Columnist Dean Juipe: Feds’ look at ESPN deals is tip of the iceberg

Dean Juipe

Friday, July 9, 2004 | 9:40 a.m.

Dean Juipe's column appears Monday, Tuesday, Wednesday and Friday. His boxing notebook appears Thursday. Reach him at juipe@lasvegassun.com or (702) 259-4084.

When news leaks out that the U.S. Justice Department's antitrust division is looking into an issue, applause can usually be heard from at least one side of the debate or aisle. Sentiments are inflamed and the impassioned are eager to be heard.

But that is not at all what has occurred in the immediate aftermath of the feds launching an investigation into ESPN and its football and basketball contracts with college leagues.

It's as if both sides -- networks and leagues -- are quite content with the status quo. Neither seems inclined to join the rocking of the boat that the Justice Department initiated last week when it tipped its hand and confirmed it was prying into the legality of the contracts.

And the general public, while still largely in the dark about the complexities of the case, may have no opinion at all on the matter (just yet) even though the end result could be an increase in the number of televised games.

At the crux of the feds' interest is a tactic used not only by ESPN but by seemingly all of the networks that televise sports. It has to do with exclusivity clauses and the right of a network to prohibit a league from entering into overlapping TV deals that would diminish the value of the primary broadcaster's product.

In short, ESPN doesn't want to sign a deal with the Mountain West Conference, for instance, to televise some 21 games (as it and its affiliates will do this football season) and then discover the league has signed a secondary deal that would put another 10 or 20 games on a separate, competing network. So, ESPN inserts an exclusivity clause and, in theory, it pays extra for that right (while allowing the individual teams in a league to enter into local TV deals that do not affect ESPN's nationally televised schedule).

Seems fair enough, particularly when the leagues themselves are not complaining and no fans' organization or movement is pushing for a fight.

"We haven't been contacted (by the Justice Department), so we don't have a comment," said Mountain West Conference assistant commissioner Bob Burda from the league's Colorado Springs office. "It's so early in the process -- if there is a process -- that we haven't paid any attention to it."

It's not that MWC administrators have their heads in the sand or that they are indifferent or that they can't function without commissioner Craig Thompson, who's on vacation for the month. It's just that the six-year-old league is content with its ESPN deal while not wanting to position itself as being in opposition to something that may eventually benefit its fans.

What the feds want to do is force ESPN to take the games it has the contractual right to televise but chooses not to, and put those games on the open market where another network could bid on them if it so desired.

Beyond the image of the pandemonium that would initially ensue, the Justice Department's heart might be in the right place and it has opened its inquiry by delving into ESPN's deal with the Atlantic Coast Conference.

"We would need a crystal ball," Burda said, when asked if the feds' interest in the ACC is apt to extend to the Mountain West Conference, which includes UNLV as one of its eight current members.

The Justice Department likely selected the ACC as a starting point because of its East Coast proximity and because it is a hotbed of college sports, and that it will find the ESPN-ACC deal perfectly reflects the network's deals with other leagues. No crystal ball is needed: If the feds toss out the ESPN-ACC deal, every other league will have its TV contract either invalidated or subjected to federal oversight and change.

This is not a sexy issue, yet it's one that could grab some headlines as it's resolved. It's a nuts-and-bolts matter that could lead to greater income for the leagues and their individual members, as well as to a greater number of games available to the consumer.

ESPN and its college football and basketball deals are, of course, just the tip of this iceberg. If the cable network's college deals have to be reworked, so will every TV deal with every sports league in America.

Want to see the Pirates and Expos play today? The push of a button could make it happen in some not-too-distant reality.

But if the Justice Department comes up empty or determines that exclusivity clauses are not a violation of antitrust law, then it will have needlessly spent countless dollars and hours. Insiders say such an outcome is a possibility, given the political nature of Justice Department inquiries.

In an era where the television universe is continually expanding and where a fan's appetite for sports is sometimes seen as insatiable, this just-underway probe will eventually require every league's attention. For sure, it already has ESPN's attention.

And it will get the fans' attention too, if there comes a time when every sporting event on a given day is fair game to be televised by a willing broadcaster no matter how limited the market.