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Saturday, December 12, 2009
 
Utah's Attorney General Planning an Antitrust Suit against the BCS

Following a Congressional subcommittee voting to prevent the BCS from declaring its culminating game the "national championship," as Howard discussed on Wednesday, it appears that another legal challenge to the BCS may be brewing. ESPN.com's Lester Munson reported on Friday that Utah Attorney General Mark Shurtleff is prepared to file an antitrust lawsuit against the BCS as soon as early 2010. The suit would presumably be premised on the BCS' exclusion of an undefeated Utah team from the national championship game last year. AG Shurtleff has scheduled a meeting with Christine Varney, the head of the U.S. Department of Justice's antitrust division, to ascertain whether the federal government would be interested in participating in the suit.

With or without federal assistance, Utah's proposed suit strikes me as a much more serious threat to the BCS than the Congressional measure discussed this week.





10 Comments:

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Anonymous Anonymous -- 12/12/2009 8:24 PM  


Does anyone have any concept of where they infer an agreement under Section 1 here? Off the top, I see that being a major hurdle. I cant imagine any direct evidence of an agreement to conspire and proving a circumstantial agreement is extremely tough for plaintiff. Just wondered if anyone had anymore knowledge on that area.

Anonymous MBoyer3 -- 12/13/2009 5:42 PM  


I'm pretty sure they don't have to prove an agreement to conspire. They have to prove that it was an agreement (in the sense that at least two parties were involved), and that it was in restraint of trade. Someone please correct me here as I'm still a 1L and haven't taken antitrust law, but I presume there will be a rule of reason analysis done here which is easier to get than the per se violation of section 1. Or would they be more likely to challenge the BCS as a monopoly under section 2? I'm not really sure, perhaps someone with more knowledge can chime in.

Blogger Jeremy -- 12/14/2009 1:27 AM  


Agree with Jeremy that a agreement with respect to the championship game will be relatively easy to prove, but anticompetitive effect will be very difficult. Remember, the status quo ante was no playoff and no guarantee of #1 meeting #2. The parties are not required to create an agreement that would be "more competitive" than the BCS. I recall the mid-1990s when both Penn State & Nebraska were undefeated and unable to meet because of conferene commitments to the bowls. Nebraska was voted #1 by the two major polls. That's the situation the BCS was intended to prevent. The fact that it isn't perfect because it is not a playoff does not make it an antitrust violation. Without the BCS, the big bowls most likely will go back to their conference commitments. The Rose Bowl or Sugar Bowl or Orange Bowl will never invite TCU, Utah or Boise in the absence of the BCS agreement. That's because without the BCS agreement, the bowl sponsors make more money by sticking with the big conferences.

Anonymous Jerry -- 12/14/2009 2:12 PM  


Scrutiny of Section 1 only applies if the plaintiff can prove the defendants acted jointly. These agreements can be proven by direct evidence (like express agreements) or by circumstancial evidence (playing follow the leader). If an agreement is found, then a characterization analysis can be carried out (per se versus rule of reason). I dont know what their specific claim is, but it seems to me, they may have a refusal to deal (boycott) claim. If that is the case, there is at least precedent for applying the per se rule. But they have to show an agreement to even get to that point. That is the point Im uncertain about.

I dont think a Section 2 monopolization claim is even an option here, because I dont know what kind of market theyd have monopoly power in, and even then refusals to deal in monopolization cases are given much more leniency than in the Section 1 type.

Id like to see exactly what claims there are in this case though. Does anyone have any idea or possibilities?

Anonymous MBoyer3 -- 12/14/2009 6:57 PM  


I'm a 2L, but I thought the rule of reason was a higher standard than per se. I think there's a strong case that even if this is a restraint (which is iffy at best IMO) that it is a reasonable restraint. The non-BCS schools have an easier standard to get into the BCS than any other at large bid, Notre Dame included (they only have to be in the top 12, ND in the top 9, BCS in the top 6...not to mention the Texas Tech rule from last year that cost a legit BCS team a birth because UT and OU were already going to BCS bowls).

It would seem to be that their only chance would be to get the restraint ruled under per se rather than the rule of reason.

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