In early 2009, Utah Attorney General Mark Shurtleff couldn’t take it anymore. After he watched the Utah Utes football program go undefeated in the regular season for the second time in five years, he believed that the Utes deserved a place in the NCAA’s BCS title game. However, just like in 2004, the Utes were left in the dark, with one loss Florida playing one loss Oklahoma in the BCS title game. Utah went on to beat Alabama in the Sugar Bowl, completing their second undefeated non-championship season in five years.

Shurtleff at that time merely announced that he would begin looking into antitrust laws in an attempt to identify any theory by which the BCS could be challenged under the Sherman Antitrust Act. As Shurtleff noted, his concern was not merely “about bragging rights. It’s a multimillion dollar business — hundreds of millions — where the BCS schools get richer and non-BCS get poorer.” He further argued that based on the current system more than half of the NCAA division one football programs would never be able to play for a national championship. In late March, Shurtleff confirmed that he was ready to go forward with the lawsuit, hoping to file by June of 2009.

Fast forward to October 2010. Shurtleff has yet to file suit against the BCS, but it appears it may just be a matter of time. Shurtleff is heading to Washington this week — lawsuit in hand — to meet with top officials at the Department of Justice (which works with the Federal Trade Commission in pursuing most antitrust litigation in the United States). Shurtleff was quoted saying that the suit will go forward, with or without the cooperation of the Justice Department, but later backed down and said there is an “eighty percent chance” of the lawsuit being filed.

What will Shurtleff allege in his lawsuit? Professor Nathanial Grow recently shared some of his beliefs, soon to be published in the Harvard Journal of Sports and Entertainment Law, as to the claims that could succeed against the BCS.

Perhaps the most significant of these possible claims is price fixing. Grow argues that the BCS has eliminated competition between formerly independent bowl games and conferences in two ways. He first claims that the Fiesta, Sugar, and Orange bowls competed against each other for television contracts with the major networks in the past. The networks would bid and compete for individual games and this served as a constraint on the price that the bowls could seek. Once the Fiesta, Sugar, and Orange bowls came to be a part of the BCS, they were packaged together. The allegation is that this artificially raises the price paid by the network. The networks no longer have any other option but to compete against each other for one product, rather than competing against each other for three distinct products.

4362157101_ba8dcc9be0Grow’s second price-fixing claim focuses on the fees paid by the bowl games to the conferences. In the past, the appearance fee paid to the conferences by the bowl games would be negotiated on a yearly basis, based in part on the marketability of the team in question. Under the BCS scheme, a set sum is paid out to each automatically qualifying conference without regard to the qualifying team’s marketability, therefore artificially increasing ticket prices and television fees charged by the bowl game.

Professor Grow also argues that the BCS represents an illegal group boycott against conferences that do not receive an automatic BCS birth. A non-automatically qualifying conference that places a team in a BCS game receives substantially less money from the BCS than a conference that gets to automatically place their champion in a BCS game. For example, for the 2010 BCS, the Big East, Big Twelve, Pac-10, and ACC all placed one team into a BCS game. Each of those conferences received at least 17.7 million from the BCS. As non-automatic qualifying conferences, the MWC and the WAC each placed one team into a BCS game. Those two conferences combined received only 17.8 million.

It will be interesting to see if the Department of Justice goes along with Shurtleff’s suit. While a victory against the BCS would not lead directly to a playoff being instituted, it would at the least get rid of a system that has frustrated many a college football fan since its inception in 1998.

Charles Michels

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