Critics of big-time college football have for years clamored for the federal government to investigate the Bowl Championship Series for possible antitrust violations. Tuesday, the Justice Department offered the first confirmation that it is, indeed, examining college football's system for crowning a national champion, and is considering action against it.
Christine A. Varney, assistant attorney general in the Justice Department’s Antitrust Division, sent a letter to Mark A. Emmert, president of the National Collegiate Athletic Association, asking for his “views and/or plans” concerning the BCS and the possibility of a college football playoff. Varney told Emmert that his answers to her questions “would be relevant in helping us determine the best course of action with regard to the BCS.”
The BCS — a freestanding organization made up of the six "major" FBS conferences — was introduced 12 years ago to determine the champion in the NCAA's Football Bowl Subdivision (formerly Division I-A), following a series of experimental methods to set the participants for a national title game. Of all the sports sponsored by the NCAA, football at this level is the only one not to be determined by an NCAA-sanctioned playoff or tournament.
The BCS has drawn the ire of many critics. Two years ago, Sen. Orrin G. Hatch, Republican from Utah, held a hearing before a Senate Judiciary subcommittee to question the legality of the system. And Mark Shurtleff, Utah's attorney general, said last month that he intended to file an antitrust lawsuit against the BCS. Utah officials have been particularly critical of the BCS; the University of Utah and Brigham Young University have performed exceptionally well in football in recent years, but are at a disadvantage in being selected for the national title game by the BCS because they are not in one of the six "major" conferences. Also last month, a group of 21 economics and law professors wrote a letter asking the Justice Department’s Antitrust Division to investigate the BCS, calling it a cartel that “secures market access and revenue” for its members.
Citing a Monday article in The New York Times in which Emmert said the NCAA was “willing to help create a playoff format to decide a national championship for the top level of college football,” Varney asked Emmert in the letter why a playoff does not already exist, “when so many other NCAA sports have NCAA-run playoffs or championships.” She also asked “what steps, if any,” the NCAA has taken to create a playoff before or during Emmert's tenure. Finally, she asked if he thinks that “there are aspects of the BCS system that do not serve the interests of fans, colleges, universities and players.”
The NCAA offered a muted response to news of the letter Wednesday.
“When we actually receive the letter from the Department of Justice we will respond to its questions directly,” Bob Williams, an NCAA spokesman, said in an e-mail message to Inside Higher Ed. “It should be noted that President Emmert consistently has said, including in the New York Times article, that the NCAA is willing to help create a playoff format for Football Bowl Subdivision football if the FBS membership makes that decision.”
Bill Hancock, BCS executive director, who was copied on the letter to Emmert, was more critical.
“If the Department of Justice has any questions for us, we’ll be happy to answer,” Hancock wrote in an e-mail to Inside Higher Ed. “We’re confident the BCS event complies with the law. Goodness gracious, with all that’s going on in the world right now and with national and state budgets being what they are, it seems like a waste of taxpayers’ money to have the government looking into how college football games are played.”
Michael McCann, a professor at Vermont Law School, has written at length about the possibility of legal challenges to the BCS. In recent weeks, he has laid out his views in the Boston College Law Review and in Sports Illustrated.
“I think this letter is serious in that it’s asking fundamental questions about the BCS and how it comports with federal antitrust law,” McCann said in an interview Wednesday. “The question about why there isn’t a [football] playoff gets at an issue a lot of fans have…. I would say [the Justice Department] is in the fact-finding stage at this point. This [letter] doesn’t mean there will be a case against the BCS, but it certainly sends a message that the Justice Department is interested.”
McCann also said he found it “interesting” that the letter was sent to the NCAA and not the BCS, “because the NCAA likes to emphasize that the BCS is a separate entity.” If a case is brought against the BCS, he noted, it is possible that the NCAA could be named a co-defendant.
“The fact that the letter was sent to President Emmert indicates that the Justice Department believes there’s a connection between the BCS and the NCAA, even if they really are separate entities,” McCann said.
As to whether he thinks there is a legitimate antitrust case to be made against the BCS, McCann is dubious.
“I think it’s a mixed bag as to whether it’s legal or illegal,” McCann said. “It has clear competitive virtues, in that it offers postseason play that hadn’t existed before…. But it also has clear anticompetitive virtues, in that it makes certain teams have a much better chance of playing in the national title game than others…. I don’t know if there’s a legal right to a playoff, either. So, I don’t think it’s a slam-dunk case.”