10-02-2003, 09:09 PM
The NCAA News -- September 29, 2003
BCS backers forward flawed defense
By Gary R. Roberts
Tulane University
The Bowl Championship Series is an illegal cartel, pure and simple, Penn State President Graham Spanier's and BCS lawyer William Mont's article in the September 1 NCAA News notwithstanding.
I admit that this assertion is speculation until the courts agree. I also admit that if the case were tried in Baton Rouge, Tallahassee, Columbus, or some other shrine of major college football, the chances of a jury finding against the BCS are less than certain. Nonetheless, if presented to a neutral jury, the BCS would surely be found to violate Sherman Antitrust Act section 1 as an agreement in restraint of trade.
Why so? Simply, because rather than allow the free market to work, the BCS preselects which will be the major bowls, and which teams are eligible for a major bowl and the national championship and to share in virtually all of the postseason revenues. (BCS schools received more than 95 percent of the $109 million in 2002 postseason revenue.) This has exacerbated the huge gap in revenue and status between BCS and non-BCS schools, rendering it impossible for a non-BCS school to recruit a critical mass of elite-level athletes, attract and retain top coaches, build first-class facilities, garner national media attention and television appearances, and consistently attract large crowds. The BCS greatly exacerbates and perpetuates a caste system that cannot be broken. Had the BCS been in place 30 years ago, Florida State and Miami would still be second-rate programs, the Fiesta Bowl would be a second-rate bowl, and Brigham Young never would have had a chance to win its 1984 national championship.
BCS defenders argue that it has made a national championship game more likely. They also note that before the BCS, almost all of the major bowl slots went to schools now in BCS conferences (and Notre Dame). They fail to note, however, that the previous system of comprehensive bowl-conference tie-ins was also illegal -- a web of illegal exclusive dealing arrangements under section 3 of the Clayton Antitrust Act. Thus, they fallaciously suggest that the BCS is legal because it is better and no more exclusionary than the previous illegal system.
Initially, I do not agree that the BCS is no more exclusionary than the old bowl tie-in system. It may have been infrequent, but BYU's 1984 national championship and Louisville's 1990 Fiesta Bowl appearance were at least possible, unlike today. Don't be fooled by the canard that a non-BCS school can qualify for a major bowl by finishing in the top six of the BCS's computer ranking. There is no conceivable scenario under which a non-BCS team can make the carefully devised system's top six, given the importance of strength of schedule and the fact that non-BCS schools must play most of their games within their conference against other non-BCS teams. Tulane and Marshall finished their seasons in 1998 and 1999 undefeated yet didn't come close to a major bowl slot, let alone the championship game, and the same almost happened to BYU in 2000 until its star running back was injured before its 12th and final game in Hawaii. Under the current scheme, there will never be a non-BCS school in a major bowl game. The post-1994 world is clearly more exclusionary than before.
But that aside, the BCS's only arguable antitrust justification (that is, procompetitive benefit) is that it has increased the chances of having a true national championship game every year. Whether that is a sufficient benefit to consumers to justify its exclusionary impact on non-BCS schools and bowls would be a balance a jury could resolve either way. But what makes the BCS so clearly illegal is that regardless of how one balances its benefits and harms (whether compared to the superseded illegal bowl tie-in system or a true free market), the BCS could never pass the third prong of the antitrust rule of reason -- the less restrictive alternative test. There can be no doubt that a playoff would be even more certain than the BCS to produce the same benefit (a national championship game) while eliminating many of the BCS's exclusionary anticompetitive effects.
Given such an obvious less restrictive alternative, a good antitrust trial lawyer would have a field day with the BCS in a highly publicized spectacle. Imagine a skilled lawyer cross-examining a BCS president about opposition to a playoff because it puts too much academic burden on the athletes, especially given the often mid-semester playoffs in every other sport and every other football division. Imagine a BCS president being cross-examined about not wanting to diminish the pageantry of the bowls given that virtually every bowl would far prefer to be part of a playoff leading to the national championship than be irrelevant and ignored like today. The current commercial culture of big-time college football would be put on trial and fully exposed. Few BCS schools would be proud of the revelations or happy with the outcome.
What might comfort the BCS overseers is not that the BCS is lawful, but that it is unlikely ever to be sued since no victim dares to take it on alone. Putting aside the huge financial cost of litigation against a powerful deep-pocketed opponent, any school taking the lead in such a suit would be the pariah of college sports. Its president and AD would risk being blackballed and professionally marginalized. All of its teams, not just football, would soon likely encounter great difficulty in scheduling opponents or making it off the bubble into postseason tournaments. Who knows how far the repercussions would extend -- perhaps even to academic relationships. A school would even risk losing critical federal grants from a Congress that has two senators from Alabama, Ohio, Nebraska, Oklahoma, etc. The BCS is an enormously powerful entity that one will threaten at great peril. It will take a large number of non-BCS schools banding together to be able to withstand the economic and political fallout, and so far that coalition has not emerged.
So the BCS goes on, with its false claim of reflecting a free market (about like OPEC) and its flimsy opposition to a playoff to protect the otherwise illusory academic welfare of the players. But unless some day soon the BCS's victims band together to challenge this cartel, they may, either literally or for all practical purposes, find themselves permanently out of the Division I-A football business.
Gary R. Roberts is the faculty athletics representative at Tulane University and director of the sports law program at Tulane Law School.
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BCS backers forward flawed defense
By Gary R. Roberts
Tulane University
The Bowl Championship Series is an illegal cartel, pure and simple, Penn State President Graham Spanier's and BCS lawyer William Mont's article in the September 1 NCAA News notwithstanding.
I admit that this assertion is speculation until the courts agree. I also admit that if the case were tried in Baton Rouge, Tallahassee, Columbus, or some other shrine of major college football, the chances of a jury finding against the BCS are less than certain. Nonetheless, if presented to a neutral jury, the BCS would surely be found to violate Sherman Antitrust Act section 1 as an agreement in restraint of trade.
Why so? Simply, because rather than allow the free market to work, the BCS preselects which will be the major bowls, and which teams are eligible for a major bowl and the national championship and to share in virtually all of the postseason revenues. (BCS schools received more than 95 percent of the $109 million in 2002 postseason revenue.) This has exacerbated the huge gap in revenue and status between BCS and non-BCS schools, rendering it impossible for a non-BCS school to recruit a critical mass of elite-level athletes, attract and retain top coaches, build first-class facilities, garner national media attention and television appearances, and consistently attract large crowds. The BCS greatly exacerbates and perpetuates a caste system that cannot be broken. Had the BCS been in place 30 years ago, Florida State and Miami would still be second-rate programs, the Fiesta Bowl would be a second-rate bowl, and Brigham Young never would have had a chance to win its 1984 national championship.
BCS defenders argue that it has made a national championship game more likely. They also note that before the BCS, almost all of the major bowl slots went to schools now in BCS conferences (and Notre Dame). They fail to note, however, that the previous system of comprehensive bowl-conference tie-ins was also illegal -- a web of illegal exclusive dealing arrangements under section 3 of the Clayton Antitrust Act. Thus, they fallaciously suggest that the BCS is legal because it is better and no more exclusionary than the previous illegal system.
Initially, I do not agree that the BCS is no more exclusionary than the old bowl tie-in system. It may have been infrequent, but BYU's 1984 national championship and Louisville's 1990 Fiesta Bowl appearance were at least possible, unlike today. Don't be fooled by the canard that a non-BCS school can qualify for a major bowl by finishing in the top six of the BCS's computer ranking. There is no conceivable scenario under which a non-BCS team can make the carefully devised system's top six, given the importance of strength of schedule and the fact that non-BCS schools must play most of their games within their conference against other non-BCS teams. Tulane and Marshall finished their seasons in 1998 and 1999 undefeated yet didn't come close to a major bowl slot, let alone the championship game, and the same almost happened to BYU in 2000 until its star running back was injured before its 12th and final game in Hawaii. Under the current scheme, there will never be a non-BCS school in a major bowl game. The post-1994 world is clearly more exclusionary than before.
But that aside, the BCS's only arguable antitrust justification (that is, procompetitive benefit) is that it has increased the chances of having a true national championship game every year. Whether that is a sufficient benefit to consumers to justify its exclusionary impact on non-BCS schools and bowls would be a balance a jury could resolve either way. But what makes the BCS so clearly illegal is that regardless of how one balances its benefits and harms (whether compared to the superseded illegal bowl tie-in system or a true free market), the BCS could never pass the third prong of the antitrust rule of reason -- the less restrictive alternative test. There can be no doubt that a playoff would be even more certain than the BCS to produce the same benefit (a national championship game) while eliminating many of the BCS's exclusionary anticompetitive effects.
Given such an obvious less restrictive alternative, a good antitrust trial lawyer would have a field day with the BCS in a highly publicized spectacle. Imagine a skilled lawyer cross-examining a BCS president about opposition to a playoff because it puts too much academic burden on the athletes, especially given the often mid-semester playoffs in every other sport and every other football division. Imagine a BCS president being cross-examined about not wanting to diminish the pageantry of the bowls given that virtually every bowl would far prefer to be part of a playoff leading to the national championship than be irrelevant and ignored like today. The current commercial culture of big-time college football would be put on trial and fully exposed. Few BCS schools would be proud of the revelations or happy with the outcome.
What might comfort the BCS overseers is not that the BCS is lawful, but that it is unlikely ever to be sued since no victim dares to take it on alone. Putting aside the huge financial cost of litigation against a powerful deep-pocketed opponent, any school taking the lead in such a suit would be the pariah of college sports. Its president and AD would risk being blackballed and professionally marginalized. All of its teams, not just football, would soon likely encounter great difficulty in scheduling opponents or making it off the bubble into postseason tournaments. Who knows how far the repercussions would extend -- perhaps even to academic relationships. A school would even risk losing critical federal grants from a Congress that has two senators from Alabama, Ohio, Nebraska, Oklahoma, etc. The BCS is an enormously powerful entity that one will threaten at great peril. It will take a large number of non-BCS schools banding together to be able to withstand the economic and political fallout, and so far that coalition has not emerged.
So the BCS goes on, with its false claim of reflecting a free market (about like OPEC) and its flimsy opposition to a playoff to protect the otherwise illusory academic welfare of the players. But unless some day soon the BCS's victims band together to challenge this cartel, they may, either literally or for all practical purposes, find themselves permanently out of the Division I-A football business.
Gary R. Roberts is the faculty athletics representative at Tulane University and director of the sports law program at Tulane Law School.
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