Deciding College Football's National Champion

The Political and Legal Challenges to the BCS Bowl Series

Aug 27, 2009

Critics want to stop the BCS from allegedly restricting participation in major bowls and the Football College Championship. A possible approach is to use antitrust laws.

The BCS (Bowl Championship Series) was created in 1998 to crown the champion of NCAA Division 1 football. Ever since, there have been complaints that the rules governing eligibility for the BCS bowls are exclusionary and often deny the crown to the most deserving team. In 2009, Utah (13-0), USC (12-1), and Texas (21-1) were all denied a shot at the title. Recently, demand for change has escalated, even coming from the White House and U.S. Senate.

Leading up to the BCS

While there are numerous minor bowls, the major bowl games have been in place since the 1930s. Bowl games were organized by local businesses to boost revenues. Methodology for choosing teams varied; most bowls had contracts with individual conferences to provide teams based on standings. As such, the chosen teams may or may not have been nationally well-ranked, or one team could be substantially better. In particular, TV networks, having paid top dollar for broadcasting rights, complained of dull games.

In 1998, an agreement was reached among six conferences (Big East, Atlantic Coast, Big 12, Southeastern, Big 10, and PAC-10), Notre Dame, the Rose Bowl, and ABC for a bowl series culminating in a national champion. The current system uses a BCS designed formula to decide which teams will play in four major bowls (Rose, Sugar, Orange, and Fiesta) as well as which two teams will play in a fifth bowl for the national championship.

Skewed Bowl Game Participation

Since the system began, member conference teams have dominated play in the major bowls.There have been 90 appearances by BCS conference teams and only 4 by non-conference teams (3 of which were in the last three years after the BCS changed rules to quiet controversy). And appearances translate to money. As Senator Orrin Hatch noted in hearings "over the lifetime of the BCS, the preferred conferences have received nearly 90 percent of the total revenues."

Orrin Hatch Leads the Charge

Politicians are not leaving the BCS alone. Last December, President Obama commented to CNN reporters, "If I'm Utah, or if I'm USC, or if I'm Texas I might have some quibble."

However, it is Senator Hatch who is leading the charge, aggressively reacting to his constituents' outrage when Utah was excluded from the championship. Using his position as ranking Republican member of the Senate's Antitrust Subcommittee, he's demanding that the system be voided by antitrust law, asking the Department of Justice to investigate.

Representatives in Congress have also introduced three bills in the House that would either void the system or put the BCS under the watchful eye of the FTC.

Is Antitrust Law Applicable?

There are several possible antitrust approaches BCS opponents can take. The first defines the BCS as a cartel and, as Professor Andrew Zimbalist of Smith College writes, "engaging in ongoing exclusionary acts to curtail greater competition...For such a claim to prevail, the plaintiff must prove harm to competition and consumer welfare, not just harm to an individual competitor."

The BCS could also be charged as a monopoly; however, this definition requires that bowl games be defined not just as entertainment, but rather markets for which the BCS is trying to restrict access.

A third possible charge is price-fixing. Each of the five bowl games has the same payout, but some games may have stronger television attraction due to the attractiveness of the teams playing, potentially bringing in more revenue.

Antitrust Hurdles

The biggest legal hurdle BCS accusers face is that antitrust law only applies to restraint of trade, not to non-commercial activity. One would have to convince a judge that BCS eligibility rules affect commercial trade. However, as Curtner et. al. note in their article, "The BCS: Antitrust Goes Bowling," such a decision would be running against numerous court decisions.

And a relevant market needs to be defined. If the national championship and bowl games are a market, aren't they, in fact, more than one market? Different markets could be ticket holders, broadcasters, advertisers, or sponsors. Each market would have to be financially defined.

Finally, Is the BCS Actually Pro-Competitive?

In response to all of the above, the BCS itself has claimed that it is pro-competitive. The bowl series has improved consumer welfare by giving consumers what they were demanding -- a national college champion. No law requires that 100% of all consumers need to be satisfied.

Curtner, et al. The BCS : Antitrust Goes Bowling, May 2009 , PDF Available here.

Kristina Sherry, Senate Panel Holds Hearing on BCS, Los Angeles Times, July 8, 2009.

Andrew Zimbalist, Assessing the Antitrust Case Against the Bowl Championship Series, Smith College,

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