIAL WEB SITE, (Oct.

15, 2011), http://espn.go.com/college-football/story/_/id/7103015/texas-longhorns-deloss-

dodds-tells-texas-bill-byrne-nonconference-schedule-full-2018.

186

See Burka, supra, note 133 at 118.

2012] From Backyard Brawls to Cash Cows 277

That good old Aggie spirit thrills us

And makes us yell and yell and yell

So let’s fight for dear old Texas A&M

We’re going to beat you all to

Chig-gar-roo-gar-rem

Rough Tough! Real Stuff! Texas A&M!

Good-bye to texas university

So long to the orange and the white

Good luck to dear old Texas Aggies

They are the boys that show the real old fight

“The eyes of Texas are upon you . . .”

That is the song they sing so well

So good-bye to texas university

We’re going to beat you all to

Chig-gar-roo-gar-rem

Rough Tough! Real Stuff! Texas A&M!

187

Similarly, UT takes jabs at Texas A&M in response to the Texas

A&M War Hymn as follows:

Texas Fight! Texas Fight!

And it’s goodbye to A & M.

Texas Fight! Texas Fight!

And we’ll put over one more win.

Texas Fight! Texas Fight!

For it’s Texas that we love best.

Hail, Hail, the gang’s all here,

And it’s goodbye to all the rest!

Yea, Orange! Yea, White!

Yea, Longhorns! Fight! Fight! Fight!

Texas Fight! Texas Fight!

Yea, Texas Fight!

Texas Fight! Texas Fight!

Yea, Texas Fight!

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187

Texas A&M University, War Hymn.

278 MISSISSIPPI SPORTS LAW REVIEW [VOL. 1:2

The ‘Eyes of Texas’ are upon you,

All the live long day!

The ‘Eyes of Texas’ are upon you,

You cannot get away!

Texas Fight! Texas Fight!

For it’s Texas that we love best!

Hail, Hail, the gang’s all here!

And it’s goodbye to all the rest!

188

These fight songs, chants, and displays of camaraderie are

different than professional athletics. Unlike professional sports,

thousands of alumni travel to each game and cheer loudly for their

alma mater. The tradition and history is based on the alumni that

played on the field of battle or cheered loudly in the stands during

these unprecedented athletic contests.

Research shows that alumni, of the very institutions that are

seeking to or have left their conferences, prefer traditional

rivalries in close geographic proximity to one another.

189

In fact,

76 percent of fans and alumni favor traditional rivalries.

190

proximity allows institutions to develop natural rivalries that

extend for hundreds of years. Indeed, the alumni can take part in

rivalries and can support their teams by traveling to weekly

football contests. Now that conferences are expanding their

geography to spread thousands of miles, it is next to impossible for

fans, alumni, and parents to travel to each athletic contest. It is

both cost and time prohibitive. As such, universities have failed to

honor their commitment to history and the desires of their alumni.

V. CONCLUSION

Intercollegiate athletics has risen to a level of enormous

commercial success. Thus, many member institutions have

focused primarily on increased revenue and mobility at the

expense of tradition, student-athlete welfare, and alumni

preferences. At this stage, it is important to take a step back and

focus on the advantages and disadvantages of making decisions

primarily based on the bottom line. Although intercollegiate

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188

University of Texas, Texas Fight.

189

Conference Realignment Poll, BAYLOR UNIVERSITY OFFICIAL WEB SITE,

http://www.baylor.edu/survey.

190

Id.

2012] From Backyard Brawls to Cash Cows 279

athletics are increasingly commercialized, it is necessary to focus

on the aspects of intercollegiate athletics that separate it from its

professional counterparts. The rich history of traditions cannot be

ignored. Nor, can the values administrators express to student-

athletes. In sum, conference realignment and focusing primarily

on financial rewards is sending the wrong message to student-

athletes. Conference member institutions must honor their

commitments to their conference affiliates and their student-

athletes. Otherwise, intercollegiate athletics will spiral further

away from the core distinctions that make intercollegiate athletics

unique.

280 MISSISSIPPI SPORTS LAW REVIEW [VOL. 1:2