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WASHINGTON — This is for all those Jayhawks, Wildcats and Cyclones concerned that their schools will be stranded by a Big 12 breakup: Don't count on the federal government to save you.
U.S. senators from Kansas and Iowa have floated the idea this week of federal intervention on the basis of antitrust concerns.
But national experts in sports law told The World-Herald it's unlikely that either Congress or the U.S. Department of Justice would throw a penalty flag on any conference moves.
College athletic conferences have been changing their membership rolls for years, after all, and a conference is simply the creation of voluntary agreements among individual schools, said David Weber, a Creighton University law professor who teaches a course on sports and entertainment law.
“It's tough to say you're preventing or monopolizing the market,” Weber said of the potential changes, which could include the creation of four 16-team super conferences. “I would be shocked if Congress said Nebraska can't go to the Big Ten.”
It's understandable that legislators from states such as Kansas would raise the issue because of the potential risk their universities face in being isolated, but such statements are more likely an attempt at public pressure than a signal of any real intention to act, Weber said.
“Their back's against the wall,” he said. “They're just trying to do anything they can to stay alive.”
Matt Mitten, director of the National Sports Law Institute at Marquette University, said Congress could theoretically wade into the issue in the name of regulating interstate commerce, but he doesn't see it doing so.
“This would be very rare that Congress ever gets involved and has specific legislation regarding the sports industry,” Mitten said. “Even though certain schools might be harmed or left out in the cold by conference realignment, this isn't really a pressing national issue.”
Mitten and other experts said it would be difficult to argue that changes in conference lineups violate antitrust laws.
“These realignments are occurring in response to market forces,” Mitten said.
Michael McCann, Vermont law professor and expert on sports law, agreed that legislative action is unlikely, although lawmakers could hold hearings to apply public pressure.
McCann noted that the Justice Department has expressed interest in whether the Bowl Championship Series violates antitrust law. He and other experts said if conference realignments further consolidate powerhouse schools to the detriment of smaller institutions, it could bolster an antitrust case against the BCS.
But the outcome of such a case would more likely involve changes to the structure of how the highest division of college football determines a champion, they said, rather than the membership of conferences.
Experts said the Justice Department would be a key player in any antitrust considerations. Justice spokeswoman Gina Talamona declined to comment on whether any potential exists for the department to take action.
Sen. Orrin Hatch, R-Utah, who has been critical of the BCS structure, told The World-Herald that he doesn't see Congress stepping into the conference realignment situation but that he continues to think the BCS system is inherently unfair — with privileged and non-privileged schools.
“I'm not as caught up in how they divide up the conferences . . . as I am the unfairness of the BCS system,” he said. “I understand there are problems no matter what you do, but there has to be a more reasonable way of handling the matter, and especially the money, than the current system.”
Sen. Chuck Grassley, R-Iowa, said Wednesday that he is concerned about the prospect of some Big 12 schools being left behind, including Iowa State, Kansas and Kansas State.
“My staff's looking into what can be done from the nonprofit and the antitrust standpoint,” Grassley said. “We very seldom get involved in college athletics. . . . We're just going to have to be looking into it.”
Sen. Tom Harkin, D-Iowa, said Thursday that some of those asking for federal action on conference realignment are the same people who have complained in the past that the federal government is too big, too intrusive.
“Now, they're calling on the federal government to get involved in sports,” Harkin said, without specifying who.
Harkin, however, was sharply critical of what he described as schools leaving the Big 12 to chase a buck.
“Count me down as one who is opposed to this mischief that's going on,” Harkin said. “I call it just that — mischief.
“It's mischief with dollar signs in front of it.”
Sen. Pat Roberts, R-Kan., had said Tuesday that Congress might jump in if the Big 12 came apart at the seams and the result was an even smaller number of exclusive power conferences. But later in the week, even Roberts downplayed the idea of any federal involvement.
“This is for the colleges and universities to decide,” he said.
Contact the writer:
202-662-7270, joe.morton@owh.com
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