Running interference

Utah Attorney General Mark Shurtleff took one of his state’s most painful un-redressed grievances to the Department of Justice in Washington last month. Shurtleff wants the DOJ to launch an antitrust suit against the Bowl Championship Series—the partnership of 66 universities that controls the allocation of spaces in the NCAA Division I football’s season-ending bowl games.

His state’s University of Utah, a non-BCS school that will join the BCS by switching to a new conference next year, is seen as one of the main historic victims of the BCS’s cartel-like behaviour. Instead of holding a large, inclusive playoff tournament like those conducted for other NCAA-regulated sports—including the lower divisions of NCAA football itself—the BCS uses a combination of polls and computer ranking algorithms to choose two teams for a single early January game to decide a national champion.

Teams not belonging to the partnership are theoretically eligible for selection to the final game, but none has ever been picked. In 2004, five teams, including Utah, finished the regular season undefeated, but only Oklahoma and the University of Southern California were invited to the big game. In 2008, Utah went undefeated again, but the computers preferred two one-loss BCS schools on the basis of schedule strength. Utah actually ended the year as the nation’s only unbeaten squad, but didn’t have a chance to play for the championship.

Polls show that most college football fans loathe the BCS; a Quinnipiac University survey taken late last year had just 26 per cent favouring the current system and 63 per cent wanting an expanded playoff. But the same fans were opposed to federal intervention in college football by a margin of 48 to 45 per cent. Nonetheless, the rumblings have been persistent. President Barack Obama, speaking on both ESPN and 60 Minutes, has expressed his support for a playoff, and while the DOJ may have politely deflected Shurtleff, they are under continual pressure from a higher power—Utah Sen. Orrin Hatch. Meanwhile, there are at least two anti-BCS bills swimming around at the committee level in the U.S. House of Representatives.

This activity may sound like a waste of the time and energy of the U.S. government (especially in a year when the final Auburn-Oregon championship pairing is uncontroversial). But there is more at stake than Platonic ideals of what makes a football champion. The BCS was established in its present form only in 1998, but already there is abundant and fractious legal literature about whether it violates antitrust law. One key question is whether or not the BCS can even be sued; the BCS’s own media guide makes the philosophically remarkable claim that the BCS is “not an entity.” (It goes on, of course, to list various directors and employees of this non-entity.)

Entity or not, the BCS is taking large revenues from the bowl games, which are run by tax-exempt charitable organizations, and redistributing them in a way that appears to favour its members. Of the roughly US$137 million available from the BCS’s ESPN television contract this year, at least US$107 million will go directly to the 66 BCS schools. The 54 non-BCS schools might get as little as US$12 million. In September, the Playoff PAC, a political action committee lobbying for the breakup of the BCS, filed an IRS complaint claiming that bowl organizations have been using tax-exempt cash and state subsidies to pay outsized salaries, buy political influence, hire lobbyists, skirt federal campaign-finance law, and spend in obscure or openly frivolous ways.

It’s precisely these “traditional” bowl games that the BCS is explicitly designed to protect. If college football switched to an eight- or 16-team March Madness-style playoff spread out over several weeks, events like the Rose Bowl would certainly lose some of their special status in the sporting calendar. The BCS defends its system by pointing out that bigger, more prestigious universities in the major conferences have always had a death grip on access to the most prestigious bowls; supporters argue, convincingly, that if anything the BCS has expanded access for the Utahs and the Boise States.

Every scholar has a different opinion on how, and whether, an antitrust attack on the BCS might work. When the NCAA (which has no formal connection to the BCS) has faced U.S. judges in antitrust cases, it has tended to lose when its regulations were found to be purely commercial in nature, and has won when it could establish a bona fide intention to protect educational values or amateurism in athletics. The BCS piously insists that its lack of a prolonged playoff structure is protecting the sanctity of student athletes’ December exams. But the fans seem ready for change, and the 2014 expiry of the current TV contract provides one opportunity for a shift many observers regard as inevitable.