Illegal Procedure?
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For most of the second half of the 2008 college football season, the Alabama Crimson Tide rolled atop the Bowl Championship Series standings and appeared headed for the national title contest in Miami.
That was until the Tide suffered their first loss to the Florida Gators in the Southeastern Conference championship, a 31-20 fourth-quarter collapse that gave the Gators a chance to win their second national championship in three years.
Meanwhile, the University of Utah was on its way to an undefeated season and appeared to be within striking distance of a spot on the national championship ticket. It was not to be.
The championship game would feature one-loss Florida against the Oklahoma Sooners, also once defeated. The Utes never climbed higher than sixth in the BCS standings, even though they later showed their strength by swamping the Tide 31-17 in the Sugar Bowl.
Amid the anticipated grousing from Utes fans, another voice piped up. Utah Attorney General Mark Shurtleff questioned whether Utah’s exclusion from the national championship mix violated state and federal antitrust laws.
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It’s a system critics say is tilted against nearly half the schools that play big-time college football. Home-state Republican Sen. Orrin Hatch joined Shurtleff in July and suggested that the Justice Department also take a look at the BCS.
“We are aware of Sen. Hatch’s request and we will respond as appropriate,” DOJ spokeswoman Gina Talamona says.
Utah “can rightfully claim ‘We’re No. 1,’ ” Shurtleff wrote in a Jan. 3 blog entry after the Utes beat Alabama. “Unfortunately, the BCS monopoly, with its money and its exclusive club and its computers, will crown another team as national champion.”
Critics complain that the road to the championship illegally favors big-time conferences with long, storied football histories over smaller ones with up-and-coming programs. Those complaints likely will arise again beginning Oct. 18, when the BCS releases its first in a series of weekly rankings that will determine which teams will be eligible for January’s four major bowls and a fifth game designated as the national championship contest.
This year, though, serious talk has surfaced about taking the BCS to court to force it to provide more playing opportunities and money to conferences whose chances of having teams reach major bowls are slim at best. BCS officials thus far have resisted calls for change.
Veteran New York City antitrust lawyer Barry J. Brett figures the BCS is unlikely to move on its own, so the Justice Department should press the issue. In a similar situation, the U.S. Supreme Court, in 1984, held that college football’s attempts to limit television broadcasts of its games ran afoul of antitrust law.
“I do not think it’s going to go away,” says Brett. “I think the money is too great and the abuses are too great for it to just go away.”
The BCS is separate from the NCAA, college sports’ main governing body. It began in 1998 as an attempt to make some sense of the national football championship scene among the 116 NCAA Football Bowl Subdivision schools—formerly known as Division I-A. For decades the postseason ratings had been dominated by polls of writers and coaches and produced as many swearing contests as they did consensus champs.
Before the BCS, individual bowls hooked their games into particular conferences they could depend on to bring lots of fans and money to town between Christmas and New Year’s, when travel and tourism are typically slow. For decades fans could count on the Rose Bowl to feature the powerhouse Big Ten and Pacific-10 conferences.
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Today, the BCS blends traditional polls with a half-dozen computerized rankings to match the strongest teams against each other in the major bowls—the Rose, Sugar, Orange and Fiesta—along with the new national championship game, between Nos. 1 and 2, to be played Jan. 7 in the Rose Bowl.
But success on the playing field isn’t the only consideration. Each of the six BCS anchor conferences—the Atlantic Coast, Big East, Big Ten, Big 12, Pac-10 and SEC—must have at least one representative in each of the five BCS games. That means six of the 10 spots on the dance card are automatically set.
The remaining five conferences have 52 schools left to hope for spots. They include Conference USA, the Mid-American, Mountain West, Sun Belt and Western Athletic Conference. While two or more of those conference champions may be eligible for a bowl on paper, the BCS only will accept one.
That means the automatically qualifying conferences, along with independent Notre Dame, effectively can lock in as many as nine of the 10 available places, no matter how well or poorly their teams played. WAC power Boise State, for one, missed out on a BCS bowl last season despite ending the regular season with a perfect record.
And no team from the five conferences ever has been selected for the national championship game.
The Mountain West, which includes Utah, also fared better than any other conference over the 2007-08 seasons, with a .552 winning percentage against nonconference opponents.
Moreover, critics gripe, the BCS structure casts the last five conferences as second-rate, meaning voters assume they’re not worth a ballot. They say the perception also makes it difficult for teams to prove themselves on the field, because more established opponents are reluctant to schedule them. Thus the BCS effectively eliminates half the teams before the season even begins, critics say.
“They’ve told the world, ‘Here’s who we think is good and here is who we think is not so good,’ ” says Washington, D.C., lawyer Alan G. Fishel, who represents the Mountain West.
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Moreover, while the automatic qualifiers each have a share in the BCS proceeds, the remaining five conferences must divide one share among themselves. And to the critics, the money situation is out of whack. Over the last four seasons, the automatic qualifiers have received $492 million in bowl revenue, nearly 90 percent of the total, while the rest have received just $62 million.
To Brett, restrictions on who plays and the lopsided bowl paydays make for the classic violation of the 1890 Sherman Antitrust Act, which outlaws conspiracies to curtail competition or otherwise restrain trade. The act provides for triple damages and fines up to $10 million on the civil side, and up to three years in prison on the criminal side.
But advocates for the BCS see no antitrust problems, particularly since the organization actually has increased its “product”—football games—by adding the championship game, rather than cutting back, as antitrust analysis requires for a violation.
Washington, D.C., lawyer William L. Monts III, who represents the six automatic qualifiers and Notre Dame, says the alliance also sends the other conferences added income they wouldn’t otherwise see. And despite complaints that they have no realistic chance of playing in a BCS bowl, Monts says that’s better than no chance at all, which is what the five smaller conferences had before the BCS system was introduced. In the end, he adds, the BCS couldn’t function unless it could offer conferences benefits they can’t obtain themselves.
“You’re getting more than you can get on your own, so where’s the antitrust violation there?” he asks. “If you can’t make it on your own, then you’ve got to have the other guys go along with you.”
Educators worry that, besides taking student-athletes out of class, a more elaborate postseason could carry with it a long list of practical concerns—from diminishing the excitement of the regular season to interfering with professional playoffs that sometimes are played on the same fields to forcing fans to follow their teams cross-country from playoff game to playoff game.
“The bowl games depend on more than just a few crazy fans,” says University of Nebraska Chancellor Harvey S. Perlman, who chairs a committee of university presidents that oversees the BCS.
Perlman says the automatic qualifiers someday may want to discuss changes to the postseason. But with a new television contract safely signed, sealed and set to deliver $125 million a year from 2011 to 2014, the BCS doesn’t appear all that interested in talking right away.
