Guest Blog: Tim Epstein on NCAA rules and show clauses

"After last week's post on Bruce Pearl, Tim Epstein '99 and I had an offline conversation regarding show clauses and NCAA penalties. Tim, who teaches sports law and runs a sports law group, agreed to clarify some of the issues. His explanations run below."

What is a show-cause penalty and what does it entail?
-- NCAA bylaw 19.02.03: Show-Cause Order. A show-cause order is an order that requires a member institution (i.e. school or conference) to demonstrate to the satisfaction of the Committee on Infractions (“COI”) why it should not be subject to a penalty or additional penalty for not taking appropriate disciplinary or corrective action with regard to an institutional staff member or representative of the institution’s athletics interests found by the Committee as having been involved in a violation of the NCAA Constitution and Bylaws.

This rule potentially leaves any school that wishes to employ an individual subject to a show-cause order, within the term of said show-cause order, to potential NCAA penalties at the institutional level. Therefore, if a school wishes to hire Bruce Pearl prior to the conclusion of his show-cause penalty, the school that hires him could face NCAA penalties based on Pearl’s NCAA violations while he was at Tennessee.

As a result, if BC hires Bruce Pearl as head coach and fails to show-cause for hiring him, BC could face NCAA penalties for violations that occurred while Pearl worked at a different school both in the form of

Pearl's penalties remaining in place as well as additional sanctions on BC.
So, to clear up a couple misconceptions: (1) a show-cause order does not require a NCAA member institution to fire the employee, nor does it (2) serve as a ban against a member institution from hiring the penalized coach/staff member.

What was the actual penalty against Bruce Pearl and the reason for the penalty?

Pearl received a three-year show-cause order, and three of his assistants were given one-year show-cause penalties. The COI singled out Pearl and his staff for giving misleading information about a cookout in 2008 that involved a junior in high school (current Ohio State guard Aaron Craft). Craft was on an unofficial visit and was not allowed to be at Pearl's home. The COI noted that Pearl said that attendance at the cookout was an NCAA violation and encouraged those who were there not to disclose it to others. Pearl then lied about the incident and called Craft's father to ask him to do so as well before finally telling the truth to NCAA investigators.

Pearl’s show cause penalty expires Aug. 23, 2014.


How would hiring Bruce Pearl prior to the expiration of his show cause penalty effect BC?

If BC wishes to hire Bruce Pearl before the expiration, BC must appear before the COI to show cause why BC should not be subject to penalties for hiring Bruce Pearl prior to the conclusion of his show-cause order.
If BC fails to show cause for hiring Pearl, (1) Pearl's current penalty would continue through the expiration date of the show-cause order, and (2) BC could face additional disciplinary actions and penalties from the COI.

Therefore, the far majority of the time, a member institution will not hire an individual currently serving out a show-cause penalty.



Would Bruce Pearl’s past transgressions still be penalized now?

Yes it would be. 13.02.4 defines what a contact is. A contact is any face-to-face encounter between a prospective student-athlete or the prospective student-athlete’s parents, relatives or legal guardians and an institutional staff member or athletics representative during which any dialogue occurs in excess of an exchange of a greeting. Any such face-to-face encounter that is prearranged (e.g., staff member positions himself or herself in a location where contact is possible) or that takes place on the grounds of the prospective student-athlete’s educational institution or at the site of organized competition or practice involving the prospective student-athlete or the prospective student-athlete’s high school, preparatory school, two-year college or all-star team shall be considered a contact, regardless of whether any conversation occurs. However, an institutional staff member or athletics representative who is approached by a prospective student-athlete or the prospective student-athlete’s parents, relatives or legal guardians at any location shall not be regarded as a contact, provided the encounter was not prearranged and the staff member or athletics representative does not engage in any dialogue in excess of a greeting and takes appropriate steps to immediately terminate the encounter. (Revised: 1/11/94 effective 8/1/94)

NCAA Bylaw 13.1.1.1.1: in men’s basketball, off-campus recruiting of contacts shall not be made with an individual (or his relatives or legal guardians) before the opening day of his junior year in high school.

Contacts that occur during a prospective student-athlete’s junior year during recruiting periods other than the April recruiting period may occur only at the prospective student-athlete’s educational institution. During the April recruiting period of a prospective student-athlete’s junior year, contacts may occur at either the prospective student-athlete’s educational institution or residence. (Adopted: 10/27/11 effective 8/1/12)

At the time of Aaron Craft’s unofficial visit he was only in 11th grade. Therefore, the barbeque at Bruce Pearl’s house would still be a NCAA violation today, as would Pearl’s lying to NCAA investigators.
What may have changed if the violation occurred in 2014 is that the penalty levied against Pearl would have been shorter in duration.

TV Rights Q&A with sports lawyer Timothy Epstein

There has been so much speculation on the ACC TV contract, that ESPN felt the need to post a press release explaining and defending the deal. BC guy Tim Epstein specializes in sports law. He is familiar with standard TV rights deals and has some knowledge of the ACC TV deal. To get a better understanding of the situation and the ACC's options, I asked him the following questions. His answers follow.

1. Why would the ACC give the Commissioner the right to agree to a deal without their approval? Is this common among college conferences?

Tim Epstein: With the TV deals, these were unanimously approved by the schools. There is an ACC television committee among the members. There is no carte blanche given to the Commissioner to get a deal done. When expansion was agreed upon in September, this was done by the school presidents. They agreed upon the expansion knowing that money would be adjusted relative to the existing ESPN deal. Any specific details get floated to the television committee after the big picture is decided by the presidents (in consultation with the ADs, financial consultants, and legal).

2. Do the schools have the right to veto the agreement? Is a simple majority needed to ratify the deal?

Tim Epstein: I am sure that the response from both the ACC and ESPN would be that a right to veto is moot here since there was unanimous approval on the initial deal. Each conference has voting procedures set out in its constitution or bylaws, but these are not usually readily available to the public, so it is difficult to know what is “common” amongst the conferences in terms of voting. Since the ACC Bylaws are available for purchase, but not for free viewing, it would be inappropriate for me to cite to the specific bylaws. One example that has been brought out in public by ESPN is the Big Ten’s process of voting in Nebraska a couple of years ago. Pursuant to Big Ten Bylaws, acceptance of Nebraska into the Conference required an affirmative vote of seventy percent of membership, voted on by the presidents and chancellors of the member schools. You could extrapolate something similar for TV revenue.

3. Even though the ACC is in a long term deal with ESPN that includes "look ins" why can't they sue ESPN for bad faith? This deal is clearly undermarket but because the ACC doesn't have a true out, they can't shop their rights to NBC/Comcast, FOX, or CBS.

Tim Epstein: While there may be disappointment in the deal, there were financial consultants involved who would place the ACC deal above true market. There are timing aspects of other deals. This is undermarket relative to Pac-12, but again this is not necessarily apples to apples. The Pac-12 might actually be an overpayment. Keep in mind that course of dealing with ESPN has been good for the ACC. The ACC hired multiple financial consultants on this deal, so it was not done without knowledge.

Even though some may view this deal as disadvantageous to the ACC and its member schools, the ACC probably does not have a valid claim for bad faith against ESPN for a number of reasons. Primarily, while this contract (15 years, $3.6 billion) may fall short of the other four power conferences’ TV deals; it is by no means unfair or unconscionable from a substantive perspective. As the examples of Syracuse and Pittsburgh demonstrate, the ACC is still an attractive location for schools, in large part due to its television revenue. Just because the contract is not ostensibly on par with the Big Ten, SEC, Pac 12 and Big XII does not mean that the ACC is getting an unfair shake here. Revenues upward of $17 million per school per year would have been unheard of just a few years ago.

From a procedural point of view, a bad faith or unconscionability claim is equally weak. ESPN has broadcast ACC content since its inception in 1979, and the two entities have maintained a strong relationship since that time. This relationship hurts the ACC’s chances of proving bad faith, because the network has historically proved quite advantageous to the Conference, and the working relationship creates a presumption that the dealings were conducted at arms-length. It is not at all uncommon for business entities that have contracted for a long period of time to pay for goods or services slightly below market rate in order to maintain the strong relationship. Moreover, as was stated in the question, ESPN does not have a monopoly on the broadcast of collegiate athletics. The ACC could have looked to NBC/Comcast, FOX, or CBS as an alternative to the contract it signed with ESPN. The Conference chose not to do so, and instead, signed this deal.

I think that people are focusing on the additional members being a change in material circumstances as a reason to renegotiate the deal. That is true, which is why different numbers are in with the entrance of new members, but people simply want these numbers higher. That brings us to valuation, which intelligent minds will differ on whether the new numbers on the May 9th ESPN deal are at, below, or above market.

4. Why are we still at the stage where the conferences allow ESPN to poach member schools? I know the ACC has been guilty of it in the past, but I could never understand the ESPN angle. For example, ESPN was paying $7 million for the rights to Syracuse Football. Now they will pay $17 million. Florida State is getting $17 million but might get $25 million in the Big XII. ESPN knows this and knows what it will pay in the new conference. Shouldn't the conferences build in some sort of protection so their main supplier doesn't manipulate membership?

Tim Epstein: This question requires a few separate responses that may be a bit disjointed. Initially, I think ESPN's influence on conferences is a bit overstated. The conferences surely recognize that bigger is better, and conference realignment is a direct result of the drive to increase television revenues, but to suggest that ESPN is actually dictating the movement of institutions is misguided. At most, ESPN can say, “if you add member school X, we will pay you Y.” While money talks, conference affiliation is still a decision made by university presidents and chancellors, and one would hope that academic and non-football considerations still come into play. Also, the Syracuse example focuses too much on the small picture. Syracuse may be earning a greater share of revenue as a result of its move, but ESPN is not paying the school $10 million more per year just so it can broadcast Syracuse football. ESPN and the ACC are looking at the big picture -- ESPN is paying this sum for the rights to broadcast all ACC football, and the Conference is undoubtedly more attractive as a fourteen team conference than the current Big East is as a cross-continental amalgamation of schools. This, and an academic upgrade, is why Syracuse left, and this is why ESPN is paying.

One must also not forget that Syracuse and Pittsburgh make ACC basketball all the more attractive as well because the schools will play regular matchups with traditional powerhouses like UNC and Duke. Obviously football reigns, but in the ACC especially, basketball cannot go unnoticed. Finally, the conferences do have some level of protection against schools exiting in the way of exit fees and waiting periods. The Big East, for example, just voted to raise that fee from $5 million to $10 million. Again though, this protection is more against schools leaving in general.

While ESPN has a great deal of market power, it is not the sole supplier of college football, and cannot really manipulate schools other than by offering economic incentives. From the ACC’s point of view, its strongest protection against departure of member institutions could be more success on the field. Its traditional top football programs ( Miami and Florida State ) have not faired well on the national stage, and this has hurt the Conference’s attractiveness to its suppliers (read ESPN). This perceived weakness has only exacerbated the problem, as now, schools like Florida State are worried that the ACC will no longer be viewed as a “top-tier” conference, and thus, the Big XII has become a viable alternative from a football-centric perspective. So for Florida State, it has really made its own bed by underperforming as a national power in football, thus potentially adversely affecting the price ESPN was willing to pay for the ACC as a whole.

Finally, $25 million is not something that I have seen justification for. The only fact out of the Big 12 is that the average of the deal comes out to $20 million per year. This does not start until 2015. These are graduated deals. For the ACC, the whole length of the deal is $17 million plus, but a different formulation puts the ACC at $19 million. So, you could really be talking about another million per year if a school went to the Big XII. ESPN has no interest in creating a have-not conference when they have created a have in the ACC. The ACC is probably the most balanced from markets, geography, sports, and academics. My read is that TV values are maybe 30% of athletic budgets at this point. It is big, but not everything. The SEC gets more than the ACC, and deserves more for football. The Big 10 got a big investor at the right time, and you could say the same for the Pac-12, so timing factors in. Those conferences also get more rights from their members than the ACC gets from its membership in areas to monetize. I love BC, but in terms of football, the ACC does not have the same value from a branding standpoint, particularly with FSU and Miami being down recently.