By Joseph M. Hanna and Matthew V. Bruno
In the current economic climate, the financial well-being of colleges and universities that do not participate in the Bowl Championship Series (“BCS”) is likely not a primary concern for most Americans. Yet for collegiate football enthusiasts, many Universities, Congress, and even President Obama,[1] the issue of whether nearly half of all collegiate football teams are left a competitive disadvantage when it comes to qualifying for millions of dollars paid out every year, is generating heated debate. In fact, fans and politicians alike even argue that the current BCS system violates Federal Antitrust laws. This article examines the latter claim.
Collegiate Football and the Antitrust Laws
Any discussion dealing with the issue of whether the current BCS system violates Federal antitrust laws must invariably start with an analysis the Sherman Antitrust Act (“Sherman Act”)[2] and its companion legislation, the Clayton Act of 1914 (“Clayton Act”). The text of the Sherman Act provides that “every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States…is declared to be illegal.”[3] It also holds that “every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States…shall be deemed guilty [. . . ].”[4]
The Clayton Act extended the right to sue under the antitrust laws to “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws.”[5] The purpose of the Sherman Act is to prevent or suppress practices that create monopolies or restrain trade[6] and seeks to prohibit conduct that unfairly tends to destroy economic competition.[7]
As a practical mater, any plaintiff bringing suit under the Sherman Act must not only argue that the scope of the Sherman Act will apply, but also that they have standing to bring suit.[8] In effect, the aggrieved party must prove that the restraint of trade affects interstate commerce. In Standard Oil Co. v. United States, the Supreme Court determined that the language of §1 of the Sherman Act was not intended to bar all contracts that restrain trade, but was instead designed only to bar those contracts that illustrated restraints of trade deemed “unreasonable.”[9] Section 2 of the Sherman Act seeks to prevent monopolization and attempts and conspiracies to monopolize the market.[10] In United States v. E.I. du Pont de Nemours & Co., the Supreme Court defined monopoly power as the power to control prices or exclude competition.[11]
Once it is determined that standing exists, courts will analyze a potential antitrust claim based on one of three levels of review: “per se,” “quick look,” or “rule of reason.”[12] Per se analysis is used for restraints that have “such predictable and pernicious anticompetitive effect, and such limited potential for pro-competitive benefit, that they are deemed unlawful ‘per se’.[13]
Alternatively, the rule of reason analysis is the standard most commonly used by courts when analyzing the antitrust implications of amateur athletics.[14] Under this test, as outlined in the Supreme Court case of NCAA v. Board of Regents of the Univ. of Okla.,[15] the Court held that “it would be inappropriate to apply a per se rule” for collegiate athletics[16] and instead relied on the rule of reason analysis.
The rule of reason analysis uses a three-prong test, which incorporates a burden shifting analysis.[17] First, a plaintiff must show that the alleged restraint creates actual “anticompetitive effects”.[18] Evidence of these effects includes higher than competitive prices, lower than competitive quality or quantity of goods (or product),[19] or both. After a plaintiff has made her prima facie case, the burden shifts to the defendant to show that the anticompetitive effects create pro-competitive benefits.[20] If the defendant can prove pro-competitive benefits, the burden shifts back to the plaintiff to show that the benefits could not be obtained through a less restrictive means.[21] Finally, the court will determine whether the pro-competitive aspects of the conduct justify the anticompetitive effects.[22] Before the rule of reason test is applied to the current BCS scheme, an overview of the BCS’s history is necessary.
The Evolution of Disparity
While the BCS officially began in 1998, bowl games had already been played for over a century. In 1894, for example, the University of Notre Dame played the University of Chicago.[23] Eight years after Chicago beat Notre Dame 8-0, Michigan and Stanford played each other in the Rose Bowl.[24] As the economic benefits of bowl games were realized by local officials and universities, additional games were organized.[25] Since the 1930s, the number of bowl games has increased to twenty eight,[26] allowing fifty-six Division I-A schools the opportunity to participate in post-season play. To ensure that the champions of certain conferences would experience increased post-season play, several conferences developed relationships with specific bowls.[27]
The first of these involved the Big Ten Conference and the Rose Bowl.[28] Beginning after the 1946 season, the Big Ten sent its conference champion to Pasadena every January 1st to play against the Pacific-10 conference (“PAC-10”) champion.[29] Similar relationships developed over the years between other conferences and other bowl games.[30] With the growth of these relationships, it became increasingly difficult to match champions from each of these conferences in bowl games.[31] As a result, the top two teams each year met only occasionally, and when they did, it was by happenstance.[32]
Consequently, a system of voting by members of the football community was developed to determine a “national” Division I-A collegiate football champion. This system of polling is not without controversy[33] and highlights the unconventional way in which Division I-A collegiate football postseason play is organized. For instance, “March Madness,” collegiate basketball’s post season championship series allows for relatively fair and open competition among different Division I-A schools while the BCS, it is argued, essentially predetermines its Elite Eight and Final Four.[34]
Over the years, despite several attempts to organize a national championship system in college football, Division I-A universities have failed to adopt any such proposal.[35] In fact, as late as 1994, a special committee selected to study whether a collegiate football championship system was possible, decided not to recommend any legislation to the NCAA President’s Commission.[36]
In an attempt to reconcile the opponents of a traditional playoff scheme[37] and to attempt to give collegiate football fans a national championship game, the BCS was formed. This was not the first time that attempts were made to allow the bowl game structure to pair top teams for a national championship team – the Bowl Coalition and Bowl Alliance previously tried to accomplish this during the 1990’s without success.
The Cotton, Fiesta, Orange and Sugar Bowls and their affiliated conferences[38] formed the Bowl Coalition with the intention of pairing conference champions against one another and to match other highly regarded teams.[39] However, the Bowl Coalition did not abolish the traditional relationships between certain bowls and certain conferences, therefore creating several flaws.[40] For example, the Big Eight champion continued to play in the Orange Bowl, the Southwest Conference champion continued to play in the Cotton Bowl, and the Southeastern Conference (“SEC”) champion continued to play in the Sugar Bowl, effectively preventing two top ranked teams in each conference from playing each other. [41] In addition, the Bowl Coalition consisted of only four conferences and the University of Notre Dame, preventing the possibility of match-ups between all Division I-A conference champions.[42]
Subsequently, the Bowl Alliance formed in 1995 as an agreement between the Fiesta, Orange, and Sugar Bowls with the Atlantic Coast Conference (“ACC”), Big East, Big 12 and SEC conferences, attempting to pair conference champions. In fact, the Bowl Alliance did allow for Nebraska and Florida (the two top teams ranked first and second, respectively) to play for a national title in the Fiesta Bowl.[43] This result was short-lived however, because over the course of the next few years, several schools were excluded from receiving an invitation to any bowl game, despite a better regular season record than schools who received an automatic bowl bid. For example, in 1996, BYU failed to receive a bid to the Fiesta, Orange, or Sugar bowls despite having a regular season record of 13 wins and 1 loss. In addition, Wyoming failed to receive an invitation to any bowl despite out-ranking the University of Texas which received an automatic Fiesta Bowl bid. Moreover, certain conferences refused to send their teams to certain bowls and other schools were simply excluded altogether.[44] In 1997, the Bowl Alliance was dissolved and the latest incarnation in the attempt to name an undisputed national collegiate Division I-A football champion was born: The Bowl Championship Series.
The BCS consists of four bowl games[45] that rotate annually as the host venue of the BCS Championship game.[46] The University of Notre Dame and the member universities of six conferences comprise the BCS.[47] The BCS standings are currently composed using the Harris,[48] Coaches[49] and computer ranking systems.[50] Under the Harris Interactive College Football Poll, a team’s score will be divided by 2,850 which is the maximum number of points any team can receive if all 114 voting members rank the same team as Number 1.[51] A team’s score in the USA Today Coaches Poll will be divided by 1,500, which is the maximum number of points any team can receive if all 60 voting members rank the same team as Number 1.[52] Finally, in the computer ranking system, points are assigned in inverse order of ranking from 1 to 25. A team’s highest and lowest computer ranking will be discarded in calculating its computer rankings average. The four remaining computer scores will be averaged and the total will be calculated as a percentage of one hundred.[53]
Under the current system, six of the eight slots in the BCS bowl games are reserved for the winners in each respective BCS conference.[54] As a result, the winners in each conference are guaranteed berths. While teams in the non-BCS conferences are not precluded from playing in the BCS Championship game, it is much more difficult for them to obtain a coveted spot. For instance, from 2008 until the 2013 regular season, the champions of the ACC, Big East, Big Ten, Big 12, Pac-10 and SEC conferences will have automatic berths in one of the participating bowls. The champion of Conference USA, the Mid-American Conference, the Mountain West Conference, the Sun Belt Conference or the Western Athletic Conference will earn an automatic berth in a BCS bowl game if either: (a) such team is ranked in the top 12 of the final BCS standings, or (b) such team is ranked in the top 16 of the final BCS standings and its ranking in the final BCS standings is higher than that of a champion of a conference that has an annual automatic berth in one of the BCS bowls. In addition to the automatic berths, any Division I-A school can technically receive a spot in a BCS bowl game if they have won at least nine regular season games and are ranked among the top fourteen teams in the final BCS standings.[55] On its face, this system appears to favor BCS schools; in its application, the system supports this assumption.
Take for example, BYU and Marshall in 2001, and Miami of Ohio, Boise State, and Texas Christian University in 2003. In 2001, BYU had a 12-1 regular season record and a better win-loss percentage than nearly all of the top ten ranked BCS teams.[56] Marshall University had a record of 11 wins and 2 losses in 2001 and 2002.[57] However, both Marshall and BYU were excluded from participating in a major bowl game because they were not members of the BCS and were not ranked in the top six in the final BCS standings.[58] Recently, the University of Utah Utes were left out of the BCS championship game for the second time in five years despite going undefeated during their regular season.[59] In response, Senator Orrin Hatch of Utah, the top Republican on the Senate Judiciary’s Committee on Antirust, Competition policy and Consumer rights, pushed for hearings on the antitrust effects of the BCS and vowed to “rectify the situation” with legislation.[60]
On January 29, 2010, The U.S. Department of Justice responded to Senator Hatch’s concerns regarding the fairness and legality of the BCS system.[61] In a four page letter to Senator Hatch, Assistant Attorney General Ronald Weich wrote that the Justice Department was reviewing the Senator’s request as well as “other materials” to determine whether to open an investigation into the possible illegality of the BCS.[62] Indeed, the Justice Department indicated that President Obama’s administration was “exploring other options that might be available to address concerns with the college football post-season” including asking the Federal Trade Commission to “examine the legality of the current system under consumer protection laws,” or asking a governmental or non-governmental agency to “study the benefits, costs, and feasibility of a playoff system.”[63]
The Anti-and Pro-Competitive Effects of the BCS
Of course, just because the current BCS bowl system is unfair, does not necessarily mean that it violates Federal antitrust law. There is much evidence to support the conclusion, however, that economic competition between BCS and non-BCS schools is restrained, if not completely stymied under the current regime.
In its current form, the BCS system substantially reduces competition among BCS schools at the expense of non-BCS schools.[64] First, non-BCS schools suffer when they do not receive the exposure that BCS conference teams receive under the current system. Consistently, recruiting suffers at non-BCS schools as there is unequal opportunity for participation in the BCS.[65] Second, as BCS conference teams earn guaranteed exposure, they are able to attract higher caliber athletes who seek the automatic exposure of a high profile BCS bowl game.[66] Athletes may decide not to attend a non-BCS school based purely on the fact that the school will not be eligible for BCS bowls.
In addition, the BCS creates financial injury to non-BCS schools. Anyone who has ever watched the Tostitos sponsored ‘Fiesta Bowl’ or the FedEx sponsored BCS National Championship can attest to the fact that college football is inextricably linked to commerce.[67] Modern amateur football has many aspects that commercialize the non-profit aspects of the game, and more specifically interstate commerce, as players, teams, and fans move from state to state in order to participate in the different bowl games and support their favorite teams. Revenue from bowl games can produce millions of dollars for universities each year.[68]
The financial spoils are not split evenly between BCS and non-BCS schools. In fact, in its limited existence, the BCS has helped distribute nearly half a billion dollars to its member institutions.[69] Under the BCS, about $9.5 million is distributed among Conference USA, the Mid-American, Mountain West, Sun Belt and Western Athletic Conferences for making their teams available to play in BCS games.[70] If a school receives an at large invitation to play in a BCS bowl or championship game, its conference receives an additional nine percent of BCS revenue to share, which comes from television rights and the bowls.[71] By contrast, the share to each BCS conference is automatically about $18 million each and when a second team from one of the conferences qualifies, the conference receives an additional $4.5 million.[72]
With this extra money, BCS schools are able to provide better facilities, can afford to purchase better equipment, and can attract better coaches.[73] Moreover, non-BCS schools often lose money by attending non-BCS bowl games, as the money they receive through conference sharing rarely covers the costs of participation in the non-BCS games.[74]
The main product derived from Division I-A collegiate football is the National Championship Game, and to a lesser extent, the regular football season. Under the current BCS regime, the quality of both products is lowered as the financial disparity between BCS and non-BCS schools continues. On a fundamental level, as collegiate football programs are forced to lose money, a self-fulfilling prophecy emerges when teams with less money to spend are deemed “worse” teams who cannot attract the best athletes and coaches. Moreover, the product of the regular season is undermined in terms of its overall quality as fans and players realize from before the very first kickoff, that the odds of appearing at a prestigious BCS Bowl game are stacked against them. Fewer potential fans means fewer ticket sales which, in turn, could mean the loss of football programs altogether.[75]
Clearly, the major product produced as a result of the BCS system is the national title game. This game produces the Division I-A National Champion which represents the best football program in the United States. Any argument that non-BCS conferences are free to establish their own “national champion” is without merit and unconvincing.[76] Of course, the current BCS system does not prevent the non-BCS schools from creating their own bowl champion, but in effect, the BCS holds the exclusive rights to crown a true “national champion”.[77] Any attempt to name a national champion outside the current BCS system (and through a different championship game) would belie the idea that one true national champion exists. Moreover, acceptance by the NCAA, the national media, and most importantly, the fans, would be difficult if not impossible.[78]
House member Joe Barton of Texas, the top Republican on the Energy and Commerce Committee, has taken this sentiment to the logical next step, and sponsored legislation that would prevent the NCAA from calling a football game a “national championship” unless the game culminates from a playoff system.[79] In the same vein, Representative Gregory Miller of California has introduced legislation to “prohibit the receipt of Federal funds by any institution of higher education that participates in the NCAA Division I Football Subdivision, unless the national championship game of such Subdivision is the culmination of a playoff system.”[80]
Finally, the argument that BCS teams are not legally obligated to “share” with non-BCS universities, is flawed.[81] While it is obvious that the BCS does not have to give non-BCS universities equal access to the fortunes made in sponsorships, contracts, and ticket sales, it must allow non-BCS the unfettered opportunity to freely compete without any barriers[82] which it currently does not.
There are clearly sufficient anticompetitive effects to cause the burden to shift to the BCS to argue the pro-competitive effects. The pro-competitive arguments include, inter alia, that any national champion is better than no national champion (which would decrease interest and revenues for BCS and non-BCS alike)[83] and that the National Championship in addition to the other BCS bowls, provide consumers (the fans) of collegiate football with a product not otherwise available through other bowl formats.[84] Assuming that the strength of this argument is sufficient enough to once again shift the burden to the plaintiff, less restrictive alternatives are available without losing fan interest or revenue.
A Less Restrictive Means
The most realistic and practical way to ensure that the ability of all Division I-A collegiate football squads to compete is not controlled or diminished, is to create an entirely new system that reduces the anticompetitive restrictions caused by the BCS.
The first step would be to create a modified regular season and get rid of the current tripartite ranking system.[85] The new regular season would run from the last weekend in August through the last weekend in November with a maximum of eleven games per school, including conference championship games. On the final Sunday in November, an NCAA selection committee would meet to organize twenty-four teams for post-season play, just as is done for the NCAA basketball tournament in March. The eleven Division I-A conference champions will receive automatic berths to a champion game and the selection committee will choose thirteen at-large teams and will seed them in a single-elimination bracket. The top eight seeds will receive first-round byes and the next eight seeds must play in the first round but get home games. The only rule for bracketing would be to avoid conference match-ups in the first two rounds.
For travel, ticketing and academic purposes, a week could be added between the end of the regular season and the start of the tournament. Teams with first-round byes would have three weeks to prepare for their game and sell tickets. That also gives players more time to study for final exams, which generally fall in the first half of December at most schools.
The quarterfinals, semifinals and final would all be played at neutral sites and the current BCS bowls would be in the mix, along with the other non-BCS bowls. The venues could rotate hosting the various rounds, getting the championship game once every seven years. Games would be played on Friday nights and Saturdays in the first four rounds and the championship game would be in January.[86]
One of the arguments against a playoff system, particularly one defined by a twenty-four team tournament, is that it would extend the season too long. The system outlined above eliminates this concern, as the most any team could play under this system is sixteen games; eleven games in the regular season and five in the playoffs if it didn’t get a first-round bye.
While it would be difficult to determine what revenue a collegiate football playoff system could generate, it could very well be significantly more than the current system.[87] For instance, in the playoff system, not only would fans be concerned with their particular team’s records, but fans would be interested in the games of each team that their team played. As a result, this would lead to higher television viewership and potentially more ticket sales throughout the season, which would in turn increase revenues for advertisers.
Half of the revenue could be divided amongst all Division I-A schools. The other half could be distributed based on how far a conference’s teams progress in the tournament.[88] Universities and advertisers would undoubtedly benefit, but the biggest winners of all, of course, would be collegiate football fans.
Conclusion
The BCS generates revenue for participating schools at a level that is unmatched in the history of collegiate sports. Even teams that never play in a BCS game are able to reap the financial benefits simply by virtue of their membership in one of the six original BCS conferences. While the BCS claims to represent all of college football, the current system leaves nearly half of all the teams in college football at a competitive disadvantage when it comes to qualifying for the millions of dollars paid out every year.
At present, it is still unclear as to how the courts would rule on an antitrust challenge to the current BCS system. Nevertheless with the surge of press releases, legislative proposals and hearings, and fan commentary, there is no doubt that the system currently in place will not be tolerated much longer. Importantly, the non-BCS schools have a strong and convincing argument that the current system is not only inherently unfair, but that it violates Federal antitrust law.
Joseph M. Hanna is a partner in the Buffalo, New York office of Goldberg Segalla, LLP. His practice is focused on commercial litigation with an emphasis on sports and entertainment law, construction law and intellectual property litigation. In 2010, Mr. Hanna was awarded the New York State Bar Association Outstanding Young Lawyer Award for his efforts to enhance diversity in the legal profession and effective leadership in community activities. Matthew V. Bruno is an attorney in the Long Island office of Goldberg Segalla, LLP. He is a member of the Defense Research Institute (DRI), New York County Lawyers Association, American Bar Association, and the Nassau County Bar Association. His practice is focused on litigation, with an emphasis on premises liability and municipal liability litigation.
[1] In an interview on the television show 60 Minutes in November of 2008, then President-elect Barack Obama, gave his own take on the current BCS scheme, noting: “If you’ve got a bunch of teams who play throughout the season and many of them have one loss or two losses, there’s no clear, decisive winner…we should be creating a playoff system.” http://www.washingtontimes.com/news/2008/nov/18/obamas-options-on-bcs-limited (last visited February 22, 2009).
[2] See 15 U.S.C. §§ 1-7 (2000).
[3] Id. at §1.
[4] Id. at §2.
[5] Id.
[6] See United States v. U.S. Steel Corp., 251 U.S. 417, 463 (1920) (Day, J., dissenting).
[7] 54 Am. Jur. 2D Monopolies and Restraints of Trade § 1. Its reference to trusts today is an anachronism. At the time of its passage, the trust was synonymous with monopolistic practice, because the trust was a popular way for monopolists to hold their businesses, and a way for cartel participants to create enforceable agreements (See Letwin, W. L. (1956) Congress and the Sherman Antitrust Law: 1887-1890, 23 U.Chi.L.Rev 221).
[8] Non-BCS schools and individual universities would likely have standing as they could easily argue that their ability to conduct business as a university is hindered when they receive less financial gain as compared to BCS schools. See also Competition in College Athletic Conferences and Antitrust Aspects of the Bowl Championship Series: Hearing Before the House Comm. on the Judiciary, 108th Cong. 17 (2003) (testimony of Scott S. Cowen, President, Tulane University, and Chairman, Presidential Coalition for Athletics Reform) [hereinafter Cowen Statement].
[9] 221 U.S. 1 (1911) emphasis added (Harlan, J. concurring and dissenting).
[10] 15 U.S.C. §2. See also Herbert Hovenkamp, Federal Antitrust Policy: The Law of Competition and its Practice §2.1 2d ed. (1999).
[11] 351 U.S. 377, 391 (1956).
[12] Lafcadio Darling, The College Bowl Alliance and the Sherman Act, 21 Hastings Comm. & Ent. L.J. 433, 437 (1999)[hereinafter Darling].
[13] See State Oil Co. v. Khan, 522 U.S. 3, 10 (1997). The Supreme Court usually applies this approach for instances so obvious on their face including price-fixing, group boycotts, and division of markets (See Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207). The “quick look” analysis will not be explored in this article as this intermediate level of scrutiny is used where “the adverse impact of a restraint . . . is obvious on its face, but the per se prohibition is deemed inappropriate (See United States v. Brown Univ., 5 F.3d 658, 669 (3d Cir. 1993)).
[14] See Kristin R. Muenzen, Comment, Weakening Its Own Defense? The NCAA’s Version of Amateurism, 13 Marq. Sports L. Rev. 257, 262 (2003).
[15] 468 U.S. 85, 109 (1984) [hereinafter Board of Regents].
[16] Id. at 100.
[17] See United States v. Brown Univ., 5 F. 3d 658, 668 (3rd Circuit).
[18] See Law v. NCAA, 134 F.3d 1010, 1017 (10th Cir. 1998). See also N. Pac Ry. Co. v. United States, 356 U.S. 1,8 (1958). See also Board of Regents, supra, note 15.
[19] See K. Todd Wallace, Elite Domination of College Football: An Analysis of the Antitrust Implications of the Bowl Alliance, 6 Sports Law J. (1999) [herein after Wallace].
[20] Id.
[21] See Darling, supra, note 12.
[22] See Law v. NCAA, supra, note 18.
[23] See Robert Ours, College Football Encyclopedia: The Authoritative Guide to 124 Years of College Football 243 (1994). See also Antitrust Implications of the College Bowl Alliance: Hearing Before the Subcomm. on Antitrust, Business Rights and Competition, S. Comm. on the Judiciary, 105th Cong. 41 (1997) (Statement of Roy F. Kramer Commissioner of the Southwestern Conference, 1997 WL 105721125.
[24] Id.
[25] See Jodi M. Warmbrod, Antitrust in Amateur Athletics: Fourth and Long: Why Non-BCS Universities Should Punt Rather Than Go for an Anti-Trust Challenge to the Bowl Championship Series, 57 Oklahoma L.R. 336 [hereinafter Warmbrod].
[26] See Bowl Championship Series: Bowl Background, http://www.bcsfootball.org/bcsfb/background (last visited February 28, 2009).
[27] See Competition in College Athletic Conferences and Antitrust Aspects of the Bowl Championship Series: Hearing Before the House Comm. on the Judiciary, 108th Cong. 10 (2003) (testimony of Jim Delany, Commissioner, Big Ten Conference) [hereinafter Delany House Statement].
[28] Id.
[29] Id. The Pacific-10 is also commonly referred to as the “Pac 10”.
[30] Id. Commissioner Delany noted, for example, that the Southeastern Conference has a long relationship with the Sugar Bowl. In addition, the Big 12 Conference (once known as the Big Eight Conference), for many years had a close relationship with the Orange Bowl in Miami and sent its champion there every year. The former Southwest Conference for many years sent its champion to the Cotton Bowl in Dallas. The Atlantic Coast Conference developed a close relationship with the Citrus Bowl in Orlando in the 1980s and sent its champion to that game until the early 1990s. Even the Big East Football Conference, which was created in the early 1990s, had a lucrative offer from what was then known as the Blockbuster Bowl to send its champion to that game each year.
[31] Id.
[32] Id. Commissioner Delany noted, that, under the bowl system as it existed in the early 1990s, there was very little chance that the national championship would be decided on the field.
[33] See Wallace, supra, note 19 (Noting that polls, rather than on-field result determine the National Championship).
[34] See Antitrust Implications of the College Bowl Alliance: Hearing Before the Subcomm. On Antitrust, Business Rights and Competition, S. Comm. on the Judiciary, 105th Cong. 9-10 (1997)(statement of Senator Mitch McConnell).
[35] See Competition in College Athletic Conferences and Antitrust Aspects of the Bowl Championship Series: Hearing Before the House Comm. on the Judiciary, 108th Cong. 10 (2003)(testimony of Jim Myles Brand, NCAA President).
[36] Id.
[37] Opponents of a traditional playoff system argue, inter alia, that the number of student-athletes would be reduced in a sixteen-team playoff system, it would interfere with student athletes’ academic studies and examinations, and it would harm the communities hosting the bowl games. See BCS or Bust: Competitive and Economic Effects of the Bowl Championship Series on and Off the Field: Hearing before the S. Comm. on the Judiciary, 108th Cong. (2003) (statement of Harvey S. Perlman, Chancellor, University of Nebraska-Lincoln).
[38] The Bowl Conference consisted of the ACC, Big East, Big 12, SEC and Notre Dame.
[39] See Delany House Statement, supra, note 27.
[40] Id.
[41] Id.
[42] Id.
[43] Id.
[44] See Delany House Statement, supra, note 27, at 13.
[45] These include the Fiesta, Orange, Rose, and Sugar Bowls. There is also a fifth BCS National Championship Game played each year at one of the bowl sites. See CollegeFootballPoll.com, BCS Explained, http://www.collegefootballpoll.com/bcs_explained.html (last visited March 1, 2009).
[46] Id.
[47] Id. The conferences include the Atlantic Coast Conference, Big East, Big Ten, Big 12, Pac-10, and SEC. However, while there are other conferences and independent schools who can participate in BCS bowls, they do not receive automatic bids for their champions. These conferences include Conference USA, Mid-American Conference, Mountain West Conference, Sun Belt Conference, and Western Athletic Conference.
[48] Id. For example: 2,850/2,850=1.0. If a team receives a total of 114 voting points, an average of 25th place, their BCS quotient of this component would be .04 (1.0/25).
[49] Id. For example: 1,500/1,500 = 1.0. If a team receives a total of 60 voting points, an average of 25th place, their BCS quotient of this component would be .04 (1.0/25=0.04)
[50] See Bowl Championship Series, BCS Computer Rankings, http://www.bcsfootball.org/bcsfb/rankings (last visited March 1, 2009). The current computer rankings are calculated by Jeff Sagarin, Anderson & Hester, Richard Billingsley, the Colley Matrix, Kenneth Massey and Dr. Peter Wolfe.
[51] Id.
[52] Id.
[53] Id.
[54] The champions of the ACC, Big East, Big Ten, Big 12, Pac-10 and SEC conferences have automatic berths in one of the participating bowls. See CollegeFootballPoll.com, supra, note 45.
[55] See Bowl Championship Series, supra, note 50.
[56] See Cowen Statement, supra, note 8.
[57] Id.
[58] Id.
[59] See Theeagle.com: Utah AG Says BCS May Violate Antitrust Laws, http://www.theeagle.com/sports/Utah-AG-says-BCS-may-violate-antitrust-laws (last visited March 2, 2009)[hereinafter The Eagle].
[60] See ESPN.com: Congress to Probe BCS Antitrust Issues, http://sports.espn.go.com/ncf/news/story?id=4015667 (last visited May 26, 2009)[hereinafter Congress to Probe BCS Antitrust Issues].
[61] See Obama Administration Mulling Action Against BCS; Outline Possible Violations in Letter to Senator Orrin Hatch Today, http://hatch.senate.gov/public/index.cfm?FuseAction=PressReleases.Detail&PressRelease_id=7c6d164a-1b78-be3e-e012-d3c7b78ddb2a (last visited April 16, 2010).
[62] Id.
[63] Id.
[64] See Wallace, supra, note 19.
[65] See Mark Hales, The Antitrust Issues of NCAA College Football Within the Bowl Championship Series, Sports Lawyers Journal (Spring 2003)[hereinafter Hales].
[66] Id.
[67] See Hennessey v. NCAA, 564 F.2d 1136, 1150 (5th Cir. 1977).
[68] BCS or Bust: Competitive and Economic Effects of the Bowl Championship Series On and Off the Field: Hearing Before the S. Comm. on the Judiciary, 108th Cong. 67-68 (2003)(statement of Harvey S. Perlman, Chancellor, University of Nebraska-Lincoln). While Mr. Perlman stated that his University received $1.2 million each year from BCS distributions, he also noted that Nebraska-Lincoln earned double that in home game revenue.
[69] See Cowen Statement, supra, note 8.
[70] See The Eagle, supra, note 59.
[71] Id. If more than only one school from those conferences make the BCS bowls or championship game, the conferences get an additional $4.5 million for each additional game.
[72] Id. See also ESPN.com: House Committee Quizzes Swofford, http://sports.espn.go.com/ /ncf/news/story?id=4121294 (last visited May 26, 2009)[hereinafter House Committee Quizes Swofford].
[73] Competition in College Athletic Conferences and Antitrust Aspects of the Bowl Championship Series: Hearing Before the House Comm. on the Judiciary, 108th Cong. 29 (2003)(testimony of Steve Young).
[74] During the 2001 season, BYU participated in the Liberty Bowl in Tennessee. BYU was required to sell a certain number of tickets just to break even. They failed to sell the 571 tickets and owed nearly $100,000 to the Liberty Bowl just to play the game.
[75] See Hales, supra, note 62, at 121-122. Hales takes this argument to its logical next step and contends that if Division I-A football programs lose revenue, the school’s very financial well-being may be in jeopardy, as collegiate football accounts for two-thirds of schools’ athletic revenues in the NCAA Division I-A (citing Steve Weinberg, Questions Rise About Commissioners’ Roles Chiefs of Six Major Conferences See as “De Facto Leaders’ of NCAA, USA Today, Nov. 1, 2000, at 8C). Although your author does not necessarily believe that this scenario is probable, it is nonetheless a possible result.
[76] See Warmbrod, supra, note 25 at 372.
[77] Id. at 373, noting that in 2003, the A.P. named U.S.C. national champion and the Coaches Poll named the winner of the BCS title game, L.S.U., national champion.
[78] See Hales, supra, note 62 at 122.
[79] See Congress to Probe BCS Antitrust Issues, supra, note 60. See also, College Football Playoff Act of 2009, H.R. 390, 111th Cong. (2009).
[80] See Championship Fairness Act of 2009, H.R. 599, 111th Cong. (2009).
[81] See Warmbrod, supra, note 25, at 374, arguing that antitrust laws will not force the BCS to give the non-BCS complete access to the BCS arrangement (citing Philip Areeda, Essential Facilities: An Epithet in Need of Limiting Principles, 58 Antitrust L.J. 841, 844 (1989).
[82] The opportunity for an at-large invitation, for example, will not suffice.
[83] However, see Hales, supra, note 62 at 122, noting that in 2002, BCS bowl games rating dropped 22% from the previous year and giving his explanation that ratings have decrease precisely because the two best teams in Division I-A football have not consistently been matched.
[84] See Wallace, supra, note 19.
[85] Although there are conceivably better ranking systems that can be explored to work in lieu of or in conjunction with a modified season, they will not be addressed here as your author thinks that any ranking system is inherently biased and easily corruptible. However, see Hales, supra, note 62 at 128, for an example of a modified ranking system.
[86] Under this system, since there would be only one bowl game, no one team would be jockeying for exposure on New Year’s Day, as there would be only one game.
[87] CBS’ eleven year deal for the NCAA basketball tournament is worth $6 billion. See College Basketball CBS Will Pay $6 Billion for Men’s NCAA Tournament, New York Times, November 19, 1999, http://query.nytimes.com/gst/fullpage.html?res=9A01E6D6173CF93AA25752C1A96F958260 (last visited March 3, 2009).
[88] If the BCS conferences are as good as they often contend they would still be able to take home most of the money and perhaps as much as they do under the current system.
