After a 2010-11 college football season in which two teams – Auburn and Texas Christian – finished undefeated in the NCAA FBS (Football Bowl Subdivision; formerly Division I-A), more fuel was thrown on the ever-burning debate about the continuing propriety of the BCS as the method of determining the FBS champion. While some mid-major schools took matters into their own hands – namely Utah, which moves to the newly-formed Pac 12 this fall – the rest, including perennial darling Boise State, are left to defend their “weaker” opponents and “favorable” schedules against the juggernauts of the SEC and Big 10(ish) via hypotheticals and arguments, rather than in a winner-takes-all format. The BCS, although widely questioned and sharply criticized, was apparently insulated by the inertia of the status quo and the billions in advertising, ticket, and television revenue it brought for the NCAA.

Boise State Looking to Battle BCSHowever, in the past few months, the BCS has experienced, at the very least, a change in fortune. In March, the Fiesta Bowl – a BCS member bowl – fired its CEO after discovering numerous improprieties, including a scheme to cover-up illegal reimbursements for political contributions by employees. The BCS, which had dropped out of the spotlight since Cam Newton led Auburn to a victory over Oregon, was firmly back in the public gaze. In April, Utah Attorney General Mark Shurtleff captured the hearts of many a college football fan by announcing a plan to file an antitrust suit against the BCS, claiming illegal restraint of trade. Soon after, Hawaii Attorney General David Louie declared interest in joining the Utah suit.

Finally, and perhaps most importantly, in response to a letter to the U.S. Attorney General from a number of college professors and questions from Utah Rep. Orrin Hatch, U.S. Assistant AG Christine Varney, in the antitrust division, sent a letter to NCAA President Mark Emmert on May 3, 2011, requesting that the NCAA answer questions tending to justify the continuing validity of the BCS system. Far from being just a popular reaction against the policy judgment of the NCAA, a valid antitrust suit has the ability to stand the college football world on its head.

Arent Fox, a sports law firm hired by Boise State and a few other non-automatic qualifying conference schools in anticipation of the upcoming legal battles, completed a report in January 2011 outlining the justifications for an antitrust suit. The main gist of an anti-BCS antitrust argument is that the BCS bowls – typically competitors in the market – have acted in concert with the NCAA in the creation of a system which effectively limits access by guaranteeing a majority of bowl berths (and thereby revenue) to members of the so-called Big 6 conferences. As such, they have directly harmed the teams, fans, and states by denying opportunity and revenue to public institutions. Boiled down, the NCAA may have a minimal justification for its continued reliance on the BCS in lieu of the panopoly of other available options (especially considering the lack of a BCS-style system in any of the NCAA’s 88 other championships).

Regardless if an antitrust suit is ever actually pursued, the NCAA and BCS are absolutely receiving their respective days in the court of public opinion. Whether or not the BCS is an illegal monopoly, it is – as demonstrated throughout its history – plainly an illegitimate and irrational way to arrive at a national champion. (Or pick other major bowl teams for that matter – Seriously? Connecticut?) Perhaps, if sports fans are lucky enough, the next generation of leaders in sports will figure out ways to split billions of dollars and decide champions without having to worry about a courtroom.

- Alex Payne

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