The Baylor Problem: An argument Ken Starr cannot win

By Brandon Jones and Thad Norvell

Give Ken Starr credit: The Baylor President hasn't forgotten what matters to Texans, namely football and Texas. In his relentless campaign to keep Baylor in a relevant Big 12 — or in some other conference where there are piles of money — Starr has suggested that the state religion is in danger of being loaded up and shipped east. Or west. Or, God help us, anywhere but Texas.

Case in point: In his September 12 column in the Houston Chronicle, Starr laments, "the football programs of our beloved Texas institutions are about to become exported commodities, competing in different national athletic conferences."

Starr does know a thing or two about exporting and higher education. A born-and-raised Texan, Starr earned three academic degrees, all of them from east coast universities. Certainly no one should fault him for pursuing his education at those fine institutions — George Washington, Brown, and Duke — even though they are not technically Texas universities. As a young Texan, Starr made choices that seemed most beneficial to his future. No one would suggest that he did so to scorn or disregard his friends and family in the Lone Star State. He did what was best for Ken Starr because that was the purpose of his education, no matter how much he loved Texas and Texans. And he remained a Texan, no matter where he made new friends or how many decades he spent living in the Northeast.

A Texas resident once again, Starr continues to argue publicly that the imminent changes in the Big 12 will tear at the fabric of the state. Outside of Waco, his appeal is registering somewhere between flat and counterproductive for many reasons, but two stand out: It seems disingenuous; and it is illogically dismissive of the central issue for any university when it comes to conference alignment — doing what is best for the university.

Starr's personal exodus to affiliate himself with non-Texas schools aside, the campaign he and Baylor have conducted to "save Texas football" fails the smell test. Baylor criticizes Texas A&M and other Big 12 schools for being lured away by the appeal of more money yet refuses to acknowledge what everyone knows — money, not tradition or state loyalty, is clearly at the core of Baylor's present desperation.

Not sure? Sit down with a graduate of SMU, TCU, U of H or Rice and ask them how much Baylor cares about sustaining Texas football tradition. Or better yet, ask Thomas R. Powers, a longtime Baylor booster who was Chairman of Baylor's Board of Regents in 1994 when the Big 12 was being formed and Baylor was playing every political and legal card they had to squeeze their way into the new conference.

With UT, A&M and Tech mulling the Big 8's offer, Baylor bolted first, far less concerned about the effect on Texas football than they are these days. As folks wondered about tradition and what would become of the other Texas schools, Powers said, "We certainly wish those who did not receive an invitation well. I feel sure they are fine institutions and they will find a place in some other program that will be appropriate for them."

Those other options were not deemed "appropriate" for Baylor in 1994. They were not deemed appropriate for Baylor in 2010, as it spent the summer conference shuffle (that almost was) not fighting for Texas football but for a spot in the Pac-16 that almost was. Or, if you will, attempting to become one of the "beloved Texas institutions" that would "become exported commodities, competing in different national athletic conferences." The record on that is clear, with emails from powerful Baylor regent Buddy Jones disclosing Baylor's efforts both to make sure it was a "package deal" with other Big 12 schools and to "sink" Colorado's efforts to take the sixth spot in that package.

And in 2011, the mantra in Waco is that they still belong with the big boys. Texas tradition demands it, we're told, and Baylor deserves it. We'll evaluate that suggestion momentarily.

Solemn agreements

TexAgs Beebe and the Big 12's Board of Directors themselves consented to A&M's exit, ultimately seeing the school's intent to exit respectfully and according to its agreement. {"Module":"photo","Alignment":"right","Size":"large","Caption":"Beebe and the Big 12\u0027s Board of Directors themselves consented to A&M\u0027s exit, ultimately seeing the school\u0027s intent to exit respectfully and according to its agreement.","MediaItemID":9288}

Before we consider Baylor's place at the table, Starr's chief complaint — that any exiting member is violating "solemn conference agreements signed in good faith by all current members of the Big 12 Conference," which Starr cites as "the heart of [Baylor's] concern" — merits some closer examination. Texas A&M maintains that it has not signed any agreement with the Big 12 since the departures of Nebraska and Colorado (or for some time prior), a claim Starr has failed to counter with anything but vague notions of solemn agreements.

Texas A&M did sign, years ago, the Big 12 Conference Bylaws. Those bylaws clearly specify the "liquidated damages" a member institution must pay if departing before the end of a specified term. On August 24, A&M President Bowen Loftin requested clarification from the Big 12 Board of Directors regarding the proper procedures should A&M choose to withdraw from the conference. Loftin wrote, in part, "If Texas A&M withdraws from the Conference, we want to do so in a way that complies with the bylaws and is supportive of your efforts to seek a new member of the Conference. We would appreciate your conferring with the other member institutions and outlining for us the process to be followed by Texas A&M should it withdraw from the Conference."

In a letter obtained by TexAgs.com dated August 28, Big 12 Commissioner Dan Beebe replied to Loftin on behalf of the Board (which includes Starr) indicating, "Under Section 3.3 of the Bylaws, if any member '...gives notice or otherwise states its intent to so withdraw, resign, or cease to participate in the future' as of a date that is earlier than June 30, 2016, then the financial provisions of Section 3.3 of the bylaws will apply." In other words, Section 3.3 of the Big 12 bylaws — the solemn agreement each member school has signed — anticipates the possibility of a member withdrawing and provides guidelines for that event. Solemn, agreed-upon guidelines.

Beebe's letter goes on to state that, "If Texas A&M makes the decision to notify the Conference that it is withdrawing from the Conference, then your fellow Directors have indicated their strong desire to engage with you in a process of ending that relationship as amicably as possible. In such event, they are willing to engage in a dialogue with you to explore the parameters of a mutually-agreeable agreement on the terms and conditions of Texas A&M's withdrawal from the Conference considering all relevant facts and circumstances, which could include discussion of mutual waivers of legal claims (emphasis ours). We would be prepared to commence and hopefully successfully conclude these negotiations as expeditiously as possible after receipt of your notice of withdrawal."

It is well documented that five days later Beebe notified SEC Commissioner Mike Slive that the Big 12 Board of Directors had "unanimously authorized" him to convey to Slive "that the Big 12 and its members" (emphasis ours) would not take any legal action against the SEC or SEC member schools as a result of A&M's decision. The August 28 letter is an interesting new piece to the legal waiver puzzle, as it further unravels the suggestion made by Beebe after Baylor backtracked that his September 2 letter was the result of confusion.

The chronology is clear. As of August 28, all members, including Starr and Baylor, had discussed the exit procedures for A&M — including the possibility of legal waivers. By September 2, those members had unanimously authorized Beebe to assure Slive and his twelve SEC institutions that all Big 12 members, including Starr and Baylor, would, in fact, waive their right to legal claims beyond the parameters of Section 3.3 of the Big 12 Bylaws. Apparently for Ken Starr that agreement was something less than solemn, a relevant fact given Starr’s ongoing pious posturing regarding the "heart" of Baylor's concern. The catch, of course, is that Baylor signed no such agreement, leaving Beebe to backpedal and suggest the September 2 letter represented a miscommunication.

SI.com Starr has been working overtime to stall A&M’s move to the SEC. {"Module":"photo","Alignment":"left","Size":"large","Caption":"Starr has been working overtime to stall A&M’s move to the SEC.","MediaItemID":10301}

So we can assume only that the lack of a signature is the justification for Baylor's reversal of field. And that's fine. It simply further nullifies Starr's assertion that A&M is violating any "solemn agreements." A&M signed bylaws that:

- anticipate a premature departure,

- guided the premature departures of Nebraska and Colorado, and

- Beebe and the Big 12 Board of Directors cited on August 28 as the proper guide for A&M's departure.

A&M is doing exactly what it solemnly agreed to do — following the procedures in the Big 12 Bylaws for a premature exit under the oversight of the Big 12 Board of Directors. And despite Beebe's assurance that the Board desired to chart a course for A&M's withdrawal that was quick and amicable, it appears that too was an agreement Starr determined to be less than solemn. (Note to future Baylor conferencemates dealing with Ken Starr: Make it solemn. Get it signed.)

A place that will be appropriate for them

The legal talk eventually bores many of us, and even an accomplished attorney like Starr knows that. That's why he continues to appeal to the tradition and history of Texas football in his efforts to salvage the Big 12. And that would be fine — perhaps even effective — if the institution he leads had made itself a meaningful part of that tradition since being given that opportunity the last time progress trumped history in Texas conference alignment.

In 15 years of playing in the Big 12, Baylor has won 18 conference football games. Of their 45 games against Texas schools in the Big 12, the self-appointed guardians of Texas football have won exactly four. In 11 of those 15 seasons Baylor has won no more than one Big 12 game, four times finishing 0-8. Baylor has never beaten two Texas Big 12 teams in one season, never finished better than .500 in conference and has had exactly one season over .500 overall — a 7-6 record in 2010.

Perhaps Baylor's campaign to save Texas and Big 12 football should have begun in 1996 when it started playing Big 12 football games. Instead it is being waged with threats of lawsuits, newspapers columns, and trips to D.C., not on the football field.

Sure, some will say this is about more than football. We simply defer to Mr. Starr and Baylor's Don't Mess with Texas™ Football Rise Up for Texas Football campaign. The other sports matter, yes. They just don’t matter the same, and everyone knows it.

It also is fascinating that Starr is trying to inspire the state of Texas and the Big 12 to do what he cannot get his own fan base to do when it counts — support Baylor football in a manner appropriate for a Big 12 program. Baylor has averaged fewer than 36,000 fans per game over the last seven seasons, infamously covering 4,000 seats with a tarp to make the 50,000 seat Floyd Casey Stadium appear less empty.

This season, with all indications that Baylor is fielding its best team in two decades, the excitement of a Heisman hopeful in quarterback Robert Griffin and the need to show it belongs in an elite conference more pressing than ever, the script seems unchanged even still. A season-opening nationally televised matchup against a ranked TCU team (who one assumes brought some fans of their own from nearby Ft. Worth) drew only 43,753 — the smallest crowd for any Big 12 home opener — and failed to displace the tarp.

Andrew Kilzer, TexAgs Head coach Art Briles trying to get the Baylor program back on track. {"Module":"photo","Alignment":"right","Size":"large","Caption":"Head coach Art Briles trying to get the Baylor program back on track.","MediaItemID":2765}

And that's at home. Ticket sales for away games — even nearby games against hated opponents like A&M — are painfully low. Paul Meyerberg has a helpful summary of that situation here, but we will refrain from rehashing the details.

The truth is unavoidable. Baylor has spent 15 seasons on the favorable end of a very unbalanced relationship between itself and the Big 12 conference. In the last dozen years, Baylor's share of an almost $400 million pool of conference bowl payouts has exceeded $30 million. Their total contribution to that pot over the life of the Big 12 is less than $800,000, the result of their 2010 Texas Bowl appearance. In other words, Baylor has accounted for roughly 0.2 percent of Big 12 bowl earnings while receiving a full member share each year.

Baylor is not a bad school, and it does not have to be a bad football program. Perhaps if they had joined TCU and the others in 1994 and found a conference more appropriate for them, the last 15 years of Baylor football would be more compelling. What it would not be is more lucrative. And that's the point.

This is not about Texas tradition, preserving rivalries, or the fabric of the state. It is about money, not just for Texas A&M or the University of Oklahoma, but for everyone.

Including and especially Baylor.

The goal — in 1994, 2010, and 2011 — was and is to keep Baylor tethered to schools from whom it derives immense financial benefit. Perhaps Mr. Starr's many years elsewhere caused him to forget, but in Texas that kind of relationship — and brazen desperation to cling to it at all costs — is often described as positioning oneself at the furthest removed feeding quadrant. Or something like that.

Baylor is trying to do what's best for Baylor. We get it, and frankly we don't blame them for that. What we do object to is the hypocritical suggestion that other Big 12 members are substandard Texans and promise-breakers, particularly given both Starr's and Baylor's long-standing record in both areas. And try as he may, Starr cannot maintain the illusion of noble Texas patriot while demanding a permanently endowed chair at a table that has fed his family well for 15 years despite their inability to contribute to the grocery budget.

The jig is up, Judge Starr. You can hire every lawyer and lobby every Senator from Waco to Washington D.C. and it will not change the truth. Baylor is a "fine institution" that needs to find a conference "that will be appropriate for them."