College Football and Congress

Senate panel (of one) hears debate on whether bowl series for determining NCAA Division I champion is fair and legal.
July 8, 2009

WASHINGTON – There was so much talk of ethics and equality Tuesday at a hearing before a subcommittee of the Senate Judiciary Committee that one could be forgiven for not knowing the conversation was about college football.

In front of a standing-room-only audience – which clearly owed much of its size to the presence of more than a few sports-crazed Congressional interns – a pair of university presidents and antitrust lawyers debated the merits and legality of the Bowl Championship Series, an arrangement among several conferences to determine the football national champion in Division I of the National Collegiate Athletic Association.

Sen. Orrin G. Hatch, Republican from Utah, called the hearing at the behest of the University of Utah, whose football team went undefeated last season and won its bowl game but still was not considered for the national championship due to its membership in the lower-profile Mountain West Conference. The senator has repeatedly said in the past that he believes the BCS violates federal antitrust law because of its “exclusionary” method of selecting teams to play in the “fictitious national title game,” as he called it multiple times at Tuesday's hearing. In a sign, perhaps, of lack of interest among his colleagues, Hatch was the only member of the Subcommittee on Antitrust, Competition Policy and Consumer Rights at the meeting to hear testimony and ask questions of the guests.

The BCS was introduced 10 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 was created and is run by only six of the 11 conferences in the division. As a result, each of the six member conferences receives an automatic bid to one of the five BCS games, one being the national championship, for their conference champion. The other slots are filled by “at large” teams – most of which come from the six BCS-member conferences. Still, sometimes non-BCS conference teams have good enough seasons to be considered for these slots, as was the case with the University of Utah last year. Though it's possible for these teams to get into one of the five BCS games, the bar is usually set too high for those non-BCS conference teams to be considered for the national title game.

Michael K. Young, president of the University of Utah, called the BCS method of selecting teams “fundamentally unfair,” arguing that it favors teams from what he consistently referred to as “privileged conferences.” He and others from non-BCS conferences have pushed for a playoff system, much like the one the Football Championship Subdivision (formerly Division I-AA) hosts annually.

“It is the only sport that effectively eliminates nearly half of its teams from the championship even before their seasons begin,” Young said of college football. “We should decide championships by competition and not by conspiracy.… The BCS changes the old saying, ‘If you can’t beat them, join them’ to this: ‘If you can’t beat them, eliminate them.’ This is a bad message to send our student populations.”

Barry J. Brett, an antitrust lawyer representing the Mountain West Conference, said the Sherman Antitrust Act strictly forbids the creation of “contracts, combinations or conspiracies” to lessen competition. He vehemently believes the BCS violates this statute. More important than the competition on the field, Brett argued that the wealth withheld from non-BCS conferences as a result of the current system does more damage than anything else. For example, each team that participated in BCS games provided its conference with about $18 million in revenue last year. Conferences that do not have participating teams receive no revenue from the BCS.

“This is not simply a sports issue but it involves a significant commercial enterprise controlling hundreds of millions of dollars in annual revenue which is vital to schools,” Brett wrote in his formal testimony to the subcommittee. “All of the programs need these revenues to fund football, but also to help fund the many other men’s and women’s athletics programs that are so much part of the fabric and experience of college life. And this funding comes at a time when universities are strapped for cash needed for these programs and many other educational initiatives. These universities are constrained from asserting these claims.”

On the other side of the issue, Harvey Perlman, chairman of the BCS Presidential Oversight Committee and chancellor of the University of Nebraska at Lincoln, from the BCS-member Big 12 Conference, argued that the current system has proven itself much more effective than the old method of having pollsters select a champion based on hypothetical matchups. He also noted that the BCS meets market demands in a way that a playoff system never could.

“Neither the public that watches the games nor the television networks and bowl organizations that provide the revenues that make any championship structure economically viable will consider any arrangement that does not include teams such as Oklahoma, Texas, Florida, Georgia, Penn State, Miami, Florida State, Norte Dame, West Virginia, USC, Ohio State, Michigan, and my own university, the University of Nebraska, to be viable,” Perlman wrote in his formal testimony to the subcommittee. “If those teams and their conferences cannot be persuaded to participate, there will be no national championship. With all due respect, this is not true of the other conferences.”

All of the debate surrounding the BCS could be made moot (at least temporarily) July 9, when nearly all of the Division I conferences are slated to sign off on a contract extension that grants ESPN the right to broadcast the BCS games through 2014. Only the Mountain West Conference has yet to sign the deal. It wants its proposal to create an eight-team playoff formally reviewed by the other conferences. Perlman, however, said at the hearing he expected the deal to go ahead without consideration of the counter proposal. Still, he was open to the idea of reviewing it for the next renewal in 2014.

At hearing's end, Hatch said his mind had not been changed by the testimony. Rather, he argued that he was more convinced than ever that the BCS was problematic for college football, its players and fans.

“There’s an arrogance about the BCS that just drives me nuts,” Hatch said to reporters after the hearing. “That comes with power. They’ve got the power, and they’re exercising it in ways that are violating antitrust law.… Hopefully this hearing will lead some to reconsider their positions. If nothing else, I think the Justice Department should be investigating.”

Asked whether there were more pressing issues for the Congress to deal with on Capitol Hill, Hatch defended his crusade against the BCS.

“Almost everyone in our society is very interested in college football and sports,” he said of the relevance of the day’s hearing. “This is not good for our students to see this kind of injustice occurring.”


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