Notre Dame’s football independence is the stuff of great debate. But perhaps the Fighting Irish’s biggest ally in its eternal quest to stay independent plays Saturday at Notre Dame Stadium.
Not necessarily in word has Oklahoma been a Notre Dame supporter. But in deed.
Since 1991, Notre Dame has had its own television contract with NBC, an agreement that recently was extended through 2025. You think The Longhorn Network has caused a hullabaloo? The Notre Dame/NBC contract, which seemed to circumvent the College Football Association television package with which Notre Dame had been part of the negotiating team, was a national scandal on the collegiate sports stage.
But it was made possible by the OU-Georgia lawsuit against the NCAA. Notre Dame’s freedom to market its own television is exactly what OU and Georgia sought in the case that was settled by the U.S. Supreme Court in 1984.
The reason there are 30something college football games shown on your cable provider every Saturday? The reason virtually every OU and OSU football game is now televised? The reason Notre Dame could go off with its own NBC contract?
The OU-Georgia lawsuit.
A couple of weeks, I attended an OU Law School class taught by Kent Meyers, an Oklahoma City attorney whose specialty is anti-trust law. He teaches an anti-trust class. Meyers also was part of the legal team from Crowe & Dunleavy that won the case back in the 1980s.
I’ve used Meyers a lot as a source for anti-trust questions. He’s made me realize the simplicity of anti-trust law. Does it hurt the consumer? If it does, it might be a violation of anti-trust law. If it does not, it is not a violation of anti-trust law.
The NCAA monopoly on football TV contracts – remember back when only one or two games a day were televised; when a team was limited to only two or three telecasts per season – absolutely hurt the consumer.
Meyers told the class that the headlines in the early days of the court decision were “Too Wide World of Sports” and “College Football’s Biggest Fumble.” But those headlines quickly became “The Viewer Benefits Most” and “TV football fans find Heaven.”
The court case started when OU athletic director called Meyers’ partner Clyde Muchmore, asking about the viability of a lawsuit. That same day, OU regent Dee Reploge called another Crowe & Dunleavy attorney, Andy Coats. Coats and Muchmore ended up arguing the case before the Supreme Court.
But they needed Meyers’ expertise in anti-trust law. The attorneys went to Meyers and asked his advice.
“I said, ‘I don’t even know what you’re talking about,’” Meyers said. “They explained it to me. I said it sounds like a classic cartel. We have a bunch of competitors, competitors with each other, and they’re getting together and limiting the output by agreeing to not have their games televised.”
The price received for games was fixed. “Appalachian State-Ball State or OU-USC, same amount,” Meyers said.
The College Football Association was formed to revolt against the NCAA restrictions. Meyers said schools were told that if they signed a television contract outside the NCAA’s jurisdiction, they would go on probation.
Who knows what actually was going on, but no doubt, the NCAA was much more powerful then. Walter Byars ruled the organization with an iron fist. Nothing like the NCAA of today, which fears its members as much as its members fear the NCAA.
Meyers said OU’s administration made the decision to risk the wrath and file suit, with Georgia also attaching its name to the proceedings, helping to soften the blow.
Meyers said the lawyers made a wise decision. Actual damages would not be sought. The suit was filed in the Western District of Oklahoma, and Meyers gave a bunch of legal history that is mildly interesting if you’re into that sort of thing.
But Meyers said Andy Coats came to believe that NCAA stood for “Never Compromise Anything Anytime.”
“They’d never lost a case,” Meyers said. “They took us pretty lightly.”
Meyers remembers Byars as a “crusty fellow, not particularly pleasant to deal with.” Meyers said Byars’ belief was, “If you guys win, it’s going to hully gully. Going to be crazy, going to be chaotic. The world will end. That was Walter’s view if, for heaven sake, colleges and universities control their destiny.”
All the Oklahoma judges had recused themselves, and the 10th circuit had appointed Judge Juan Berciaga of New Mexico to the case. Berciaga finally ruled, with a 99-page opinion, that the NCAA’s plan violated the Sherman Anti-Trust Act as a price-fixing scheme.
Along the way, the Department of Justice and the Federal Trade Commission supported OU and Georgia, which Meyers said was novel. Typically, such government agencies joined the defendants.
When the case went to the Supreme Court, Muchmore and Coats flipped a coin to see who got to argue. Meyers says he was there for the coin flip. Coats won and eventually became dean of the OU law school. Not that there’s anything wrong with that.
Meyers said the first thing the legal team did was get a map and find out where the Supreme Court building was located.
The Supreme Court ruled in OU’s favor, 7-2. Justice Rehnquist and Justice White dissented. Byron Whizzer White had been an all-American football player at Colorado.
“Justice White didn’t recuse himself,” Meyers said. “Although he had a couple of years before had been awarded the NCAA Legion of Merit or Medal of honor, whatever they give, of being the best example of what a student-athlete ought to be and how they ought to turn out.
“He didn’t like our case at all. He let it be known by questions he asked, his attitude was kind of surly – not unusual for supreme court justices – and he dissented. He made a couple of predictions. Justice White predicted that college football as a product to be sold for TV presentation is threatened by ‘unbridled’ competition.
“He basically was saying, too much of a good thing. Eat so much television, you’re going to make yourself sick. Folks will get bored, won’t go to games, rich will get richer, it will be ruinous to college football.
“The other thing he said, if you leave the court with this decision in your pocket and you go do what you’re doing, you’re going to be right back here in a few years in the same position. You’re going to go out and put your own plan, and it will violate anti-trust laws, and you’ll be back on the other side of the table.”
White was largely proven wrong, but he also was instructive. Meyers and Muchmore talked with Chuck Neinas of the College Football Association, and they came up with a plan. Members of the CFA own their TV rights. The CFA would negotiate, if your game is selected for broadcast, great. If not, your game is free to be marketed however you want to market it.
White was proven partially right. The case did end up back in court. A few TV networks sued the CFA, crying monopoly. But Judge Juan Berciaga ended up with the case again, and the Crowe & Dunleavy team argued that this wasn’t like the NCAA case at all. There was no restraint on appearances or money.
Berciaga ruled, in essence, that the current plan was exactly what he envisioned. Each school, perhaps through their conference, perhaps not, determined their own television destiny.
“This gives the university the freedom they need to market their television rights, subject to any contractual restrictions,” Meyers said, quoting Berciaga.
Meyers said there was some collateral damage.
Meyers said Donnie Duncan, who eventually became OU’s athletic director, predicted decades ago that traditional rivalries could end. And they have. OU-Nebraska. Texas-Texas A&M. Many more.
But Meyers also said that even the Ivy League is now televised.
“Let’s look at Justice White’s predictions,” Meyers said. “How do you judge if unbridled competition is helping you or hurting you? One thing you look at is attendance. Next thing is stadia expansion.”
Both have skyrocketed over three decades.
But Meyers also pointed out that consumers are helped in other ways. Advertisers foot the bill, which means ultimately that consumers foot the bill. But ad rates are much lower now than years ago, because of so many games available. Therefore, costs on consumers is not as high.
“So we’ve got the best of all worlds,” Meyers said. “We’ve got Harry Home Viewer, with a six-pack on his stomach, watching as much football as he can watch. We’ve got the fan satisfied, more interest in college football than ever before. One of the reasons that is true because of this case.”
Meyers says the case has the most impact of any privately brought antitrust case in history.
It’s certainly impacted Notre Dame. The lawsuit gave the Irish the freedom to sign a contract with NBC.