The House Takes on the BCS

As Matt mentioned yesterday, earlier this week the U.S. House of Representatives took further action on H.R. 390, which has a goal "To prohibit, as an unfair and deceptive act or practice, the promotion, marketing, and advertising of any post-season NCAA Division I football game as a national championship game unless such game is the culmination of a fair and equitable playoff system." [Bill Text Here]

This bill was introduced in January 2009 and the action this week, 11 months later, was that the Commerce, Trade, and Consumer Protection subcommittee sent the bill to the full Committee on Energy and Commerce.    From there it needs to be voted out of committee and sent to the House floor.  If it passes there, the bill needs to go through the Senate and signed by President before it becomes law.  If it gets that far, the bill doesn't take effect until January 31, 2011.

The bill has a very long way to go before it becomes law - if we ever get to that point - but let's try to examine why Congress has chosen this topic as something to spend its valuable time on.  The text of the bill identifies college football as interstate commerce and therefore under the direct jurisdiction of Congress.  Given that, Congress certainly has the right to address this topic, but aren't there more pressing things for Congress to deal with? 

I've always been skeptical of Congress getting involved in sports and I don't think this is any different.  However, since our representatives have taken little action on initial hearings on other sports related inquiries (i.e. steroids), I can't imagine this bill will make it out of committee, let alone see the President's desk.  Can you imagine a debate on the House or Senate floor about the pros and cons of a college football playoff?  Neither can I.... thankfully. Let's hope Congress gets back to other issues and leaves sports alone. 

It's Time for a Playoff System in NCAA Football

[Editor's Note: This article was written by Chris Stanley, a third year law student at The Ohio State University Moritz College of Law. Be sure to also read his article on Boise State's Antitrust claim against the BCS system ]

The NCAA should really consider creating a playoff system to determine the national champion in Division I (or FBS) football. There are always a few teams every season who have a legitimate argument that they should be in the championship game, but under the current system, only two teams get that chance. For instance, this season at least 5 teams (1) SEC Champion, (2) Texas, (3) Cincinnati, (4) TCU, and (5) Boise State have a legitimate argument for playing in the championship game. A playoff system would be a much better system in terms of fairly evaluating who to name the national champions. Here is a seven part proposal.

1. An Impartial BCS chairman who is unaffiliated with any school or conference.

2. An 11-member “BCS Committee” (similar to the NCAA Tournament Committee) who ranks teams during the regular season and seeds the teams for the playoffs. Each FBS conference will have equal representation. Independents have no representative.

3. Ranking System: The BCS Committee does all ranking in the place of the AP and Coaches Polls. This takes away things like east coast bias, as well as the problem of voters not watching all teams play games. A computer formula consisting of BCS Committee ranking, strength of schedule, record and point differential computes the “official rankings.”

4. 16 Teams make the playoffs and play for the Championship. 4 rounds, no byes. It is a lot harder for the 17th ranked team (as opposed to number 3) to argue they deserve a shot.

5. Automatic Bids go to the champion of any conference who’s teams have a .400 winning percentage against the current big 6 conferences over the past two years.[1] The rest of the bids go to the highest ranked teams based on the official ranking system. No at-large bids.

6. The regular season is shortened by 1 game. Only three non-conference games. Some university presidents have complained about adding length to the season, which this system does. However, if the playoffs take place in late December and early January, most universities are on winter break and student-athletes don’t miss much additional class, if any.

7. Round one games will not be considered bowl games, and the losers will play each other in already established bowl games to be determined later. The 2nd round games will become the Four BCS Bowl games (Rose, Sugar, Orange and Fiesta) and the losers are finished. The 3rd round will become, the “BCS Semis” and then round 4 is the BCS Championship game, and the losers of these games are finished as well.

[1] Provision number 5 is based on the Mountain West Conference’s recent proposal. This would need to be revamped after a few years in case any of the big 6 conferences lose prestige to other conferences.

Boise State's Antitrust Claim Against the BCS

[This article was written by Chris Stanley, a third year law student at The Ohio State University Moritz College of Law.]

The Boise State Broncos football team has proven that it can compete with the best football programs in the nation on several occasions. Perhaps the most noteworthy example was the victory in the 2007 Fiesta Bowl over the Oklahoma Sooners. Although the Broncos performance in recent years is turning heads, the current bowl system in the NCAA makes it difficult for Boise State to play in the top-tier BCS bowls.

The President of Boise State University has publicly voiced his frustration for the current BCS selection system, and the issue is heating up.[1] In an interview with 60 Minutes, President Obama even suggested a change to the system.[2] Additionally, one of the most vehement opponents of the current BCS system is Senator Orrin Hatch of Utah. He recently suggested that the current BCS system violates the Sherman Anti-trust Act.[3] If a suit is going to come about, I think Boise State would be a good Plaintiff to bring such a suit.

Many football programs are able to benefit from a common cycle that allows them to build their programs: (1) Perform well, (2) Get lots of money for the program from revenues that come from a big bowl game, (3) Use the money to hire the best staff and improve facilities, (4) This leads to better recruiting, (5) This leads to better performance, and we are back to the start of the cycle.

This cycle, however, only applies to certain teams under the current BCS system. Why is that? I don’t think the NCAA can really provide a reasonable answer to this question. Why, BCS committee members, does Boise State not have the same opportunities as, say, Ohio State or Oklahoma (whom they recently defeated in a BCS game) to reach the BCS bowl games and get the big bucks, allowing the program-building cycle to benefit the Broncos equally? One can argue that this restraint of trade is unreasonable, and that an antitrust suit is ripe. Below, I will take a second to lay out the basics of that suit, and then analyze Boise State’s case.

THE ANTITRUST SUIT

To win under Section 1 of the Sherman Act, Boise State must show that the restraint of trade is unreasonable. This can be difficult in the context of sports, but it is possible. As the Supreme Court held in NCAA v. Board of Regents of Oklahoma, restraints that ordinarily would be held "illegal per se" in other business contexts will get rule of reason analysis in the context of sports.[4] This is the case here because restraint of trade is essential if the NCAA football product is to be available at all. Given the unique nature of college football (and other sports) and the need to have competitive matchups, the NCAA will likely be given some leeway to evaluate the competitive character of bowl games as they see fit. Therefore, this case will undoubtedly be analyzed under the rule of reason.

Boise State should not have any difficulty demonstrating that the BCS method of selecting teams and distributing revenue is a sufficient restraint of trade to shift the burden to the NCAA to justify this restraint of trade. The NCAA will likely offer an affirmative defense in an attempt to justify this deviation from free market principles. The NCAA will probably argue that the BCS system is aimed at creating a competitive environment. However, there are several factors that might make Boise State a candidate to defeat this argument when raised by the NCAA. If they can defeat this argument and show that less-restrictive alternatives exist, they can win an antitrust suit against the current BCS system.

BOISE STATE’S CASE

In my opinion, the most competitive BCS Bowl game of the 2007 bowl season was the Boise State vs. Oklahoma matchup in the Fiesta Bowl. The Broncos got their shot at a BCS game, and they won. This epic game was the buzz of the offseason, and is still remembered as one of the best games in college football history. Everyone seems to remember the statue of liberty play or the hook and lateral from that game. What many people don’t remember is that Boise State finished as the only undefeated team that season. Although they were the only team not to lose a game they were not the national champions. That honor, and all the money that goes along with it, went to the 1-loss Florida Gators.[5]

During the selection process for the 2009 BCS bowls, Boise State was not chosen to compete in a prestigious BCS game. Despite being 12-0 and ranked higher than Ohio State in the BCS rankings, Ohio State got the at-large bid to play Texas in the Fiesta Bowl.[6] So what is really going on here? The current system in place for choosing teams to compete in BCS games selected a team that was ranked lower, but why? Is this restraint of trade really promoting competition?

Boise State has a strong argument that the system is not promoting competition, but is unfairly colluding to discriminate against schools that are not in the six major conferences.[7] The last time Boise played a Big 12 team in a BCS game, they won and it was one of the most competitive games all season. In 2009, they were ranked higher than Ohio State and should have played in the Fiesta Bowl against Texas, a Big 12 team.

This season Boise beat Oregon when Oregon was ranked 16th in the country. The Broncos are currently undefeated, and may or may not receive a BCS birth. Many commentators point out that the Broncos play a weak schedule and do not deserve a BCS birth because of this. They might have a point about the schedule, but Boise is barred under the current system from doing anything about who they play. They are destined for San Diego County Credit Union Poinsettia Bowl after Other Crappy Bowl because nobody will play them.

They sent out an open invite to any big time schools to play them at the home field of the big time school.[8] No takers. None of the schools from the big conferences want to play Boise State. The Broncos can’t change the conference they are in either, so they are just stuck playing a weak schedule unless the big schools will agree to play them. So far, when the big schools have played Boise, it hasn’t worked out too well for the big schools (Oregon and Oklahoma).

Boise might argue that this looks like an implicit agreement between the BCS conference contenders to keep BSU, and other schools like it, out. In fact, BSU’s president has hinted at such collusion along with Orrin Hatch and many others.[9]

If you look at all these factors together, Boise can argue that there is a presumption against allowing BSU to play in a BCS game. This presumption favors the 6 major conferences that get automatic bids to the BCS bowls as well as most at-large bids. They can argue that this is an unreasonable restraint of trade. It would be reasonable if based on accurate assumptions aimed at promoting competition, but BSU has proven that the assumptions are unreasonable by winning against the best. Furthermore, it is beginning to look more like the BCS is set up as it is to keep revenue distribution within the big six conferences, and less like an attempt to increase competition.

THE NUMBERS

To quote Senator Hatch, the current BCS system is “an agreement between the preferred conferences and the major bowl games as to how they will compete with one another and, more apparently, how they will compete against the non-preferred conferences. Worse still, under the current BCS regime, each of the six privileged conferences is guaranteed to receive a large share of the BCS revenue to distribute among their member schools. The remaining five conferences, which include nearly half of all the teams in Division I, all share a much smaller portion of the BCS revenue, even if one of their teams is fortunate enough to play their way into a BCS game. Over the lifetime of the BCS, the preferred conferences have received nearly 90 percent of the total revenues.”[10] That leaves only 10% for the remaining five conferences.

Another interesting fact is that the chairman of the ACC is the head of the BCS. Boise can argue that he has an interest in keeping the revenues where they are, not in diluting the revenue of the ACC teams for the sake of competition. The WAC chairman recently hired a PR firm to improve Boise’s bid at a BCS game this season.[11] I wonder what type of steps the head of the ACC (and BCS) takes to improve the prospects of schools in the ACC or other schools in the big conferences? This conflict of interest has really not been discussed that much, but when you look at the numbers, it is a glaring problem for the BCS if the system intends to at least appear impartial.

CONCLUSION

Boise State can argue that the BCS discriminates against football programs not housed in a major conference by creating a presumption against those programs getting a BCS birth and all of the benefits that come with BCS births. They can argue that this is an illegal restraint of trade, and there are several options that are less restrictive:

(1) Keep the automatic bids for the big 6 conferences, but give at-large bids to teams based on BCS computer rankings. This eliminates financial considerations that may result in 10th ranked Ohio State getting a Fiesta Bowl Bid over 9th ranked Boise.

(2) Take the top 10 ranked teams at the end of the season using the current formula rather than guaranteeing certain conferences automatic bids.

(3) Change the formula altogether so voters who don’t watch every team (such as Utah, BSU, and Hawaii) are not the ones determining outcomes that affect multi-million dollars at institutions (most state funded by taxpayer money) of higher learning.

(4) Allow BSU to play a tougher schedule so they have a chance to play in big games under the current formula. Maybe allow teams to join BCS eligible conferences if they perform well.

(5) A playoff system.

[1] See President Kustra’s comments at: http://news.boisestate.edu/blog/2009/10/antitrust-implications-of-the-bcs-system/
[2] Michael Wilbon, When the President-Elect Talks, The BCS Should Listen, available at: http://www.washingtonpost/ .com/wp-dyn/content/article/2008/11/18/AR2008111803615.html
[3] See his comments at: http://hatch.senate.gov/public/index.cfm?FuseAction=PressReleases.Detail&PressRelease_id =56f346ed-1b78-be3e-e09d-5fcd7bca8fcd&IsTextOnly=0
[4] 468 U.S. 85 (1984).
[5] Similarly, last years Utah Utes went undefeated after winning their BCS game, only to finish 2nd in the final rankings.
[6] Instead of a BCS bowl, Boise got a bid to the San Diego County Credit Union Poinsettia Bowl.
[7] The SEC, Big 10, PAC 10, Big 12, ACC, and Big East all get automatic bids to the BCS games, and they are frequently chosen over schools from other conferences for at-large bids as well.
[8] Dan Wetzel, Boise BCS Blocked, available at: http://rivals.yahoo.com/ncaa/football/news?slug=dw-boise110709&prov=yhoo&type=lgns
[9] See President Kustra’s comments at: http://news.boisestate.edu/blog/2009/10/antitrust-implications-of-the-bcs-system/
[10] See his comments at: http://hatch.senate.gov/public/index.cfm?FuseAction=PressReleases.Detail&PressRelease_id =56f346ed-1b78-be3e-e09d-5fcd7bca8fcd&IsTextOnly=0
[11] PR Firm Hired to Make Push for Boise State, available at: http://sports.espn.go.com/ncf/news/story?id=4623676.