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Conference Chaos: Could Congress Invoke the Sherman Act to Prevent Collegiate "Super Conferences"?

Published onNov 28, 2022
Conference Chaos: Could Congress Invoke the Sherman Act to Prevent Collegiate "Super Conferences"?

Recently, due to the stability of sports viewership at a time when people are flooded with entertainment options across various networks and streaming services, the price of television contracts to air the most viewed college football games has skyrocketed. Specifically, over the last two years, the Southeastern Conference (“SEC”) and Big Ten have signed massive new television contracts that will add billions of dollars in revenue and will allow the conferences to pay its members an estimated 100 million dollars per year by 2029. This influx in revenue caused a stir among college athletic programs and was likely a significant factor in the decisions made by Texas and Oklahoma to leave the Big 12 for the SEC, and in the decisions made by UCLA and USC to leave the Pac-12 for the Big Ten.

In the wake of these announcements, the Big Ten is also reportedly interested in adding Oregon, Washington, Stanford, and California, Berkley to its ranks. If this were to happen, could Congress act against the Big Ten for violating the Sherman Anti-Trust Act (“Sherman Act”) Currently, it appears unlikely.

Section 1 of the Sherman Act bars activities that restrict interstate commerce and competition in the marketplace, and specifically prohibits undue “restraints of trade.” In determining whether a restraint on competition is undue, courts typically use a rule-of-reason analysis, which requires a fact-specific assessment of market power structure to properly assess a challenged restraint’s actual impact on competition.

To date, Congress has not thoroughly explored Sherman Act violations against conferences for realignment activities, however, they have taken notice of the potential issues surrounding the practice. Notably, during the last conference realignment period in 2011, then Congressman John Conyers, Jr., in a letter to the House Judiciary Committee, urged the committee to hold a hearing on the issue of conference realignment and its potential economic impact on smaller conferences. The letter stated, “…conference realignment has had a dramatic impact on college sports, including the viability of smaller conferences and schools.” Additionally, around that time, the deputy communications director of the House Committee on Energy and Commerce stated, “[w]e are keeping a close eye to ensure super conferences are not abusing market power to foster an anti-competitive and unfair environment.”

Could this issue be brought up in Congress during this round of realignment? Considering this was seen as a potential of restraint of trade in 2011 with the shifting of only a few relatively minor programs and without the influx of new, prohibitively expensive television contracts, it seems likely that Congress may once again want to explore the practice as a violation of the Sherman Act.  If this were to happen, the SEC and Big Ten could be placing a “restraint on trade” for essentially creating two “super conferences” that hold a vast amount of power and leverage in terms of television revenue and competition over the other conferences.

Further, just a couple months ago, the Big 12 Commissioner, Bob Bowlsby sent a “cease-and-desist” letter to ESPN for allegedly conspiring with the SEC to poach Texas and Oklahoma from the Big 12 and accused ESPN of conspiring with another conference to break up the Big 12. In response to this letter, Senator Jerry Moran called for a hearing before the Commerce Committee stating, “I believe these allegations and the effects of conference realignment warrant the attention of the Commerce Committee.” These allegations have not been further explored to date, but Senator Moran’s letter could serve as a first step in Congress taking action during this round of realignment.

At this point, with only the announcements of Texas, Oklahoma, USC, and UCLA, it appears unlikely that Congress could step in to break up the SEC and Big Ten. However, if the SEC and Big Ten continue to poach large, profitable programs from smaller conferences across the country, leaving the NCAA with two super conferences that hold significant control in terms of revenue and competition, Congress may see the Big Ten and SEC as restricting trade among smaller, less profitable schools and invoke the Sherman Act to bring the practice to a halt.


Henry H. Little is a second-year law student at Wake Forest University School of Law. He holds a Bachelor of Arts in History and Government & Legal Studies from Bowdoin College, where he was also a four-year member of the football team. Upon graduation, he intends to pursue a career in the investment management industry.

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