In his capacity as a Columnist for California Sports Lawyer®, Founder Jeremy Evans has written a column about the potential for change in the NCAA college athletics model with on-going litigation and proposals being introduced.
You can read the full column below.
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The Power Five and soon to be Power Four conferences in college football and basketball have been separating themselves from the entire group of college athletics for many years now. Separation by popularity, broadcast and streaming dollars, sponsorship, and now name, image, and likeness (NIL) money for college athletes. The College Football Playoff and the NCAA have also led to further separation in terms of governance by policy, action, or otherwise.
The Power Four being the Big Ten (Big Ten), Southeastern Conference (SEC), Atlantic Coast Conference (ACC), and the Big Twelve (Big 12). The Pacific 12 Conference (Pac-12) is set to have two members in 2024 with Oregon State University and Washington State University, thus removing itself from the Power Five status because of loss of significant school membership, revenue, and a conference championship game. As a result of litigation, both of the aforementioned schools now control the name and potentially the intellectual property of Pac-12 by virtue of either contract law or corporate structure where ten schools voted to leave the conference. What Oregon State and Washington State do with the Pac-12 name is yet to be seen, but one thought is that the Pac-12 would merge with the Mountain West Conference and take on the Pac-12 name. There is already a schedule of play agreed to between the conferences for 2024.
Ideally for the former Pac-12 members that left for the Big 10, Big 12, and ACC, the Pac-12 conference would have been shut down permanently as an entity. As former corporate officers to a board, having intellectual property of a business that had become a shell of itself invites a public relations and business management issues. Unfortunately for the former Pac-12 members, once they left the conference the court felt it no longer had a say in its future. In a corporate setting, dissolution is normally something managed by the operating agreement or articles of incorporation, but with two officers/board member schools wanting to continue the business/conference, the issue was created. For the former Pac-12 schools, they may ought to consider paying Oregon State and Washington State to close down the conference to prevent any intellectual property licensing and public relations issues.
According to UCLA’s head coach Chip Kelly, who is normally on the quite side of press conference commentary, shared his thoughts at length on the future of college football after UCLA’s Saturday victory over Boise State University in the LA Bowl game played at SoFi Stadium. Coach Kelly said that a sixty-four (64) team conference would be ideal for football only with a majority of the games being against west coast college football teams for a sport with the fewest number of games. Whereas, basketball, volleyball, baseball, gymnastics, and other sports would be played against traditional rivals that are local (so essentially the Pac-12 model against Arizona, Utah, etc.; so maybe the Pac-12 conference name should be kept around!). The Division I 64 team conference would seem to add parity and schedule diversification and an exciting new format. Coach Kelly has also advocated for paying players by providing them with some television/streaming dollars.
Meanwhile, litigation in California against the University of Southern California (USC), a private institution, the Pac-12, and the NCAA is being argued by the plaintiff that private schools and potentially all NCAA members should be forced to classify student-athletes as employees under a federal unfair labor practice claim. If the lawsuit is successful for the plaintiff, it would mean that the NCAA and university model of student-athletes as non-employees would be deemed illegal ushering in a new era of potential collective bargaining, unionization, sharing of revenue, workers compensation claims, tax withholdings, and much more. The dealmaker side would suggest that a settlement would be made prior to any ruling—specifically that college athletes receive additional funding from the underlying institution with the litigation serving as the conduit to settle the matter. By the way, even with UCLA and USC leaving the Pac-12, they would still be liable in the suit because they were members of the conference at the time the claims are being alleged and for also being members of the NCAA.
Any changes as outlined would alter college athletics specifically in football and basketball forever and would not address the Title IX issues created by paying athletes. For example, a capitalist market would call for certain pay based on skill and television views and dollars being created by conferences, games, and social media engagement. However, Title IX would require equal pay for men and women regardless of success or markets. Employment law may also require changes to collectives and NIL money.
The next college sports model is anyone’s guess, not to mention what Congress and state legislatures will do in terms of college-specific legislation. It is difficult to ascertain what may happen next week or even next season. NCAA President Charlie Baker introduced potential NIL direct payment changes, which may become a start to settle the matter outside of court to prevent monumental changes to college sports that universities might not be able to handle otherwise.
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About Jeremy M. Evans:
Jeremy M. Evans is the Chief Entrepreneur Officer, Founder & Managing Attorney at California Sports Lawyer®, representing entertainment, media, and sports clients in contractual, intellectual property, and dealmaking matters. Evans is an award-winning attorney and industry leader based in Los Angeles and Newport Beach, California. He can be reached at Jeremy@CSLlegal.com. www.CSLlegal.com.
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