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Big Ten, ACC, Pac-12 Align as Alston Antitrust Warning Looms

Emily Caron and Michael McCann
·7 min read

The ACC, Big Ten and Pac-12 formally announced an alliance Tuesday, just weeks after Texas and Oklahoma revealed plans to join the SEC and make it the richest and most powerful league in college sports. With a 16-team super conference in the SEC’s future, the ACC, Big Ten and Pac-12 decided to act in concert to combat the SEC’s consolidation of power.

In a press conference addressing the alliance, ACC commissioner Jim Phillips cited the “unstable” environment in college football. Big Ten boss Kevin Warren called out the current “turbulence” in college sports, while new Pac-12 commissioner George Kliavkoff described the foundation of college sports as being in a state of “turmoil.”

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While none criticized the SEC directly, all cited the changing environment as reason for forming the new alliance.

While this alliance won’t have much of an immediate impact on college football—outside of serving as a show of unity in the face of the SEC—a key tenet will be a future scheduling component for football and men’s and women’s basketball. The proposed scheduling deal, which will create new interconference games, is seen as a way to compete with the supercharged SEC for television viewership and media rights money. Specific plans were not announced and no formalized contract has been signed, but the leagues did say the scheduling alliance will begin “as soon as practical while honoring current contractual obligations” and schedule commitments.

The football scheduling deal will feature additional matchups across the three conferences, while men’s and women’s basketball will add early and mid-season games to their schedules against alliance schools. New annual events that feature matchups between the three leagues are also on the horizon, as are potential combined event opportunities in Olympic sports.

When asked whether the scheduling plans were motivated by a desire to improve media rights revenue, Kliavkoff said there "may be residual benefits" for finances, but that money wasn't the initial focus. Still, as college sports has become a multi-billion dollar industry, it’s hard to ignore the financial elephant in the room. With the SEC poised to eclipse the NCAA in terms of revenue once it expands to 16 teams, its Power Five peers need to keep up financially.

As it stands already, SEC schools are set to earn more than $66 million per year starting in 2024 when the conference’s new television agreement with college football kingmaker ESPN kicks in. The arrival of the Big 12’s two most valuable assets sometime between now and 2025 could bump those figures even higher.

As The Athletic first reported, one motivator behind the alliance, for at least two of the conferences involved, is a concern about ESPN’s increasing power over the sport. The network was accused of interfering in conference business by the Big 12 and has been tied to other realignment rumors, though it has denied much of its role in the forthcoming shifts. The worldwide leader currently owns media rights in all Power Five conferences and is a partner in the SEC and ACC Networks, as well as Texas’ Longhorn Network. The ESPN family in 2021 will carry more than 10 times as many college football games as its closest competitor, Fox.

Part of the complexity of this alliance is tied to broadcast rights—figuring out which partners will get to televise what games, for example. It could lead to changes in scheduling procedures among its participants. For instance, both the Big Ten and Pac-12 require nine conference games on each team’s schedule, limiting their nonconference slates. Playing eight conference games instead, as the ACC does, would allow for an additional, perhaps interconference, contest. Both conference commissioners said they would consider the change.

If these verbal commitments are eventually executed, the additional nonconference games against fellow Power Five programs would help the Big Ten, ACC and Pac-12 stand up against the SEC’s massive viewership numbers. Though the SEC has historically dominated the most-watched college football games, several Big Ten teams and schools, including the ACC’s Clemson and independent Notre Dame, which already aligns with the ACC in all sports except football, are also among the top draws. A scheduling alliance brings the trio closer in competition with the SEC—and future SEC in particular—in this regard, aligning viewership titans like Ohio State and Michigan with Dabo Swinney’s Tigers.

Sources told Sportico that there is also a sense this alignment reduces the threat of poaching among the three league partners. The need to lure certain schools away from their existing conferences lessens with an alliance.

The three allies also plan to work and vote together on issues of College Football Playoff expansion and NCAA governance, seeing their schools as like-minded partners with similar athletic and academic profiles.

One of the more interesting implications to the alliance is whether conference cooperation will create an antitrust problem.

The coalition is intended to restrict the scheduling of football games. Such a move will invariably affect different elements of competition. For instance, it will change the academic, athletic and travel experiences of college athletes. It will also sway the allocation of TV viewership and revenue from media and broadcasting deals, just as it opens doors for some advertisers and shuts doors to others.

In the NCAA v. Alston ruling, Justice Neil Gorsuch stressed that “individual conferences remain free to impose whatever rules they choose.” The word “individual” plays an important role in Gorsuch’s proclamation. A conference acting on its own is unlikely to run afoul of Section I of the Sherman Act, a federal law that makes it illegal for competing businesses—such as competing conferences—to join hands in ways that unreasonably restrain competition.

Along those lines, Gorsuch underscored that the court’s injunction against caps on education-related benefits applied “to the NCAA and multi-conference agreements.” This injunction, he further clarified, “allows individual conferences (and the schools that constitute them) to impose tighter restrictions if they wish.”

If a conference decides to limit education-related expenses in ways that are more restrictive than other conferences, it can draw direct support from Gorsuch’s opinion. There would be no antitrust problem because the conference is acting on its own. If a player or coach dislikes the restriction, he or she can join a school in a different conference. In contrast—and as applicable to the ACC, Big Ten and Pac-12’s alliance—if a conference and another conference jointly agree to the same restriction, they can’t draw support from Justice Gorsuch’s opinion.

Keep in mind, agreements by multiple conferences do not automatically cause an antitrust violation. Under the applicable standard of review, a reasonable or market-enhancing restraint on competition is lawful. In contrast, a restraint that causes harm to consumers through higher prices, fewer options and less innovation—particularly if a less restrictive option exists—is more likely to be deemed illegal.

Here, the ACC, Big Ten, Pac-12 might insist they are merely aligning their “common values” and not trying to stifle competition. They could also assert their arrangement will enhance the marketplace, perhaps by creating superior opportunities for players and coaches and more lucrative deals with media and broadcast companies. Further, the trio can correctly point out that players, coaches, staff and potential advertisers who object to the union can join or work with other Power Five conferences. An alliance of three conferences is also distinguishable from an NCAA rule that applies to all member conferences.

Yet the industry of antitrust lawsuits over college sports has never been more ripe. Armed with the Alston ruling, as well as Justice Brett Kavanaugh’s blistering concurrence in favor of athletes’ rights, the incentive to challenge restrictions in college sports is there in plain view.