It's probably not an issue front and center on many football fans' minds this NFL-laden weekend, but Utah Attorney General Mark Shurtleff is drawing attention with his threat to challenge the legality of college football's BCS [Bowl Championship Series*] under the Sherman Antitrust Act. On Friday the Salt Lake Tribune editorial page criticized Shurtleff's efforts as a waste of taxpayer dollars, to which Shurtleff responded yesterday on his blog (yes, the attorney general of Utah has a blog).
Shurtleff isn't the first politician to take aim at the BCS, of course, and suspicion is warranted when it comes to elected officials' efforts to shape college sports through litigation. For one thing, as often as not, groups that claim they will suffer as a result of the structure of college sports end up benefiting, and vice versa. You may recall that back in 2003, when Virginia Tech, Miami, and Boston College left the Big East conference to join the ACC, Connecticut Attorney General Richard Blumenthal spearheaded a lawsuit accusing the three schools of conspiring to weaken the Big East. It's true, the conference was weakened (well, in football, anyway)--but, paradoxically, the ultimate effect has been to benefit the Big East immensely. The remaining schools are guaranteed one BCS berth among them, giving formerly mediocre teams like Cincinnati the chance to increase their visibility, boost recruiting, and score a major payday simply by having a halfway decent season. And it puts Big East schools in position to play for a national championship if they can make it through the conference undefeated--like West Virginia would have done in 2007 had it not pulled one of the biggest choke jobs in recent memory.
That said, it's pretty clear that (this year, at least) Utah got shafted. And Shurtleff's case doesn't seem to be facially frivolous. In 1984, the Supreme Court ruled in NCAA v. Board of Regents of the University of Oklahoma that the Sherman Act applies to the NCAA. The BCS, like the TV agreement at issue in that case, uses anti-competitive practices to benefit its members. As sports law expert Martin Edel explains to the Wall Street Journal's Dan Slater, to prevail in a lawsuit Utah (or any other plaintiff) would have to win a balancing test--that is, by showing that the anti-competitive effects of the BCS outweigh its pro-competitive effects. (So, luckily for sports talk radio, on this question, any college football fan is essentially qualified to offer relevant legal analysis.)
There is an argument that can be made in this vein against the BCS--but the problem for Utah is that it doesn't happen to correspond to their particular grievance this year. Utah's current beef is that it was excluded from the national championship game despite its undefeated record. But, critically, in the context of the national championship game, the BCS doesn't discriminate against Utah or other members of non-BCS conferences. The national championship game matches the top two teams in the country, regardless of what conference they come from. (Granted, because of the objectively weaker schedules they play, it's practically impossible for non-BCS schools to make the national championship game--but that's not because the BCS discriminates against non-BCS schools as such.) Consequently, as SMU law professor C. Paul Rogers III noted in a 2008 article in the Marquette Sports Law Review (not available on the web, as far as I can tell), it's unlikely a plaintiff could demonstrate that the BCS's conduct (as opposed to the conference structure of college football more generally) serves to exclude non-BCS schools from the championship game, which would be required under the Sherman Act.
Where the BCS might have an antitrust problem is when it comes to the four non-championship BCS games (the Rose, Fiesta, Sugar, and Orange Bowls). It's in that context that the BCS is discriminatory: non-BCS schools must be ranked in the top twelve in order to earn a bid to one of those bowls, while the champion of each BCS conference gets a bid automatically, regardless of how bad they are. In 2004, for instance, an undeserving Pitt team received a bid to the Fiesta Bowl despite being ranked 21st in the nation.
This arrangement would presumably violate the Sherman Act if a court were to deem its anti-competitive effects to outweigh its pro-competitive effects. There's a strong case to be made that the BCS as originally conceived in 1998 had such strong anti-competitive effects as to run afoul of the Sherman Act. But when the BCS was modified in 2005 (in large part, as a response to the threat of an antitrust suit on the part of non-BCS schools), it made it much easier for non-BCS schools to qualify for BCS games, evidenced by the appearance of Boise State in the 2007 Fiesta Bowl, Hawaii in the 2008 Sugar Bowl, and Utah in the 2009 Sugar Bowl. Is it really that much harder for an outstanding team from a non-BCS conference to earn a trip to a BCS bowl, compared to an equally good team from a BCS conference? Probably not. So it would seemingly still be difficult to demonstrate that the BCS, as currently constituted, violates the Sherman Act.
That's not to say it can't be done. Over the long haul, the BCS certainly disadvantages members of non-BCS conferences by denying them access to BCS revenue year in and year out, which flows to all members of BCS conferences, even bad teams. Whether that's sufficient to outweigh the benefits of the BCS--and precisely what those benefits are--is open to debate. But it's very hard to see how Utah's (entirely valid) grievance this year, concerning the national championship game, could possibly be remedied by antitrust law. If the federal government is going to use its leverage to force college football to adopt a playoff system, it's going to have to be through new legislation, not an existing statute.
--Josh Patashnik
* updated
Photo used under a Creative Commons license from qbac07.
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COMMENTS (7)
Not to be dense, but what's BCS?
Not to be dense, but what's BCS?
Bowl Championship Series
Bowl Championship Series
Aeromanas,
The BCS is the Bowl Championship Series, an alliance of the four largest and most important Bowls in College Football, the Orange Bowl in Miami, FL, the Sugar Bowl in New Orleans, LA, the Fiesta Bowl in Phoenix, AX, and the Rose Bowl in Pasadena, CA. In addition to those four bowl games, they have an additional game, entitled the "BCS National Championship Game." These Bowls match up the College Football Teams that win the Championships of the Six Affiliate Conferences, The Big East (centered in the North East), Big Ten (Centered in the Great Lakes Region), Southeastern Conference, Atlantic Coast Conference (Southern Coastal and Mid Atlantic States), Bi ... view full comment
Aeromanas,
The BCS is the Bowl Championship Series, an alliance of the four largest and most important Bowls in College Football, the Orange Bowl in Miami, FL, the Sugar Bowl in New Orleans, LA, the Fiesta Bowl in Phoenix, AX, and the Rose Bowl in Pasadena, CA. In addition to those four bowl games, they have an additional game, entitled the "BCS National Championship Game." These Bowls match up the College Football Teams that win the Championships of the Six Affiliate Conferences, The Big East (centered in the North East), Big Ten (Centered in the Great Lakes Region), Southeastern Conference, Atlantic Coast Conference (Southern Coastal and Mid Atlantic States), Big Twelve (Texas, Oklahoma, and the Great Plains States) and Pacific Ten. In addition, four at large teams are invited at the discretion of the four bowls themselves. One team from outside the Conferences is invited if it is within the top 12 of the rankings. The teams, which are ranked #2 and #1 in the Country by a combination of the USA Today Coaches Poll, Harris Poll, and Computer Ranking Systems, are matched in the Championship Game with the winner crowned as the National Champion.
This has come into much controversy, because as parity has come to College Football there are many times that teams with similar records have been excluded. Many times, including this year, a one loss team ends up in the Title Game while another is excluded, and with the proliferation of talk radio and sports media, fed on by people who argue for a playoff, find their grudges nurtured ad infinitem in the media. (See, for example, Texas this year). It also runs into controversy because teams from smaller conferences, like Utah this year, Boise State in 2006, and so on, are excluded from the National Title Game despite not losing any of their games. In practicality, it means that BYU, who won the 1984 National Title, will likely be the National Champion outside the BCS Conferences and Notre Dame. (This was, of course, not a regular occurrence before the BCS anyway. The last time a team not currently in a BCS Conference was Army, in 1944.) Indeed, the BCS places the "mid-majors" in more important bowls than they likely would have in years past. BYU, for example, won their national title in the Holiday Bowl, which is now considered a second tier bowl. Utah, Boise State, and Hawaii have been in the Fiesta and Sugar Bowls in recent years, very high publicity Bowl Games. So, it's a mixed bag on success. There was a terrific article in TNR a few years ago essentially arguing against all the hype of a national champion to begin with. I share its sentiments.
The problem is that there is a BCS at all - that non profit and public institutions (colleges and universities) are running for-profit sports franchises completely unrelated to their charters. But even that is not the real problem - the real problem is that a large fraction of the citizenry who should care deeply about the quality of their post secondary education institutions, don't give a damn about the real purpose of these schools, they only care that their team gets into the BCS or Final Four, and think of these schools as sports teams first, last and always.
Sheesh.
The problem is that there is a BCS at all - that non profit and public institutions (colleges and universities) are running for-profit sports franchises completely unrelated to their charters. But even that is not the real problem - the real problem is that a large fraction of the citizenry who should care deeply about the quality of their post secondary education institutions, don't give a damn about the real purpose of these schools, they only care that their team gets into the BCS or Final Four, and think of these schools as sports teams first, last and always.
Sheesh.
crock good rundown. I would like to see a playoff system as well, students are not in school now because of Winter break so it shouldn't cut into their studies, but the idea that this can be brought about by politicians using the courts is nuts, get over it Utah
crock good rundown. I would like to see a playoff system as well, students are not in school now because of Winter break so it shouldn't cut into their studies, but the idea that this can be brought about by politicians using the courts is nuts, get over it Utah
Good to see TNR weighing in on matters of real importance. I'd agree that the Utah AG is wasting his taxpayers money here, though.
"Is it really that much harder for an outstanding team from a non-BCS conference to earn a trip to a BCS bowl, compared to an equally good team from a BCS conference?"
No, but it is harder for an outstanding team from a non-BCS conference to earn a spot than it is for a mediocre Big East or ACC champion. The top part of the Mountain West (Utah, TCU, BYU, Air Force) outperformed the top of the Big East and the ACC (and maybe even the Big Ten). So the system would be fairer if conferences could be demoted with a few years of poor performance.
Otherwise, the ... view full comment
Good to see TNR weighing in on matters of real importance. I'd agree that the Utah AG is wasting his taxpayers money here, though.
"Is it really that much harder for an outstanding team from a non-BCS conference to earn a trip to a BCS bowl, compared to an equally good team from a BCS conference?"
No, but it is harder for an outstanding team from a non-BCS conference to earn a spot than it is for a mediocre Big East or ACC champion. The top part of the Mountain West (Utah, TCU, BYU, Air Force) outperformed the top of the Big East and the ACC (and maybe even the Big Ten). So the system would be fairer if conferences could be demoted with a few years of poor performance.
Otherwise, the problems with the system are the fact that the rewards for feasting on non-conference cupcakes are too great compared to the rewards for playing good non-conference teams (when you might lose), and the fact that the poll voters don't seem to watch any games played west of the Central time zone.
Crock -- I agree with Brockton, nice summary. Some additional info on
the 1984 season: BYU beat a mediocre Michigan team in the 1984 Holiday
Bowl, with a touchdown near the end of the game. They were voted #1
in many (but not all) polls because they were undefeated, not because
the Holiday Bowl was a top-tier bowl (it definitely wasn't). As I
recall, BYU didn't beat any team ranked in the final top 20 (or top 25,
depending on the poll), and I think many thought that both Washington
and Oklahoma, who faced each other in the Orange Bowl, were better
teams (Washington won 28-17). That 1984 season helped in the push
toward our current system.
Crock -- I agree with Brockton, nice summary. Some additional info on
the 1984 season: BYU beat a mediocre Michigan team in the 1984 Holiday
Bowl, with a touchdown near the end of the game. They were voted #1
in many (but not all) polls because they were undefeated, not because
the Holiday Bowl was a top-tier bowl (it definitely wasn't). As I
recall, BYU didn't beat any team ranked in the final top 20 (or top 25,
depending on the poll), and I think many thought that both Washington
and Oklahoma, who faced each other in the Orange Bowl, were better
teams (Washington won 28-17). That 1984 season helped in the push
toward our current system.