The BCS System: Could it be an illegal restraint on trade?

First, I would like to thank Greg and Mike for inviting me to speak this week in Greg's absence. I'm an avid reader of the Sports Law Blog, and these guys provide a great service to the sports law community.

Well, we're right in the thick of the college football season. Two weeks from now, the BCS football rankings will be revealed and the quest officially begins for the two best college football teams that will compete for the national championship -- that is, according to the system devised by the BCS conferences (ACC, Big East, Big 10, Big 12, Pac-10 and SEC). USA Today reporter Steve Wieberg recently wrote an interesting article ("BCS: Boon or bust?" 9/23/05), in which he highlighted some of the arguments for and against the BCS system that combines several polls and rankings of schedule strength. Wieberg pointed out some of the system's inherent flaws, including the games "it didn't get right":

--One championship-game qualifier (Florida State in 2000) nudged out another contender to which it lost (similarly once-beaten Miami, Fla.).
--In 2001, Nebraska didn't even win its conference title, getting blown out 62-36 in its regular-season finale.
--And there was nothing like 2003, when Southern California finished the regular season atop both the coaches' and media polls and didn't make the two-team cut.

I'm a skeptic when it comes to the use of statistics in sports, and I personally would like to see some sort of a playoff system devised for college football. I just can't get comfortable with polls and computers determining the top two teams that should compete for the national title. Look at the results this past weekend based upon the most recent USA Today poll:

--No. 5 Florida was demolished by No. 16 Alabama
--No. 12 Michigan State (which beat Notre Dame earlier this year) lost to unranked Michigan (which lost to Notre Dame earlier this year). And today, Michigan is ranked five spots lower than MSU, and Notre Dame is ranked seven spots higher than MSU. It's confusing, I know.
--No. 18 Virginia lost to unranked Maryland.
--No. 19 Minnesota lost to unranked Penn State.
--Oh, and No. 1 Southern Cal had two relatively close come-from-behind victories the past couple of weekends.

From a legal standpoint, an interesting question is whether the BCS could be subject to an antitrust attack under Section 1 of the Sherman Act, which prohibits agreements that seek to destroy or limit competition. Under the BCS system, six of the eight available slots in the elite bowl games (Rose, Fiesta, Sugar and Orange) go to the champions of the six BCS conferences and one of those bowl games determines the national championship. A non-BCS school may get one of the other two remaining slots if it is ranked in the top six as determined by the BCS computer ranking system. So in other words ladies and gentlemen of the jury: The six largest athletic conferences got together and agreed that the teams in their conferences have the toughest schedules and should, therefore, have a greater opportunity to compete for a national title to the exclusion of an undefeated team that simply does not compete at their level according to them (such as a Tulane in 1998 or a Utah in 2004), and they devised a system to accomplish those ends.

Typically, the focus of the antitrust laws is whether the consumer (the fan) is harmed by the restraint. Wieberg disclosed the results of a USA Today/CNN/Gallup poll in which 453 college football fans were asked to opine on the BCS system, 45% said their opinion was at least somewhat negative and 40% at least somewhat positive. I wouldn't call that a "ringing" endorsement from the consumer. Throw in the fact that, as Wieberg notes, the BCS has evolved into one of the most recognizable brands in sports, paying out more than $120 million annually, and I think it would be difficult for a judge not to send the case to a jury.

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