Twice last week on Twitter I asked if you were tired of hearing about antitrust suits because I was considering writing a piece about why one brought against the BCS wouldn’t result in a playoff for college football. Despite hearing the word “antitrust” for months in conjuntion with the NFL, the unanimous response was that you wanted to hear more if it concerned what a suit would mean to college football as we know it.
If you’ve read my work, you probably know I like to play devil’s advocate on this topic. I believe an antitrust suit brought against the BCS has a slim chance of being successful and, more importantly, that even if it were successful, it would not result in a national championship playoff.
I can hear you already, “But, Kristi, the current system isn’t fair.” Therefore, it must violate antitrust law, right? Wrong. To understand, I need you to take off your fan hat and put on your CEO hat. College football is a business, like any other sport. It is run in a way that makes the most money for the people at the top. I have no idea why many fans think the sport’s power brokers – the top conference commissioners, TV partners, bowl officials – would voluntarily change to a system that would provide them with fewer benefits. They care about control and money, and they have both under the current system.
And here’s the key argument: The current system is better than the old system.
Would a playoff be better? Many think so, but that’s now how antitrust law works. The number-one issue I find with the analysis of many is the mistaken belief the court will compare the current system to a playoff system. Antitrust law will require the court to compare the current system to the old system.
The court will employ a “rule of reason” test. The court will look at why the current system was put into place, what the landscape was like before and after the current system was adopted, the effect of the current system, the history of college football post-season, and the reasons for adopting the system as-is.
Antitrust law is also applied less stringently in situations like this where the challenged conduct is necessary in order to produce the outcome. In other words, the a collaboration between conferences (here, in the form of the BCS) is necessary in order to produce a national championship game. Prior to the BCS, there were merely bowl games with traditional conference alignments and no matchup between the number one and two teams. Is it necessary to choose the number one and two teams the way they do? No, but that’s not really the issue at hand.
The issue is whether the collaboration that makes up the BCS is necessary and whether that collaboration has improved competition compared to past practices. I think it’s clear the BCS is an improvement over the old bowl system, particularly because of the access afforded non-AQ teams. Overall, the entire picture has improved: the number one and two teams as determined by an agreed upon formula meet each other to crown a champion, ratings and popularity are up, and access is improved for many.
In addition, Utah Attorney General Mark Shurtleff, who says he’ll be bringing a suit in the next two months, must show consumer harm. In other words, he must show that college football fans re somehow monetarily harmed by the current system. That’s going to be tough. As I said before, the court will look to how the consumer is affected under the current system compared to the old system – not compared to how they would benefit under a playoff system. Most commentary discusses how non-AQ schools are harmed, but that won’t be the focus of a lawsuit. Antitrust law first and foremost seeks to protect the consumer.
Speaking of the schools involved, there are some wrinkles even if a court were to focus on the ways in which they are harmed. Some judicial circuits have their own tests and case law that would affect the outcome differently depending on where a suit was filed.
For example, the Ninth Circuit has a “but for” test which bars the plaintiff (let’s pretend it was a non-AQ school here) from recovery if the conspiracy would not have occured, but for the plaintiff’s participation. The non-AQ schools, through their conferences, agreed to the BCS system and willingly continue to participte in it, which would be a problem under this test. The test goes on to look at the degree of participation of the plaintiff versus any defendant, but that analysis is too long to go into here.
Another point I want to address is a comment from Utah’s Attorney General that illustrates another mistaken belief by some. Shurtleff says his suit will, “ask the judge to order some way to fix it. It’s not my call on how to fix it, but I think clearly (it would be) to go to a playoff and eliminate the BCS.” The only problem is that’s not how antitrust cases work.
A judge cannot order college football to institute a playoff. A judge can award treble (or triple) damages and can even issue an injunction, forcing a new system to be adopted, but a judge cannot dictate what that system will be. Although a judge could say in dicta (sort of like a side note in a ruling that doesn’t carry any actual legal weight) what sort of system would be allowable under antitrust law, the judge cannot order what system will be put in place.
Even without the judge ordering a playoff, many assume this would be the outcome if the current system was found to be in violation of antitrust law. However, the powers that be could just as easily allow a return to the old bowl tie-in system. Yes, I know they would make more money with a playoff, but it’s not always about money. In this case, it would be about control. The guys at the top are not going to give up control of post-season college football just because a few extra bucks could be made with a playoff system.
Andy Staples does a great job of describing how a return to the old system might work out in this piece for Sports Illustrated. One important thing to note in his piece is the effect on not only the non-AQs, but also the ACC and Big East. This illustrates how high risk an antitrust suit could be for many schools, not to mention the extreme expense of litigating a suit of this nature. He also goes into how the have-nots could gain superior voting power in he BCS under a return to this system, but that includes a lot of what-ifs and is beyond the scope of what I want to cover here.
Please note that I have barely skimmed the surface here in terms of antitrust arguments that could be made. Not only are there vast intricacies of the law, but some judicial circuits have their own tests that have been adopted and their own unique case law that might affect the outcome of the case. It would take an entire law review article to analyze an antitrust suit of this magnitude from every angle.
Despite all I have said here, I think one can make a case on the other side as well. I just see that side well-represented in the media, so I wanted to give this angle some attention and try and give the casual fan a glimpse into why it’s not an open and shut case for those opposing the BCS.
This article offers the personal observations of Kristi Dosh, and does not represent the views of her law firm or its clients. Any information contained herein does not constitute legal advice. Consult your own attorney for legal advice on these matters.
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