The Problem With Utah's Bcs Antitrust Claim

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THE PLANK JANUARY 11, 2009

The Problem With Utah's Bcs Antitrust Claim

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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