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Thursday, May 05, 2011
Recent BCS-Related Developments

For those following the on-going saga regarding the legality of the Bowl Championship Series under federal antitrust law, there have been several developments this week that may be of interest.

First, the Honolulu Star-Advertiser reported on Tuesday that the State of Hawaii is considering whether to join the forthcoming antitrust suit that Utah Attorney General Mark Shurtleff intends to file against the BCS. Hawaii AG David Louie reportedly discussed the issue at length with Shurtleff during a recent meeting of state attorneys general, and his office is working on an agreement with Utah to share related materials. Hawaii would be a logical state to join in such a suit, given that its flagship university is in a non-BCS conference, and received a disproportionately small share of revenue for its 2008 Sugar Bowl appearance.

Second, Christine Varney, an Assistant Attorney General in the Antitrust Division at the U.S. Department of Justice, sent a letter on Tuesday to NCAA President Mark Emmert, inquiring as to the NCAA's position on the BCS. Varney's letter began by stating that "serious questions continue to arise suggesting that the current [BCS] system may not be conducted consistent with the competition principles expressed in federal antitrust laws." The letter then went on to ask the NCAA to explain why it does not offer a playoff for the Football Bowl Subdivision, and whether the NCAA believes the BCS currently serves the best interests of "fans, colleges, universities, and players." The letter closes by stating that the NCAA's views on these issues will help the Justice Department determine how to proceed with respect to the BCS, a clear signal that the federal government continues to investigate the legality of the system.

It will be interesting to see how the NCAA responds to the Justice Department's letter. The six BCS conferences possess an inordinate amount of power within the NCAA, and will presumably pressure the organization to remain agnostic regarding a playoff in its response. However, the NCAA membership at large would stand to benefit significantly if a playoff were implemented in the Football Bowl Subdivision, given that the NCAA would undoubtedly retain a share of the revenues it generates (as it does for the NCAA Division I men's basketball tournament). In the unlikely event the NCAA came out in favor of a playoff, pinning the blame for the lack of a playoff on the obstinate leadership of the six power conferences, it could inflict a significant blow to the BCS's chances of surviving this latest round of political pressure.

Finally, CNN is reporting that Utah Senator Orrin Hatch "demanded" the Justice Department further consider a potential lawsuit against the BCS during Attorney General Eric Holder's appearance before the Senate Judiciary Committee on Wednesday. AG Holder reported stated that he did "not disagree" with Senator Hatch's characterization of the BCS as a "mess" that provides distinct advantages to certain "privileged conferences."

All in all, one has to wonder how much longer the BCS leadership will continue to defend the system in the face of increasing political pressure, especially given the fact that the six BCS conferences would stand to earn hundreds of millions of dollars more per year under a playoff system.

Update: Mike McCann is interviewed today by David Moltz of Inside Higher Ed on the Justice Department's letter to the NCAA.

Update #2: The PlayoffPac blog discusses the relevance of the NCAA's views on the playoff matter, noting that NCAA bylaws prohibit any outside entity from establishing its own championship tournament.


It strikes me that all of this bluster and potential, or actually, litigation about the BCS is much ado about nothing in the sense of achieving what the protagonists truly want - a football playoff. No judge has the power to order the NCAA to create a playoff and if the membership of FBS wanted one, there would be one in place right now.

The most likely scenario should the BCS ever lose an antitrust action, which I think is highly unlikely, is for football to revert back to where it was before the BCS (actually, its forerunner the Bowl Alliance) was created, that is the free for all that was the bowl season in ancient times, with what are now BCS bowl entering into affiliate contracts with certain conferences. Indeed, several commissioners and school presidents have stated that is exactly what would happen - most recently JIm Delaney of the Big Ten. The other possibility is the BCS schools picking up their marbles and going home, i.e. withdrawing from the NCAA and forming their own association. That would remove the bowl games as an issue and would place the CBS/Turner basketball contract in jeopardy. Remember, the NCAA is a voluntary membership organization.

So, what do the non-AQ schools hope to accomplish? How do they propose to force a playoff?

Blogger Mark -- 5/10/2011 8:30 AM  


I agree that a court is unlikely to enter an order mandating the NCAA implement an FBS playoff. However, I disagree that returning to the old system is a viable alternative should an antitrust suit against the BCS succeed. The BCS conferences would simply be leaving too much money on the table by foregoing a playoff in order to permanently return to the old system (and that's before we even get into the backlash the BCS conferences would face from college football fans). Andy Staples from Sports Illustrated has a good column on this topic:

Also, while I agree with you that the NCAA could implement its own playoff if the membership currently wanted one, the antitrust problem is that the NCAA bylaws currently prevent teams from playing in more than one post-season game. This blocks any outside entity from stepping in to respond to consumer demand by setting up its own playoff. There was a good commentary on this point on today:

Finally, I agree with you that one risk the non-AQ schools face in pushing this issue is the BCS conferences electing to withdraw from the NCAA altogether. Ultimately, however, I don't believe this is a significant threat, given all the issues that would have to be overcome to make such a move feasible (dissolution of the basketball contract, as you note, being among the most glaring).

Blogger Nathaniel Grow -- 5/10/2011 3:47 PM  

I agree that a court is unlikely to enter an order mandating the NCAA implement an FBS playoff. However, I disagree that returning to the recent system may be a viable different ought to an antitrust suit against the BCS succeed. The BCS conferences would merely be leaving an excessive amount of cash on the table by foregoing a playoff so as to permanently come back to the recent system (and that is before we have a tendency to even get into the backlash the BCS conferences would face from faculty soccer fans). Andy Staples from Sports Illustrated encompasses a sensible column on this topic:

Anonymous Aekarat -- 6/13/2011 3:55 AM  

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