My turn | College Football Playoffs: A $7.8 Billion Game | Guest commentary

CFP Administration LLC (better known as CFP, short for College Football Playoff) and ESPN signed a $7.8 billion media deal in March that spans six years.

CFP is a limited liability corporation serving 10 Football Bowl Subdivision conferences (The Big Ten plus American Athletic, Atlantic Coast, Big 12, Conference USA, Mid-American, Mountain West, Pac-12, Southeastern and Sun Belt) and Notre Dame .

The CFP website reports that university presidents and chancellors at those institutions manage the championship playoffs.

Recently, the CFP-ESPN TV deal has landed on the radar of sports labor attorneys.

While the CFP is not a defendant at this time, its massive television deal on behalf of the FBS conferences contributes to the continuing fiction that college football players are not hired.

But first, let’s review the history of television in college athletics.

In the beginning

The University of Pennsylvania televised the first college football game in 1938. Penn televised games from 1940 to 1950.

Then the NCAA got involved.

A three-person “television committee” reported to the 1951 NCAA convention that TV was hurting game attendance. This school has strained finances to pay for athletic departments and facilities.

From 1952 to 1977, the NCAA TV committee streamlined the number of times a school could appear on national and regional broadcasts. The NCAA featured smaller schools with strong football teams.

The big schools resented this monopoly of televised games.

In 1977, five major football conferences organized the University Football Association.

At first, the CFA tried to work within the NCAA to secure more televised games.

The NCAA rejected the CFA’s ideas, so the University of Oklahoma—and other schools—sued the NCAA under the Sherman Antitrust Act.

In 1984, the Supreme Court ruled for the schools, stating that “the NCAA’s television plan, in reality, constitutes a restraint on the operation of a free market.”

This launched the era of conference-based TV contracts.

The CFA, Big Ten and Pac-10 competed against each other in selling their games as broadcast packages.

More recently, the power conferences have gone into the network broadcasting business for themselves.

That brings us to a key fact about college football television revenue: The power conferences — not the NCAA — have controlled that money for more than 40 years.

This financial reality has brought the CFP’s latest TV deal onto the radar of labor lawyers.

“Pricing Manpower”

Looking back from 2016 to the present, the House antitrust settlement uses power conference and NCAA TV revenue to recover $2.8 billion in name, image and likeness damages for athletes.

This case is strictly about allowing athletes to “share in the commercial benefits conferences and schools receive from the exploitation of student-athletes’ names, images and likenesses.”

This case is not based on the misappropriation of unpaid labor by the NCAA, but rather on the illegal exploitation of the NIL broadcast player.

Looking ahead—and considering the $7.8 billion in future football playoff revenue—another antitrust lawsuit, Fontenot v. NCAA, exploits three recent developments.

First, attorneys for the new case say the House case focuses on NIL, not unpaid work.

Second, the House deal ignores the $7.8 billion TV deal between the CFP and ESPN, which will generate huge revenue for major athletic programs that don’t pay athletes a dime for their work.

Indeed, the Chamber’s agreement strictly prohibits the employment of athletes.

Third, Fontenot’s lawyers are using Supreme Court Justice Brett Kavanaugh’s plan in NCAA v. Alston to challenge the NCAA’s salary-price-fixing conspiracy.

He said the NCAA’s “business model would be completely illegal in almost any other industry in America.” He continued: “Price-fixing labor is price-fixing labor.”

Fontenot’s complaint says “athletes are not being paid their fair share of this multi-billion dollar revenue … even though they — the athletes — through their work, are the most important driver of that revenue.”

It claims, “Yet, by operating as a cartel, the defendants have undercut the compensation paid to athletes for decades of work.”

Furthermore, “This case is not about NIL – it is about allowing the revenue to be allocated by the free market rather than the restrictive and illegal rules of a labor cartel that takes advantage of the athletes who are the primary source of its massive revenue.”

Exploitation of athletes

Now back to the CFP-ESPN TV deal that largely benefits the power conferences.

It’s completely outside the House’s seat (although the NCAA and power conferences continue to dispute this point).

The ironies in it abound, exposing a greedy financial game.

The first irony is that this TV deal reflects the intense frustration felt by the power conferences that have bristled at the NCAA’s monopoly allocation of TV games.

The power conferences won their case at the Supreme Court in 1984, opening the faucet to billions of dollars in football TV revenue that are out of the NCAA’s clutches.

In Fontenot’s case, the new CFP-ESPN TV deal portrays the power conferences as monopolists in the labor market who pay nothing for the work that creates so much value in these playoff games.

A second irony is that power conferences have amassed billions of dollars in revenue over the past 40 years by adhering to NCAA strictures against pay-to-play.

After defeating one NCAA monopolistic practice (the allocation of TV games) in the 1980s, the power conferences shamelessly exploited another NCAA monopolistic practice by fixing labor costs at zero dollars for each football player.

A third irony is that power conferences have found a championship provider—CFP Administration LLC—to stage their football championship event outside of NCAA governance.

But now that they’ve moved their television revenue and distribution in a smart play to CFP Administration LLC, the power conference’s self-dealing arrangement exposes them to a new antitrust labor complaint.

When you string these ironies together, you see why the Fontenot case is moving forward outside of the House deal — a deal that the power conferences and the NCAA intend to end all other antitrust lawsuits.

Essentially, Fontenot v. NCAA is about whether the college football players we watch during the playoffs are paid only for NIL, or NIL and their work, like professional athletes.