In the spirit of a little good-natured debate, and because I ultimately come out differently on the merits of the issue, I thought I'd take the time to offer a few counter-arguments to
Mike's thoughtful commentary yesterday regarding the legality of the Bowl Championship Series.
To begin, though, I agree with a lot of what Mike wrote. For instance, I agree that the
BCS can credibly argue that it has created several pro-competitive benefits, such as the creation of a national championship game. I also agree that an antitrust suit against the
BCS would itself be unlikely to directly result in the creation of a playoff (although I do believe that a verdict against the
BCS would ultimately pave the way to the NCAA adopting a playoff).
However, where I differ from Mike is that I do not think that the pro-competitive benefits created by the
BCS would necessarily save the system under antitrust law. Specifically, as
Gabe Feldman's excellent 2009 law review article illustrates, when applying the rule of reason most courts would not only balance the system's pro- and anti-competitive effects, but would also (for better or worse) consider whether the
BCS's pro-competitive benefits could be similarly achieved via less restrictive, alternative means. In other words, courts would ask whether the
BCS could create the same pro-competitive benefits in another way, one that doesn't carry the same anti-competitive ramifications.
For example, I have
previously argued that the
BCS can be accused of violating antitrust law by unequally distributing its revenue to the disadvantage of the non-automatically qualifying, so-called "non-
BCS Conferences." Notably, following last season, the
BCS distributed at least $18 million in revenues to each of the six
BCS Conferences, while the five non-
BCS Conferences collectively received a total of only $24 million, despite two non-
BCS schools (Boise State and
TCU) having been selected to participate in
BCS bowl games. Should a group boycott claim be asserted against the
BCS on this basis, the creation of a national championship game is unlikely to save the
BCS under the rule of reason, because a plaintiff could easily argue that this same pro-competitive benefit could be obtained in a less restrictive system, one where all
BCS participants are rewarded equally (or, at least, more fairly) for their participation, regardless of their membership in a
BCS Conference. Therefore, because I believe that the
BCS is unable to point to a pro-competitive benefit that could not likewise be obtained via less restrictive, alternative means, I believe that it fails to satisfy the rule of reason.
Also, while I agree with Mike that the use of computer ranking systems in the
BCS would normally support the legality of the current system, in this case I think that that benefit is mitigated by the questionable reliability of the
BCS's computer systems. In particular, as Jeff
Passan and Dan
Wetzel (authors of the must-read "
Death to the BCS") have pointed out, the
BCS's computer rankings fail to account for margin of victory, an omission that renders them of highly questionable merit, and has actually resulted in
several prominent statisticians calling for a formal boycott of the BCS. The omission of margin of victory most directly impacts schools from the non-
BCS Conferences, who generally have to rely on beating lesser competition by significant margins as evidence of their competitive strength. Moreover, just this week
several errors resulting from computer miscalculations were discovered in the final BCS Standings, highlighting the lack of safeguards and transparency in the present system.
Similarly, while I also agree that maintaining the significance of the regular season in theory provides a strong pro-competitive argument in favor of the
BCS, one can argue that the
BCS on balance actually detracts from the regular season for several reasons. First, in the
BCS-era major conference teams have become
increasingly less likely to schedule challenging regular season, non-conference games, for fear of sustaining a crippling early season defeat. More significantly, though, the
BCS renders the vast majority of Division I football games irrelevant to the national championship race, including any late-season games not featuring one of the handful of teams still in the title race.
Finally, Mike also notes that the
BCS could defend itself from a claim that it unfairly discriminates against the non-
BCS Conference teams by arguing that the current selection process and revenue distribution policies simply reflect the current competitive landscape, in which demand is higher for games involving
BCS Conference schools. Indeed,
University of Nebraska chancellor Harvey Perlman has himself made this very argument in defense of the BCS. The problem with this argument is that over the last few years
BCS bowl games involving schools from non-
BCS conferences have
actually generated higher television ratings and stadium attendance than some BCS games involving only BCS Conference schools. Most notably, the TV ratings for last year's showdown between non-
BCS schools Boise State and
TCU in the Fiesta Bowl outdrew the Orange Bowl (featuring two
BCS Conference schools) by a significant margin. In any event, this defense by the
BCS would also likely succumb to the less restrictive alternatives inquiry, in that the
BCS could obtain all of its current pro-competitive benefits under a system in which each conference is rewarded for its own individual contributions. In other words, rather than categorically awarding each of the six
BCS Conferences one large sum of money, while giving the non-
BCS Conferences a significantly smaller sum, the
BCS could instead individually assess the respective contributions of the various participating conferences when deciding how to distribute its revenue. This year, such a system would undoubtedly award a greater share of the pie to third-ranked
TCU and its Mountain West Conference than
unranked UConn and the Big East Conference. Under the
BCS's current revenue distribution policies, though, the Big East will likely take home more than twice as much revenue from the
BCS as will the Mountain West Conference.
Therefore, while reasonable minds can of course differ, I believe that on balance the current
BCS does in fact violate antitrust law. That having been said, given the unpredictable nature of the jury trial process, I admit that the outcome of an antitrust suit against the
BCS would be far from certain.
For more on these (in my mind) fascinating issues, be sure to check out Mike's forthcoming law review article "
Antitrust, Governance, and Postseason College Football," and my own "
Antitrust & The Bowl Championship Series."
In what is usually one of the slowest news weeks, a controversy rages over President Obama’s reported conversation with Jeffrey Lurie, the owner of the Philadelphia Eagles, praising the franchise for giving Michael Vick a chance to perform after serving a twenty-three month prison sentence for dog fighting and related charges.
