Why The Big 12 Might Actually Sue ESPN

Late Wednesday afternoon, Big 12 Commissioner Bob Bowlsby sent a cease-and-desist letter to ESPN president Burke Magnus demanding that ESPN cease and desist from “all actions that may harm the [Big 12] and its members.” The letter further demanded that ESPN not communicate with the Big 12’s existing member schools or any other NCAA Conference regarding the Big 12’s members, conference realignment, or the potential financial implications and incentives of conference realignment. But what did ESPN—which has a broadcast deal with the Big 12 and the other Power Five conferences and owns or airs the vast majority of college bowl games—do to “harm” the Big 12?

Bowlsby’s stated reasoning for sending the cease-and-desist letter was twofold. First, Busby believes ESPN has been working with at least one other conference to induce current Big 12 schools not named the University of Texas or Oklahoma University to join another conference. Second, Bowlsby accused ESPN of violating its television rights agreement with the Big 12 by taking actions which impair the Big 12’s rights under the agreement. The letter marks a significant escalation in the already ugly (but nevertheless intriguing) battle that began with Texas and OU admitting their intentions to leave the Big 12 for the SEC.

Bowlsby followed up the cease-and-desist letter—first published by Ross Dellenger of Sports Illustrated on Twitter (@RossDellenger)—by stating that he has documented evidence that ESPN tried to encourage another conference to add Big 12 members in an effort to destabilize the Big 12 so Texas and OU could avoid paying exit fees required by the Big 12’s grant of rights agreement.

If true, Bowlsby’s legal theory is that ESPN’s attempted inducement of a Big 12 school to join another conference (possibly the American Athletic Conference, as reported by multiplesources) could constitute tortious interference with an existing contract. State laws differ, but generally speaking to establish a claim for tortious interference with an existing contract, the Big 12 must show: (1) the existence of a contract subject to interference; (2) ESPN willfully and intentionally committed an act of interference with the contract; (3) the act of interference proximately caused the Big 12 damage; and (4) the Big 12 suffered actual damages. There is no question that contracts between the Big 12 and its member schools exist, and any defection by a Big 12 school to another conference would certainly result in damages to the Big 12; those elements are easy to prove. What would be difficult for the Big 12 to demonstrate is that ESPN intentionally committed an act that interferes with the contracts between the Big 12 and its member schools. Generally speaking, the Big 12 would have to produce evidence that ESPN intended to cause or induce a member school to breach its contract(s) with the Big 12, or that ESPN tried to prevent the member school from performing its obligations under the contract(s).

As the cease-and-desist letter is worded, whether the Big 12 could prove such an intentional act of interference seems unlikely. Specifically, Bowlsby states that he is “aware that ESPN has also been actively engaged in discussions with at least one other conference regarding that conference inducing additional Members of the Big 12 Conference to leave the Big 12 Conference.” If the assertion is that ESPN is talking to the AAC about the benefits of poaching Big 12 schools, I’m not sure that constitutes an intentional act to interfere by ESPN, since ESPN is not actually speaking directly with the member schools about breaching their contract(s) with the Big 12. However, Bowlsby has said that he has evidence, so it is possible more proof will be forthcoming.

That said, if what Bowslby says in the letter is true, it’s more likely the Big 12 would have a viable breach of contract action against ESPN. Indeed, talking with and potentially incentivizing another conference to induce Big 12 member schools to leave would certainly seem to constitute actions prohibited by the television rights agreement with ESPN, specifically: “actions likely to impair, or [that are] inconsistent with, the rights of the [Big 12] has acquired under [the television rights agreement with ESPN].”

Ultimately, it seems more likely that the cease-and-desist letter and Bowlsby’s subsequent comments are an effort to put ESPN, the SEC, Texas, and OU on notice that the Big 12 believes there is more to the story than just the company narrative about how Texas and OU began their journey to SEC membership. Bowlsby and the Big 12 appear ready to argue that the effort to get Texas and OU to the SEC and avoid exit fees dates back months, that it wasn’t just a simple case of Texas and OU approaching the SEC about joining, and that it involved intentional actions by ESPN and the SEC.

So, if there were any questions about whether the Big 12 was going to slip quietly into the annals of college sports history without an ugly (but still intriguing) legal fight, let those questions be put to rest. They appear ready to fight, and they’re bringing ESPN with them into the CONFERENCE REALIGNMENT WARS!

John R. Sigety (https://www.krcl.com/attorney/john-r-sigety/) is an attorney at Kane Russell Coleman Logan PC in Dallas, Texas. He is a graduate of Tulane University Law School, where he obtained his law degree and a sports law certificate. He has written extensively on sports law issues. You can follow him on Twitter @JohnRSigety