During the college football season, nothing is more commonly discussed than the Bowl Championship Series (“BCS”). Conference commissioners and university presidents argue in favor of the BCS and indicate no desire to change the current system. Whereas, journalists, fans, and universities on the outside looking in detest the BCS and threaten legal action. For over a year, we have heard that the Utah Attorney General will soon file suit against the BCS. We have even heard President Obama call for change. Now, Alan G. Fishel of Arent Fox, LLP, on behalf of Boise State University and the Mountain West Conference, has drafted Overview: The BCS’ 22 Tall Tales addressing arguments to overthrow the BCS and requesting that the Department of Justice take up the fight. In Mr. Fishel’s 22 point argument, he calls the BCS every name in the book and chastises nearly every conceivable argument ever made by BCS officials and institutions making up the so-called automatic qualifiers (“AQ”). Specifically, Mr. Fishel states the following are simply untrue:
1. The BCS puts the two best teams in the national championship game every year.
2. The BCS ensures marquee matchups in the other four major bowls.
3. As a result of the BCS, “every game counts” in the college football regular season.
4. Under the BCS, the entire regular season is a playoff.
5. A playoff would destroy the regular season.
6. College football has the best regular season in all of sports.
7. Most bowls would cease to exist if there was a playoff.
8. Most college football players do not want a playoff.
9. A playoff would force the players to miss too much time from school.
10. A playoff involves too many games for the players.
11. The market demands the current system.
12. The college football system that the BCS has taken control over is purely voluntary.
13. The Non-AQ conferences have a true opportunity to become AQ conferences.
14. Under the BCS, every team has the same opportunity to win the national championship.
15. Non-AQ conferences receive at least as much revenue as AQ conferences for reaching a major bowl.
16. The BCS is far more equitable to teams outside of what are now called the AQ conferences than the old system.
17. The BCS scheme is fair.
18. There is no way to design a playoff.
19. If the BCS is forced to change its system, it will revert to the 1991 system, and will still not allow a playoff to occur.
20. The BCS scheme does not violate anti-trust law.
21. There is no reason for DOJ to commence a formal investigation of the BCS scheme.
22. Consumers are not harmed by the BCS scheme.
There has been a plethora of law review articles directed at both sides of the BCS equation. A band of journalists even drafted an entire book, Death to the BCS, on the topic. At the end of the day, what would a lawsuit against the BCS (simply a contract among the 11 FBS conferences) do? Would it create a playoff? No. The creation of a playoff is a possibility, but a judge is not going to enjoin the play of postseason college football until a playoff is created. A playoff would only be created on the agreement of the conferences. Then, a system for determining the 8 or 16 teams would have to be created. Of course, journalists would have no problem pointing out the flaws in choosing the top 16 teams. At the end of the day, a solid football team will be left out of any system and the representative from their district will argue the system is inherently flawed. This only shows that fans are passionate about their universities and college football. College football is a fabric of our culture and like the NFL is a juggernaut with substantial economic possibilities. Whenever money is on the line and passion is involved, people will argue.
The following is just a snapshot of what would be argued in an antitrust claim challenging the BCS. The plaintiff, whether it is the DOJ, a Non-AQ Conference, or a university, would argue that the BCS constitutes a group boycott and its operation has anticompetitive effects on the market place. One drawback for the plaintiff would be the requirement to show how the current system injures consumers (i.e., you and me—the fans). The seminal case Brown Shoe Co. v. United States clearly articulated the Sherman Act (antitrust act) protects competition, not competitors. It seems the argument is the system is unfair to Non-AQ teams. The plaintiff would have to show the BCS raises ticket prices or some other form of harm to the consumer. However, recent United States Supreme Court precedent relating to group boycotts has simply glossed over the consumer harm element of an antitrust claim, thus the plaintiff may be able to argue that the failure to establish consumer harm is not the end of the game.
The plaintiff will likely point to Metropolitan Intercollegiate Basketball Association v. NCAA (suit involving the NIT) and argue that the BCS prohibits the offering of the most competitive football contests and, thus, consumer welfare has been sufficiently damaged. As such, the plaintiff will make arguments indicating the BCS is anticompetitive as follows:
1. Quality high ranked teams have been excluded from BCS competition (i.e., Boise State).
2. There is a gross disparity in the amounts paid to AQ schools and Non-AQ schools and, therefore, such payments create gross competitive disparities.
3. Recent surveys (ESPN polls) show both fans and football student-athletes favor a playoff system.
In the event the plaintiff is able to sufficiently establish consumer harm, the BCS would be afforded the opportunity to argue the positive aspects of the BCS system. Following United States Supreme Court precedent established in Board of Regents v. NCAA, the court will apply the Rule of Reason test, which is simply a balancing test allowing the defendant (BCS) to show why the BCS system is pro-competitive. The BCS has argued in congressional hearings and a variety of other forums as follows:
1. The BCS offers a national championship game and four popular bowl games.
2. Every regular season games counts.
3. Attendance has improved following the creation of the BCS.
4. The BCS national championship game creates a guaranteed No. 1 v. No. 2 matchup.
5. The creation of the BCS strengthened the bowl system overall.
6. A playoff system would extend the season and university presidents are unwilling to tax student-athletes academically anymore than necessary.
7. Non-AQs have access to BCS games.
At the end of the day, a jury will decide the fate of the BCS. The question remains: what will a jury verdict in favor of the plaintiff do other than provide substantial monetary damages (antitrust damages are trebled)? Several prominent presidents and conference commissioners have indicated the system will revert to the old bowl tie-in system. Big 10 Commissioner Jim Delaney has made it clear that the Rose Bowl is their most cherished partner and they have no desire to change that. Do you think the Rose Bowl would be happy with the third team from the Big 10 if a playoff system is created? Doubtful. If you think the Non-AQ teams have trouble getting into big time bowls now, wait and see how difficult it will be to bypass a tie-in system. Either way, litigation relating to the BCS will create more litigation (i.e., bowls will likely bring suit), more confusion, and more debate.