Big Move to the Big Ten: But Can UCLA Play?

On June 30, 2022, the University of Southern California (USC) and University of California, Los Angeles (UCLA) athletic departments announced their respective decisions to leave the Pacific-12 Conference (“Pac-12”) to join the Big Ten Conference (“Big Ten”) effective the 2024 academic year.[1]  The realignment stems from USC’s and UCLA’s desire to capitalize on the Los Angeles media market in the Big Ten’s digital media rights deal, which would afford each university a projected $100 million cut per year, versus the Pac-12’s equal-share revenue model of less than half that amount.[2]  But as lucrative as it may be, this move does not come without its obstacles.

For UCLA to reap the benefits of the Big Ten’s media rights deal, it must first answer to California law.  California Assembly Bill No. 1887 (“AB 1887”), codified as section 11139.8 of the California Government Code, prohibits agencies from state-funded or sponsored travel to any state with laws discriminating against “same-sex couples or their families or on the basis of sexual orientation, gender identity, or gender expression, as specified, subject to certain exceptions.”[3]  Since AB 1887 took effect in 2017, twenty-one states are subject to the travel ban.[4]  As agencies of the state, the restrictions imposed by AB 1887 apply to the California State University (CSU) and University of California (UC) public school systems, which includes UCLA.[5] 

The current alignment of the Big Ten member institutions helps to demonstrate what AB 1887 means for UCLA’s move to the Big Ten.  Of the twenty-one states impacted by this legislation, three—Indiana, Iowa, and Ohio—are home to four Big Ten member institutions: Indiana University, Purdue University, University of Iowa, and The Ohio State University.[6]  The typical college football schedule features twelve regular-season games—including nine inter-conference games and four to five “away” games.  Currently, the Big Ten consists of fourteen schools divided into two divisions, with two schools subject to the travel ban in each division.[7]  Each team is scheduled to play six games against the teams in their division and three games against teams in the other division, those three teams being scheduled on a rotational basis.[8]  In other words, regardless of what division UCLA is integrated into, it must play potentially two to four games against schools in banned states per season.  This leaves UCLA with two options: find a “loophole” or don’t play. 

It wouldn’t be the first time a California public university was faced with an inter-conference travel ban.  In 2020, San Diego State University, Fresno State, and San Jose State University—all CSU universities—were faced with a decision when Idaho was added to California’s travel ban, thus barring the use of state funds for the schools to travel to Boise State, another member-institution in the Mountain West Conference.[9]  As a “loophole,” the schools announced they would be using private funds to cover the travel expenses to Idaho.[10]  Such private funds are comprised of “amounts received directly from individuals, corporations, associations, foundations, clubs or other organizations for the operations of the athletics program” and other non-taxpayer sources.[11]

Yet, if history is indicative of anything, UCLA may altogether choose to comply with AB 1887.[12]  Recently, Scott Markley, UCLA’s senior associate athletic director for communications, addressed the concerns with section AB 1887’s impact on Big Ten travel, noting that UCLA “[has] not scheduled a new competition in a banned state since the law was enacted in January 2017.”  However, he added that “[s]hould UCLA compete or recruit in a banned state, in compliance with the law, none of the costs for travel to that state will come from state funds,” and student athletes and staff members will be “given the choice to opt out of the travel with no risk of consequence.”[13]  Problem solved, right?

Not quite. The use of private funding is a “fix” but it’s not always an option—especially for UC and CSU universities with smaller athletic department budgets or less-endowed programs.  Considering UCLA’s athletic department accrued nearly “$102.8 million in debt over the last three fiscal years,” the extended use of private funding to play in the Big Ten may present more of a problem than a solution.[14]  But there’s a bigger issue that all the private funding in the world cannot address.  While public universities are prohibited from using state-funds for travel to a banned state, those banned states—such as Indiana, Iowa, and Ohio—are directly impacted by the prohibitions as well.  Thus, entangled in this discussion is a larger looming legal question: is AB 1887 an undue burden on interstate commerce?  

The Commerce Clause to the United States Constitution designates Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States.”[15]  While the Commerce Clause only addresses the powers afforded to Congress, the Supreme Court has recognized that the Commerce Clause, in its effect, limits states from enacting legislation that affects interstate commerce.  This limitation is known as the Dormant Commerce Clause (“DCC”), which exists to preserve a free market of goods and services across state lines.[16]  Within the DCC, the extraterritoriality doctrine dictates that a state may not “regulate[] conduct that is wholly outside its own borders.”[17]  The rule is designed to prevent states from enacting “regulatory measures designed to benefit in-state economic [or political] interests by burdening out-of-state competitors.”[18]  In doing so, the DCC serves to safeguard the Nation’s economic welfare.

Applying the DCC to AB 1887, the water grows murky.  Citing itself as “a leader in protecting civil rights and preventing discrimination,” California passed AB 1887 to promote fairness and equality and to prevent discrimination based on sexual orientation, gender identity, or gender expression.[19]  Specifically, California expressed its contempt for states who use “[t]he exercise of religious freedom . . . [as] a justification for discrimination,” and vowed to avoid “supporting or financing discrimination against lesbian, gay, bisexual, and transgender people.”[20]  The travel ban serves this purpose by preventing state agencies and employees from using state funds to travel to states with laws that run afoul to California’s philosophies.  However, in exercising control over its state agencies and employees, California extends its regulatory powers beyond its borders and affects economic activity in other states.

For a state-implemented travel restriction to be effective, it typically needs to have some form of negative economic impact.[21]   While not all intercollegiate sports are revenue-generating, college football is a multi-million-dollar business.  By preventing public universities from using state funding to travel for athletic competitions, California deprives host universities and cities of the economic benefits derived from college football games.  The California Legislature acknowledged that its travel ban would primarily affect “businesses operating within” the impacted states, including “hotels, restaurants, taxicab companies, and airlines,” with “secondar[y] [e]ffect[s] [on] the state governments by the tax revenue that the business activities generate.”[22]  The consequences created by California’s travel ban affect other states’ businesses because these businesses would almost certainly lose money as a result of the restriction.[23] 

Using the Big Ten as an example, according to the Detroit News, each home game amounts to an approximate economic gain of “$12 million for University of Michigan, $15 million for Ohio State University, $16 million for University of Wisconsin and $16 million for University of Iowa” and their respective communities.[24]  As for the “college towns” built around these schools,[25] college football generates revenue from tourism and sales taxes, playing a crucial role in each community’s ability to support itself.[26]  For example, “[T]he Ohio State University alone is estimated to account for $31.9 million in state and local government revenue throughout Ohio,” and a larger percentage of gross domestic product in college town Iowa City, Iowa is derived from the hospitality industry than from the entire state.[27]  The resulting economic impact demonstrates “the fiscal influence that collegiate sports often have with governments” and communities.[28] 

California’s travel ban “impede[s] the free flow of interstate commerce” by restricting the exchange of goods and services in banned states in furtherance of the Legislature’s political agenda.[29]  True, any public university in California that is scheduled to play in a banned state can simply be replaced by another team, and thus the once “lost” revenue is recouped.  But what about the potential lost revenue for those California public universities?  For example, California State University, Fresno received $400,000 from the University of Mississippi to play a non-conference football game there in 2015, and an additional $1.4 million to play at the University of Alabama.[30]  For its commitment to play two games in Alabama, San Jose State University received an astounding $3.1 million.[31]  And yet, because of California’s travel ban, these partnerships may not be feasible in the future unless California public universities can arrange for private travel funding.[32] 

AB 1887 isn’t new, but with UCLA’s recent realignment with the Big Ten, its existence is more visible now than ever before. In the end, the mere possibility of economic loss and the complications associated with securing private funding reveals the problematic nature of California’s travel ban, regardless of the loopholes which may exist. Without getting into the level of judicial scrutiny this law could be subject to, legitimate arguments in opposition of AB 1887 may be made.  For example, in February 2020, Texas sued California, alleging California “enacted and is enforcing economic sanctions against Texas, Texas citizens, and Texas businesses” in violation of the Constitution’s Interstate Commerce Clause.[33]  While the Supreme Court ultimately declined to review Texas’ challenge, other states—specifically, those with ties to the Big Ten—may be better equipped to make a viable claim.[34] 

UCLA’s future in the Big Ten remains uncertain. With California Gov. Gavin Newsom demanding an explanation for UCLA’s decision to leave the Pac-12 and the UC Board of Regents exploring the possibility of “blocking” the realignment, it appears that California won’t go down without a fight—AB 1887 simply poses another hurdle for UCLA to overcome.[35]

[1] Joseph Zucker, USC, UCLA Announce Move to Big Ten from Pac-12 Beginning in 2024, Bleacher Rep. (June 30, 2022), https://bleacherreport.com/articles/10040548-usc-ucla-announce-move-to-big-ten-from-pac-12-beginning-in-2024.

[2] Abigail Gentrup, UCLA Move to Big Ten Might Save Sports from Being Cut, Front Off. Sports (July 6, 2022, 2:14 PM), https://frontofficesports.com/ucla-move-to-big-ten-might-save-sports-from-being-cut/.

[3] Cal. Gov’t Code § 11139.8 (West 2017). 

[4] Id.; see also Prohibition on State-Funded and State-Sponsored Travel to States with Discriminatory Laws (Assembly Bill No. 1887), Cal. Dep’t of Justice, Off. of Att’y Gen., https://oag.ca.gov/ab1887 (last visited Aug. 11, 2022). 

[5] Gov’t § 11139.8(b).

[6] See About, Big Ten Acad. All., https://btaa.org/about (last visited Aug. 11, 2022).

[7] Big Ten Conference Releases 2022 Football Schedule, Big Ten Conf. (Jan. 12, 2022, 12:00 PM), https://bigten.org/news/2022/1/12/big-ten-conference-releases-2022-football-schedule.aspx.  The two divisions are the Big Ten East and West, respectively. Id.

[8] Id.

[9] Mark Ziegler, SDSU Will Keep Playing Boise State Despite Idaho Landing on California’s Travel Ban List, S.D. Union Trib. (July 4, 2020, 1:36 PM), https://www.sandiegouniontribune.com/sports/aztecs/story/2020-07-04/san-diego-state-sdsu-aztecs-idaho-california-travel-ban-ab-1887-transgender-law-discrimination.

[10] Id.

[11] Methodology for 2019 NCAA Athletic Department Revenue Database, USA Today (Aug. 4, 2021, 11:19 AM), https://www.usatoday.com/story/sports/college/2021/08/04/2019-ncaa-athletic-department-revenue-database-methodology/5482815001/.

[12] See Ryan Leou, UC Assembly Bill 1887 Affects UCLA Travel to States with Discriminatory Laws, Daily Bruin (Feb. 26, 2017, 9:51 PM), https://dailybruin.com/2017/02/26/assembly-bill-1887-affects-ucla-travel-to-states-with-discriminatory-laws (“UCLA and Cal ended talks for lucrative men’s basketball series against North Carolina and Kansas, respectively, after the law was enacted.”).

[13] Jon Wilner, Hotline Mailbag: WSU and OSU on the Brink, Why Oregon Got Left Behind and Loads More, KSL.com (July 8, 2022, 10:40 AM), https://www.ksl.com/article/50436790?utm_source=twitter&utm_medium=social&utm_campaign=sports&utm_content=pac12.

[14] Gentrup, supra note 2.

[15] U.S. Const. art. I, sec. 8, cl. 3.

[16] See Tommy Tobim & Andrew Kline, A Sleeping Giant: How the Dormant Commerce Clause Looms Over the Cannabis Marketplace, Yale Pol’y & L. Rev. (Jan. 3, 2022, 10:45 AM), https://ylpr.yale.edu/inter_alia/sleeping-giant-how-dormant-commerce-clause-looms-over-cannabis-marketplace.

[17] Susan Lorde Martin, The Extraterritoriality Doctrine of the Dormant Commerce Clause is Not Dead, 100 Marq. L. Rev. 497, 501 (2016).

[18] Levon Kalanjian, The Beginning of an Economic Civil War: The Unconstitutionality of State-Implemented Travel Bans, 22 U. Pa. J. Const. L. 409, 425 (2020).

[19] See generally Cal. Gov’t Code § 11139.8 (West 2017).

[20] Id. § 11139.8(a)(1), (a)(4), (a)(5).

[21] Kalanjian, supra note 18, at 429.

[22] Bill Analysis of AB 1887, State of Cal. Assembly Comm. on Judiciary (Apr. 1, 2016), https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=201520160AB1887 (choose “04/01/16 – Assembly Judiciary” hyperlink).

[23] See Kalanjian, supra note 18, at 429.

[24] Pat Evans, College Football Economic Impacts Vary, True Figures Hard to Determine, Front Off. Sports (Aug. 12, 2020, 8:06 PM), https://frontofficesports.com/college-football-economic-impact/.

[25] Austin Carmody, What is a College Town? (Here’s What You Need to Know), OutScholar, https://outscholar.com/what-is-a-college-town-heres-what-you-need-to-know/ (last visited Aug. 4, 2022).

[26] Christian Collins, Local Budgets are Desperate for College Football, but COVID-19 is Blocking the Goal Line, Urban Inst. (Sept. 9, 2020), https://www.urban.org/urban-wire/local-budgets-are-desperate-college-football-covid-19-blocking-goal-line.

[27] Id.

[28] Id.

[29] Kalanjian, supra note 18, at 428.

[30] Id. at 424.

[31] Id.

[32] Id.

[33] Mot. to Leave to File a Bill of Compl., Bill of Compl., Br. In Supp., at 1-2, Texas v. California, 141 S. Ct. 107 (2020) (No. 22O153), https://www.scotusblog.com/wp-content/uploads/2020/06/20200210120117146_Texas-v.-California-Motion-for-Leave-to-File.pdf.

[34] Texas v. California, 141 S. Ct. 1469, 1469 (2021).

[35] See, e.g., Paolo Uggetti, California Gov. Gavin Newsom Demands UCLA Explain Publicly How Leaving Pac-12 for Big Ten is Beneficial, ESPN (July 20, 2022), https://www.espn.com/college-football/story/_/id/34273667/california-governor-gavin-newsom-demands-ucla-explain-how-leaving-pac-12-big-ten-beneficial;  Ben Bolch & Teresa Watanabe, UC Leaders Say ‘All Options are on the Table’ as They Weigh Fighting UCLA’s Big Ten Move, L.A. Times (Aug. 17, 2022, 9:23 PM), https://www.latimes.com/sports/story/2022-08-17/ucla-big-ten-move-uc-impact.