The BCS and the antitrust laws

Following their improbable upset of the Alabama Crimson Tide in the 2009 Sugar Bowl, the undefeated Utah Utes had a seeming legitimate claim as to why they—instead of the one-loss Florida Gators or the Oklahoma Sooners—deserved to be in the Bowl Championship Series (BCS) National Title Game. Utah should have, at least, received a share of the title, right? Utah Attorney General Mark Shurtleff believes so. He has threatened to challenge the legality of the BCS under the Sherman Act for leaving the Utes out of the game. In a nutshell, his potential claim would allege that the "[BCS] system unreasonably restrains the opportunity of [Utah] educational [institutions] to freely and fairly compete to be designated as a national college football champion" and thus, it deprives these institutions of a competitive stake in the "millions of dollars a year of potential revenue [that instead goes to affiliated NCAA] institutions [in the traditional power conferences]."

The BCS, for those who are not college football maniacs, is the selection system that the NCAA uses in order to determine which two Division-I institutions will play in the national title game. It uses a complex formula that incorporates an average of six computer selection rankings, which judge, among other factors, the strength of schedule of participant institutions, along with human polls compiled by various college football coaches (the USA Today/Coaches Poll), members of the Associated Press (The AP Poll), and members of Harris Interactive (the Harris Poll). College football is presently the only NCAA-sponsored sport that does not utilize a tournament to determine its national champion.

The Supreme Court has held that some collaborative activity within the NCAA--which could otherwise produce illegal anticompetitive results in other contexts--is outside the scope of antitrust scrutiny. See Nat'l Collegiate Athletic Ass'n v. Bd. of Regents of Univ. of Oklahoma, 468 U.S. 85, 117 (1984) (concluding that the NCAA requires a “certain degree of cooperation . . . if the type of competition that . . . member institutions seek to market is to be preserved.”). But this case does not give the NCAA or its member institutions a carte blanche to institute whatever type of rule they want regardless of the potential for anticompetitive harm. See id. (suggesting that rules likely to be overtly anticompetitive may not be permissible).

Thus, Attorney General Shurtleff could conceivably prevail in a case like this if he could show that the likelihood of anticompetitive harm of the BCS's system for selecting a national champion outweighs its plausible pro-competitive benefits. There are, to be sure, substantial advantages associated with the joint collaboration of academic institutions; this is particularly true with respect to athletics (more on this below). But is any NCAA member institution (in Division I) really denied a legitimate shot at the national title under the current BCS system? And, if so, is there sufficient anticompetitive harm to outweigh any pro-competitive benefits the system offers? Probably not, as John Patashnik at The Plank notes:

There is an argument that can be made in this vein against the BCS--but the problem for Utah is that it doesn't happen to correspond to their particular grievance this year. Utah's current beef is that it was excluded form the national championship game despite its undefeated record. But, critically, in the context of the national championship game, the BCS doesn't discriminate against Utah or other members of non-BCS conferences. The national championship game matches the top two teams in the country, regardless of what conference they come from. . . . [A]s SMU law profession C. Paul Rogers III noted in a 2008 article in the Marquette Sports Law Review . . . it's unlikely a plaintiff could demonstrate that the BCS's conduct (as opposed to the conference structure of college football more generally) serves to exclude non-BCS schools from the championship game, which would be required under the Sherman Act.

While I grant that the BCS computer selection process may itself pose a flaw that prevents meaningful substantive judgment of just who deserves a shot at the national title, the system does have some pro-competitive benefits. There are arguments both against, and in favor of, antitrust liability in this case, but these arguments have practical limitations and may, if taken too far individually, prevent college football from continuing to thrive. On the one hand, it is patently clear that collective rules are needed in order to choose a national champion; sports leagues simply need some means to do this. Further, there cannot be much doubt that the BCS presides over a status quo that, overall, provides exposure and massive financial benefits for a substantial number of Division I football institutions--i.e., the dozens of bowl games with televised contracts which create opportunities for participating universities to showcase their talents and educational programs. Yet, the current convoluted system, which is so complicated that it requires experts to explain its particular mechanics, would seem to militate in favor of adopting some sort of playoff system—a step which might introduce a level of predictability and fairness to the process of selecting teams to play in the championship. The Mountain West Conference is lobbying Congress for that precise solution, and even President Obama has weighed favorably on the issue.

It should be interesting to see if the system gets an overhaul. If a playoff is adopted, I hope that the NCAA finds a way to still provide some sort of a post season to the roughly 100 institutions that benefit from the current system. However, as it now stands, it is not likely that anything will happen until after 2010, when the BCS contract with Fox runs out.