The University of Utah’s football team finished a perfect season with its upset over Alabama in the Sugar Bowl, and some people believe the Utes should be considered the 2008 College Football National Champions. However, the University of Florida and the University of Oklahoma, each with one loss, ended up facing each other for the college football’s Bowl Championship Series (BCS) National Championship. The BCS uses a combination of polls and computer selection methods to determine team rankings and selects the teams that compete both in the championship game and the four other BCS bowl games. The champions of the six so-called BCS conferences (Atlantic Coast, Big 12, Big East, Big Ten, Pacific-10, and Southeastern) receive automatic bids to BCS games each year. The formula is tilted against the other conferences that many consider weaker, so teams like Utah, a member of the Mountain West Conference, are effectively blocked from the championship game. Regardless of whether the Utes should be crowned National Champions, or at least should have played in the championship game, the BCS system raises some interesting legal questions.

In a press release on January 7, Utah’s Attorney General, Mark Shurtleff, stated that he’ll “be meeting soon with lawyers and investigators to discuss whether the BCS is violating any antitrust laws.” Shurtleff said this isn’t about bragging rights; it’s about millions of dollars going to the select BCS schools so they get richer while the non-BCS schools get poorer. The BCS distributes about $9.5 million among the non-BCS conferences to make their teams available for BCS games. If a school from one of those conferences is invited to a BCS bowl or championship game, those conferences also get 9 percent of BCS revenues from the game and TV rights. If more than one school receives an invitation, the conferences get $4.5 million for each additional team. Compare that to the BCS conferences, which receive about $18 million each. If a second team from a BCS conference goes to a BCS game (like the SEC this year with Florida in the championship game and Alabama in the Sugar Bowl), that conference gets an extra $4.5 million. Since the payouts to non-BCS conferences are so limited, they fall farther behind the BCS conferences in ability to improve athletic facilities and programs. Also, the system gives BCS teams an advantage in recruiting because if top recruits have a choice between signing with a BCS team or a non-BCS team, they will likely choose a BCS team that has a better opportunity to play in BCS bowls and national championship games.

Although no suit has been filed, if someone eventually files an antitrust claim against the BCS, the plaintiff would have to prove that the BCS is a conspiracy that creates a monopoly. According to Martin Edel, a lawyer who practices sports law and teaches sports law at Brooklyn Law School, the first issue would be defining the relevant market from which the plaintiff claims it’s been excluded. One would need to show that the defendant had the means to control price or limit output in that market, and therefore the plaintiff would want to define the market as narrowly as possible (for example, NCAA Division I football or the conferences subject to BCS rules). The BCS might argue that the market controls college football, or even entertainment in general, which would make the anti-trust claim’s success more difficult. Edel believes that if the plaintiff can get past that hurdle, it will probably be able to demonstrate that the BCS has control over the market. Then, the court would have to balance the anti-competitive effects and pro-competitive benefits of the BCS formula. It’s not enough to just say teams were excluded; the court would have to look at why the system is designed the way it is. For example, although many people have pushed for a playoff system, university presidents have opposed the idea because they don’t have the resources for playoffs or can’t make it work with their academic schedules.

Criticism of the BCS system will likely continue to grow if undefeated or seemingly qualified non-BCS teams are left out of championship and bowl games in the future. A playoff system would be less mysterious and complicated than the current rankings system, but could be challenging to implement, at least at first. It seems that the easiest compromise would be to turn the existing BCS bowl games into playoff games.

Proponents of some sort of playoff system seem to have an ally in President-elect Obama. In a recent “60 Minutes” appearance he said, “We should be creating a playoff system . . . I don’t know any serious fan of college football who has disagreed with me on this. So, I’m gonna throw my weight around a little bit.”

Allyson Brown

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