The Department of Justice told the Supreme Court yesterday that in its view a federal appeals court made the correct decision in an antitrust suit that invalidated the NCAA's football television plan, and that it is not probable the court will decide to review the case.
In a five-page, friend-of-the-court memorandum from Solicitor General Rex Lee, the Department of Justice said it was not in a position to determine the relative harm or the balance of equities between the parties with respect to a stay. In effect, the memorandum suggests to Justice Byron R. White, who issued a temporary stay to the NCAA, that it would be futile to continue the stay until the court reconvenes in October and decides whether to hear the case.
"While the United States disagrees with some aspects of the opinion of the Court of Appeals, we believe its judgment was correct," the memorandum concludes. "We are cognizant that this court traditionally exercises its jurisdiction to review judgments rather than to revise opinions."
In a friend-of-the-court brief filed with the appeals court, the Department of Justice, commenting on the merits of the case, said the NCAA's television plan violated antitrust law.
On Monday, White temporarily stayed a decision by the 10th Circuit Court of Appeals. That decision had upheld a federal district court's ruling that the NCAA's contracts with ABC, CBS and Turner Broadcasting System violated the Sherman Antitrust Act as an illegal restraint of trade.
White also stayed a district court injunction that kept the NCAA television plan in effect while the case was appealed. He asked attorneys for the University of Oklahoma and the University of Georgia Athletic Association, two NCAA members that tested the television plan, to respond by 5 p.m. yesterday so he could decide whether to extend the stay until October, when the court reconvenes and decides whether to review the case. The schools sent in their response by airplane and met the deadline. He invited the Justice Department to give its opinion at the same time.
Sources familiar with the operations of the Supreme Court say that what White does with the NCAA's request for a stay would probably indicate if the court will review the case. The NCAA does not ask for the review, only for the voided plan to be kept in effect for this season.
In many cases, when the court is in summer recess, a justice will poll his colleagues; if he finds four who will consider the case, the stay is extended, and it is more likely the court will decide in October to review the case. Under those circumstances, oral arguments probably would be heard during the winter and the earliest a decision would come down likely would be late next spring.
If a justice does not find four colleagues who will consider the case, it is more likely the stay will be dissolved, and less likely the court would decide to review the case.
Sources familiar with this case said they would not be surprised if White makes a further ruling by the end of this week. But they also said the stay would remain in effect if he remains silent.
If the stay remains in effect, then the NCAA's television plan would remain in force this season, when the NCAA is contracted to receive $74.3 million from CBS, ABC and Turner. It is the second year of a four-year deal with CBS and ABC worth a total of $264 million. It is the second year of a two-year deal with Turner worth $17 million.
In its petition for the stay, the NCAA contends that, at this late date, there would be chaos if schools and conferences all went to the market place at this time and began selling their rights.
Until six weeks ago, it appeared that if the NCAA lost its case, then the College Football Association--whose membership includes almost all major football schools with the exception of those in the Pacific-10 and Big Ten conferences--would control college football on network television.
However, in early June, about 10 to 12 athletic administrators, led by Andy Geiger of Stanford, Gene Corrigan of Notre Dame and Tom Hansen of the Pac-10 began meeting informally. Out of that evolved what is known simply as "the Coalition."
Some members of the CFA believe the organization has become too militant. Without the Pac-10 and the Big Ten, whose teams are located in such major markets as Chicago and Los Angeles and cover 35 percent of the nation's television sets, networks would not find a CFA package as attractive as the Coalition's. Notre Dame is pivotal in any contract, and Corrigan chaired the Coalition's first three meetings. Geiger is now chairman.
The Coalition would serve only as a television-negotiating entity for its members. Key factors that likely would prevent the Coalition's plan from facing the same antitrust fate as the NCAA's is that inclusion in its plan would be voluntary, and that appearance fees for national and regional games would not be the same, as with the NCAA's plan.