The Play on the Field is Still Under Review: Should Congress Intercept the Bowl Championship Series?
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Still, could an anticompetitive practice that lacks legal standing, and fails to justify extraordinary intervention warrant private modification? If so, what institutional pressures exist to convince “invincible” private parties that change is necessary?
To reduce the margin of error, BCS officials have considered implementing a “plus-one” format.162 As originally proposed the “plus-one” modification would create a miniature playoff by “seeding the top four teams after the regular season and playing No. 1 vs. No. 4 and No. 2 vs. No. 3 in bowl games, essentially creating two national semifinals.”163 The winners would then compete a week later for the national championship.164 When the idea was introduced in early 2008, it met immediate resistance from the commissioners of the Big Ten and Pac-10 Conferences, who feared a modification might “make the Rose Bowl less attractive.”165 Ultimately, the “plus-one” proposal was rejected, when the BCS agreements were extended “intact” through 2014.166
I believe the commissioner’s rejection of the “plus-one” proposal was a mistake, and recommend reconsideration of the “plus one” format for adoption beginning with the 2015 season.167 The adoption of an amended “plus-one” format will resurrect integrity and standards of fair play, decrease multiple claimants to the national title, and, in doing so, bolster satisfaction in the legitimacy of the sport. Most importantly, it has a good chance of eventually being accepted by the BCS polity. Although a playoff of any kind will have the incidental effect of removing some significance from any first round BCS game, the idea is hardly different than the standing “double hosting” arrangement in which BCS sites sponsor their namesake bowls, and then the BCS National Championship Game several days later. Presently, the competitors in the Rose Bowl have no chance to play for a national championship. Win or lose in Pasadena, they are on the next flight home. Imagine, then, the increased competitive excitement of playing in the Rose Bowl and knowing that a win affords the chance to play for the BCS National Championship. Might this “sudden death” proposition entice fan participation and television exposure? Rather than walking away from the season a “bowl” champion, a “plus-one” format gives more teams the chance to be national champions. It also shifts the statistical margin of error (in the BCS Standings) from between numbers 2 and 3, to numbers 4 and 5. This, of course, decreases a team’s ability to protest that it should have been included in the semifinal pool. There are several public forces that ultimately can, and will motivate private action. First, from an organizational standpoint: implementation of a playoff by private contract will maintain integrity and standards of fair play, by giving more teams the opportunity to compete for a national championship. Second, it will decrease multiple claimants to the national title. Of the seventy percent of seasons in which the BCS is forced to choose between three or more teams for two title slots, a “one-plus” playoff will help mitigate the resounding controversy. The public effect of these two advances is to bolster satisfaction in the legitimacy of the sport. Because consumer satisfaction directly correlates with ratings, licensing, and advertising – muscular gains in fan enthusiasm is almost certain to lead to greater attendance and profits in the long run.
The NCAA’s organizational mission: to promote intercollegiate athletics, administer national championships, and maintain integrity and standards of fair play, is severely compromised by FBS College Football’s Bowl Championship Series. Still, although Congress has the power to mandate change, it will not, and should not get involved. A history of legislative conflict with NCAA affairs shows that Congress is most likely to act when correcting perceived inequalities in sex and race contexts – never to address a purely competitive imbalance. Still, change is necessary, even if unmotivated by legal or legislative limitations. The only way the NCAA can fulfill its joint mission of determining a national champion is by implementing a playoff in the Football Bowl Subdivision. This playoff should take the shape of a modest, “one-plus” regime. Implementation of a playoff by private contract will maintain integrity and standards of fair play, decrease multiple claims to the national title, and bolster public satisfaction in the legitimacy of the sport. The above steps will eliminate the need for legal or legislative involvement, allowing players, coaches, and fans to get back to the game itself. Candidate for Juris Doctor, The Ohio State University Moritz College of Law, 2010; B. Phil., Miami University, 2006. 1 Tim May, Still against a playoff, but not averse to change, The Columbus Dispatch.com, Dec. 7th, 2008, http://www.columbusdispatch.com/live/content/sports/stories/2008/12/07/osu_gee07.ART_ART_12-07-08_C3_HNC58B0.html?sid=101. 2 NCAA Members By Division, http://web1.ncaa.org/onlineDir/exec/divisionListing (last visited Jan. 9, 2009). 3 Utah secures perfect season with Sugar Bowl win over Alabama, http://sports.espn.go.com/ncf/recap?gameId=290020333 (last visited Mar. 14, 2009); College Football BCS Standings, http://sports.espn.go.com/ncf/BCSStandings?week=3 (last visited Jan. 9, 2009). 4 Associated Press, Florida Rides Tebow, suffocating defense to another BCS title, Espn U College Football, Jan. 9, 2009, http://sports.espn.go.com/ncf/recap?gameId=290080201. 5 BCS Bowl Facts, http://www.bcsfootball.org/bcsfb/facts (last visited Jan. 9, 2009) (Listing the projected payouts for all five BCS bowl games). 6 Brock Vergakis, BCS may violate antirtust laws, Associated Press, January 6, 2009, http://www.google.com/hostednews/ap/article/ALeqM5gp2qJ8EOiGM0uFK70xIikU9wBsagD95HTAO80. 7 2009 International Bowl, Quick Facts, http://www.internationalbowl.org/about.html#qf (last visited Jan. 9, 2009); R&L Carriers New Orleans Bowl, Per Team Distribution, http://www.neworleansbowl.com/nob/index.php?option=com_content&task=view&id=30&Itemid=47 (last visited Jan. 9, 2009); See also Thomas O’Toole, $17M BCS payouts sound great, but…, USA Today, Dec. 6, 2006, http://www.usatoday.com/sports/college/football/2006-12-06-bowl-payouts_x.htm (providing a payoff breakdown of all FBS bowl games). 8 Neil Abercrombie, Mike Simpson, & Jim Matheson, Joint letter to Obama on college football playoff comments, USA Today, Nov. 20, 2008, http://www.usatoday.com/sports/college/football/2008-11-20-obama-letter_N.htm. 9 BCS Selection Procedures, http://www.bcsfootball.org/bcsfb/eligibility (last visited Mar. 14, 2009). 10 15 U.S.C. §§ 1-7 (2006). 11 Todd M. Carroll, No Penalty On The Play: Why The Bowl Championship Series Stays In-Bounds of the Sherman Act, 61 Wash. & Lee L. Rev. 1235, 1286 (2004); See also Timothy Kober, Too Many Men on the Field: Why Congress Should Punt on the Antitrust Debate Overshadowing Collegiate Football and the Bowl Championship Series, 15 Seton Hall J. Sports & Ent. L. 57, 82 (2005) (Observing that the BCS provides procompetitive benefits that should insulate it from an antitrust challenge); Brett P. Fenasci, An Antitrust Analysis of College Football’s Bowl Championship Series, 50 Loy. L. Rev. 967, 996 (2004) (Maintaining under the “rule of reason” analysis that the BCS does not violate antitrust law); Jodi M. Warmbrod, Antitrust in Amateur Athletics: Why Non-BCS Universities Should Punt Rather Than Go for an Antitrust Challenge to the Bowl Championship Series, 55 Okla L. Rev. 333, 371 (2004) (Arguing that a potential BCS antitrust claim would confuse athletic and economic competition). 12 C. Paul Rogers III, The Quest for Number One in College Football: The Revised Bowl Championship Series, Antitrust, and the Winner Take All Syndrome, 18 Marq. Sports L.J. 285, 307 (2008). 13 Katherine McClelland, Should College Football’s Currency Read “In BCS We Trust” or Is It Just Monopoly Money?: Antitrust Implications of the Bowl Championship Series, 37 Tex. Tech L. Rev. 167, 213 (2004); See also K. Todd Wallace, Elite Domination of College Football: An Analysis of the Antitrust Implications of the Bowl Alliance, 6 Sports Law. J. 57, 82 (1999) (The benefit of a national championship game is insufficient “to justify an arrangement which reduces the output and product of college football.”); Jasen R. Corns, Pigskin Paydirt: The Thriving of College Football’s Bowl Championship Series in the Face of Antitrust Law, 39 Tulsa L. Rev. 167, 206 (2003) (“[A] jury may be persuaded to decide that the anti-competitive effects of the BCS are greater than the pro-competitive effects, and thus rule that the agreement violates antitrust law.”). 14 Jude D. Schmit, A Fresh Set of Downs? Why Recent Modifications to the Bowl Championship Series Still Draw a Flag Under the Sherman Act, 14 Sports Law J. 219, 221 (2007). 15 H.R. 7330, 110th Cong. (2008). 16 Nat'l Collegiate Athletic Ass'n, NCAA Football 2008 Rules and Interpretations (2008), http://www.ncaapublications.com/Uploads/PDF/Football_Rulesadc982b5-03fb-4e27-828c-c2d26b95e6c1.pdf. See also Dennis Dodd, Instant replay finally lands in college football, CBS Sports College Football, Aug. 4, 2004, http://www.sportsline.com/collegefootball/story/7550960 (The system was introduced on an experimental basis in the Big 10 Conference in 2004 before being widely adopted across the Football Bowl Subdivision landscape). 17 Hannah v. Larche, 363 U.S. 420, 442 (1960). 18 Joseph N. Crowley, In The Arena: The NCAA’s First Century 5 (2006). 19 John Sayle Watterson, College Football: History, Spectacle, Controversy 401 (2002). 20 Crowley, supra note 17. 21 The History of the NCAA, http://www.ncaa.org/wps/ncaa?ContentID=1354 (last visited Jan. 11, 2009). 22 Id. 23 Id. 24 Id. 25 National Collegiate Athletic Association: Our Mission, http://www.ncaa.org/wps/ncaa?ContentID=1352 (last visited Jan. 11, 2009). 26 Need cite. 27 NCAA Members by Division, supra note 1. 28 The Harris Poll, http://www.harrisinteractive.com/harris_poll/index.asp?PID=622 (last visited Jan. 15, 2009). 29 Aaron Steinberg, Mr. Brand Goes to Washington: Does the NCAA deserve non-profit status? ReasonOnline, Jan. 4, 2007, http://www.reason.com/news/show/117618.html. 30 564 F.2d 1136 (5th Cir. 1977). 31 Id. at 1141. 32 Id. 33 Id. 34 Id. at 1148 n.23. 35 Hennessey, 564 F.2d at 1148. 36 Id. at 1149 n.14. In holding as it did the Fifth Circuit relied on the United State Supreme Court’s statement in Goldfarb v. Virginia that “Congress intended to strike as broadly as it could in [enacting] the Sherman Act.” 421 U.S. 773, 787 (1975). 37 NCAA 2006-07 Budgeted Revenue and Expenses, http://www1.ncaa.org/finance/pie_charts (last visited Jan. 15, 2009). 38 Steinberg, supra note 27. Also immune from taxation is the $6 billion the organization has accumulated from CBS for broadcasting rights to its annual “March Madness” Basketball Tournament. 39 See Peter Kreher, Antitrust Theory, College Sports, and Interleague Rulemaking: A New Critique of the NCAA’s Amateurism Rules, 6 Va. Sports & Ent. L.J. 51 (2006); See also Amy Christian McCormick, The Emperors New Clothes: Lifting the NCAA’s Veil of Amateurism, 45 San Diego L. Rev. 495 (2008) (Arguing that the NCAA’s product is neither amateur nor non-commercial). 40 Schmit, supra note 13, at 236. See also NCAA v. Bd. of Regents of the Univ. of Okla., 468 U.S. 85 (1984) (Holding an NCAA-negotiated television contract was a clear violation of antitrust law); Law v. NCAA, 134 F.3d 1010 (10th Cir. 1998) (Finding procompetitive justifications for NCAA-imposed salary restrictions were outweighed by anticompetitive effects). 41 Id. 42 Stewart Mandel, Bowls, Polls, & Tattered Souls: Tackling the Chaos and Controversy that Reign Over College Football 1 (2007). 43 Sal Paolantonio, How Football Explains America 1-15 (2008). 44 Carroll, supra note 10, at 1242. 45 The History of the NCAA, supra note 18. See also What’s the difference between Divisions I, II, and III?, http://www.ncaa.org/wps/ncaa?ContentID=418 (last visited Jan. 16, 2009) [hereinafter What’s the difference?] (Division I member institutions must sponsor a minimum of seven sports for men and seven for women or “six for men and eight for women…with two team sports for each gender,” as well as “contest and participant minimums for each sport.”). 46 Id. 47 What’s the difference?, supra note 43. 48 NCAA Members by Division, supra note 2. 49 Carroll, supra note 10, at 1243. 50 NCAA Championship Handbooks, http://www.ncaa.org/wps/ncaa?ContentID=36602 (last visited Jan. 17, 2009). 51 Nat'l Collegiate Athletic Ass'n, NCAA Football 2008 Division II Football Championship Handbook 11-13 (2008), http://web1.ncaa.org/web_files/champ_handbooks/football/2008/2_football_handbook.pdf. The selection criterion for participants involves: 1. Win/loss record, 2. Strength of Schedule, 3. Availability of athletes for NCAA Championships, and 4. Nullification. 52 Wallace, supra note 12, at 60. 53 Id. “Since then, the [Rose Bowl] has showcased 18 Heisman Trophy winners, produced 20 national champions, [and] featured 197 consensus All-Americans.” It’s no surprise that the contest – currently in its 96th incarnation – is known as the “Granddaddy of Them All.” Pasadena Tournament of Roses, http://www.tournamentofroses.com/rosebowlgame/ (last visited Jan. 19, 2009). 54 Id. 55 Childs Walker & Candus Thompson, Are there too many college football bowl games?, BaltimoreSun.com, Dec. 30, 2008, http://www.baltimoresun.com/sports/college/football/bal-faceoff1230,0,498110.column. 56 Football Bowl Ass'n, http://www.footballbowlassociation.com/faq.html (last visited Jan. 19, 2009). 57 Carroll, supra note 10, at 1248-49; See also BCS Background, http://www.bcsfootball.org/bcsfb/about (last visited Jan. 19, 2009) (“Reflecting the importance of traditional regional considerations” the BCS Rose Bowl will continue to host the champions of the Big 10 and the Pac 10 Conferences.). 58 BCS Background, http://www.bcsfootball.org/bcsfb/about (last visited Jan. 19, 2009). 59 Carroll, supra note 10, at 1244-45. 60 Id. 61 To tackle the difficult – if not impossible – task of ranking independent items, like bowl performances, voters rely on truth functional conditionals, which provide the seemingly logical underpinnings for the rational assumptions we make. As Evans and Ower describe, “The truth value, i.e. the truth or falsity, of the material conditional is fully determined by, and is indeed a strict mathematical function of, the truth or falsity of its component propositions.” Jonathan St. B.T. Evans & David E. Over, If Oxford Cognitive Science Series: Supposition, Pragmatics, and Dual Processes 12 (2004). For example, every fifth-grader knows that if A is greater than B and B is greater than C, A must be greater than C. Pollsters follow this same logic when they rationalize the strength of a given team in comparison to outstanding competition. The problem is that on paper intuition doesn't perfectly translate to a live arena like competitive sports where any team can win on “any given Saturday.” 62 Id. at 1249. 63 Wallace, supra note 12, at 60 n. 17. 64 1997 National Champions, http://www.huskers.com/ViewArticle.dbml?SPSID=8&SPID=22&DB_OEM_ID=100&ATCLID=2966 (last visited Jan. 19, 2009). 65 Id. 66 Kober, supra, note 10, at 60. 67 Id. 68 Id. 69 Id. 70 Id. 71 Carroll, supra, note 10, at 1253. 72 Id. 73 Bowl Championship Series – About the BCS, http://espn.go.com/abcsports/bcs/about/ (last visited Mar. 9, 2009). 75 Id. 76 Id. See also Carroll, supra, note 10, at 1256 (Confirming that “[T]he BCS has distributed nearly ninety-five percent of the revenue it has created among the six BCS-member conferences.”); See also Schmit, supra, note 13, at 232 (Reporting total projected payouts at $96,160,00 for 2006 BCS games, “Conference USA, Mid-American, Mountain West, Sun Belt, and Western Athletic Conferences were entitled to a mere $5,160,000 of that amount for their participation in the arrangement.”). 77 Id. 78 Id. at 1254. 79 Welcome to the BCS, http://www.bcsfootball.org/bcsfb/facts (last visited Mar. 4, 2009). Curiously, this official preamble, listed on Fox Sports’s official Bowl Championship Series website, fails to acknowledge historical bowl contests that took place in 1894 and 1902 that, in fact, would make the bowl system over a century old, see supra Part I, B, 1. 80 Carroll, supra, note 10, at 1254. 81 At inception these media polls included Jeff Sagarin-USA Today, Dr. Peter Wolfe, Richard Billingsley, Colley Matrix, Kenneth Massey, Anderson and Hester, and The New York Times. Carroll, supra, note 10, at 1254 n. 110. 82 Carroll, supra, note 10, at 1255. As Carroll describes, “This value is derived from the winning percentages of both the instant team's opponents and its opponents' opponents.” 83 Id. The BCS defines a “quality win” as a victory over a team ranked in the Top 10 in the BCS Standings. 84 Id. at 1256. 85 Id. at 1256. 86 Id. As Carroll describes, at-large selections were determined by the following criteria, “Teams from non-BCS conferences…automatically qualif[ied] for a BCS bowl game if they finish[ed] ranked in the top six in the BCS standings. The BCS bowls c[ould] also select any team that won nine games and [wa]s ranked among the top twelve…” Id. 87 Schmit, supra, note 13, at 232-233. 88 Id. 89 Id. 90 Id. at 233-34. 91 Id. at 234. 92 Schmit, supra, note 13, at 234. 93 Id. at 235. 94 Id. 95 Id. Additionally under the new format Notre Dame, a historical independent, is guaranteed an at-large spot if it is ranked eighth or better in the final BCS standings. 96 Id. Currently, the FBS conferences are in the midst of an evaluation period that began at the start of the 2008 season and will conclude in 2011. “According to BCS rules, the four-year evaluation is based on the ranking of the highest-ranked team in the final BCS standings each year, the final regular-season rankings of all conference teams in the computer rankings used by the BCS each year and the number of teams in the top 25 of the final BCS standings each year.” Graham Watson, Schools not expecting change, ESPN.com, Feb. 23, 2009, http://sports.espn.go.com/ncf/news/story?id=3928879. 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