The Play on the Field is Still Under Review: Should Congress Intercept the Bowl Championship Series?

97 Id.

98 BCS, Alliance & Coalition Games Year-by-Year, http://www.bcsfootball.org/bcsfb/timeline (last visited Mar. 14, 2009).

99 Id. No. 6 Utah defeated No. 21 Pittsburgh 35-7 in the 2004 Fiesta Bowl, No. 8 Boise State defeated No. 10 Oklahoma 43-42 in the 2006 Fiesta Bowl, No. 10 Hawaii lost to No. 5 Georgia 41-10 in the 2007 Sugar Bowl, and (as previously mentioned) No. 6 Utah defeated No. 4 Alabama 31-17 in the 2008 Sugar Bowl. See Utah secures perfect season with Sugar Bowl win over Alabama, supra, note 3.

100 Id.

101 Abercrombie, et. al., supra, note 8. Then President-Elect offered this mantra while appearing on 60 Minutes, a popular news and editorial program syndicated by CBS on November 16th, 2008. This wasn’t the first time Obama voiced concern over the Bowl Championship Series format. Speaking on the eve of the Presidential Election, as the Democratic Nominee on Fox Television’s Monday Night Football, Obama offered:

I think it is about time that we had playoffs in college football. You know, I am fed up with these computer rankings, and this and that and the other. Get eight teams. The top eight teams right at the end. You've got a playoff. Decide on a national champion.

Id.

102 On the issue of Fundamental Fairness and the Bowl Championship Series (BCS): Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 108th Cong. (2003), available at: http://judiciary.house.gov/legacy/young090403.htm (statement of Steve Young); William Armsby, BCS is a political football in 2009, CNN, Jan. 8, 2009, http://www.cnn.com/2009/POLITICS/01/08/political.football/.

103 Armsby, supra, note 65.

104 Carroll, supra, note 10, at 1239-40.

105 See Bd. of Trade of City of Chicago v. United States, 246 U.S. 231 (1918).

106 Carroll, surpa, note 10, at 1258.

107 Associated Press, Utah AG: BCS May Violate Antitrust Laws, ESPN U: College Football, Jan. 7th, 2009, http://sports.espn.go.com/ncf/news/story?id=3814472. Shurtleff qualified his statements by noting that “he prefers…BCS officials and university presidents solve the problem…by creating a playoff system, but…he's committed to doing whatever it takes to produce change.” Id.

108 Armsby, supra, note 66.

109 Id.

110 House Bill 7330.

111 Armsby, supra, note 66; BCS Standings – Dec. 7, 2008 [hereinafter “BCS Standings”], http://sports.espn.go.com/ncf/BCSStandings?week=8 (last visited Jan. 20th, 2009). It is no surprise that personal team allegiances and regional home state biases motivate public elected officials to take action. To the extent the home crowd’s fans are fanatics, not doing so could be harmful politically.

112 BCS Standings, supra, note 75.

113 United States Senate, Active Legislation, 111th Congress (2009-2010), http://www.senate.gov/pagelayout/legislative/b_three_sections_with_teasers/active_leg_page.htm (last viewed Jan. 20th, 2009).

114 H.R. 7330.

115 Id. at § 2.

116 Id.

117 U.S. Const. art. 1, § 8, cl. 3; See Gibbons v. Ogden, 9 Wheat. 189-190 (1824) (“This power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.”). Id. at 196; Wickard v. Filburn, 317 U.S. 111 (1942) (Describing the scope of Commerce Clause jurisprudence).

118 National Collegiate Athletic Ass’n v. Miller, 795 F. Supp. 1476, 1480 (D. Nev. 1992).

119 Nev. Rev. Stat. § 398.155 – 398.255 (1991), invalidated by National Collegiate Athletic Ass’n v. Miller, 795 F. Supp. 1476, 1480 (D. Nev. 1992).

120 795 F. Supp. at 1481.

121 Id. at 1482. Historically, the Supreme Court has found that “…even without implementing legislation by Congress [the Commerce Clause] is a limitation upon the power of the States.” Freeman v. Hewitt, 329 U.S. 249, 252 (1946). This so-called “Dormant” Commerce Clause power, works to limit “state interference with interstate commerce.” H.P. Hood & Sons, Inc. v. C. Chester Du Mond, 336 U.S. 525, 535 (1949).

122 795 F. Supp. at 1482.

123 564 F.2d 1136, 1150 (5th Cir. 1977).

124 795 F. Supp. at 1482.

125 Id.

126 H.R. 7330.

127 795 F. Supp. at 1482.

128 Because we’ve identified a viable Constitutional base for Congress’s exercise of its regulatory authority, we can move on with our inquiry. Still, it is worth taking a brief moment to consider a potential alternative means of justification: Section 5 of the Fourteenth Amendment. Section 5 states that “The Congress shall have power to enforce, by appropriate legislation, the provisions of this [amendment].” U.S. Const. amend. XIV, § 5. If the NCAA’s deference to the Bowl Championship Series in FBS college football constitutes “state action,” it is possible that the BCS could be viewed as violating the equal protection clause found in Section 1. This is because the arrangement treats BCS conference members and non-BCS conference members differently; the champion of the former enjoys an automatic bid into a BCS bowl game, while the champion of the later must hope that it lands high enough in the BCS standings to capture an at-large bid.

There is a huge problem with this theory. The NCAA is not a state actor. In Univ. of Nevada v. Tarkanian the United States Supreme Court held that the organization “cannot be deemed to be a state actor on the theory that it misused power it possessed by virtue of state law.” 488 U.S. 179 (1988). The equal protection clause can therefore not be applied to its private organizational decisions. Still, a careful reader will note that Tarkanian was a close decision, handed down by a 5-4 majority. If the court changes its mind in the future, and finds “the NCAA act[s] jointly with [state universities] [when it takes action] and thereby also bec[omes] a state actor,” it is possible that Congress could use its Section 5 authority to justify future remedial legislation. Id. at 199 (White, J., dissenting). For now, however, Congress will have to stick with the Commerce Power.

129 H.R. 7330.

130 Id.

131 Id.

132 See supra, notes 11-14.

133 Crowley, supra note 17, at 111.

134 Although it is true that the courts, and not Congress, have probably played a more dramatic role in reforming the actions of the NCAA, our focus here is limited to legislative involvement. This, of course, is because my thesis considers whether Congress should intercept the Bowl Championship Series. For a history of judicial involvement, and speculation about the role courts might play in the destruction of the BCS see supra note 12. As a result, case law is only mentioned in this section to the extent it inspires legislative activity.

135 42 U.S.C. §2000a (2005).

136 20 U.S.C. § 1681 (2005).

137 See, e.g., Nev. Rev. Stat. § 398.155 – 398.255 (1991), invalidated by National Collegiate Athletic Ass’n v. Miller, 795 F. Supp. 1476, 1480 (D. Nev. 1992). See also 42 U.S.C. § 1983 (2005).

138 As Crowley offers, “Congress has periodically involved itself, through hearings and statutory action, both threatened and actual…Often enough, the threats did not materialize.” See Crowley, supra note 17, at 88.

139 Title VI – Third Circuit Upholds Viability of Standardized Test Scores as a Component of Freshman Athletic Eligibility Requirements. Cureton v. Ncaa, 198 F.3d 107 (3d Cir. 1999), [hereinafter “Title VI Review”] 114 Harv. l. Rev. 947 (2001).

140 Id.

141 Id.

142 Id. 37 F. Supp. 2d. 687 (E.D. Pa. 1999).

143 42 U.S.C. §2000d (2005).

144 Crowley, supra note 17, at 98.

145 Id. at 689.

146 Cureton v. NCAA, 198 F.3d 107, 117 (3d Cir. 1999).

147 Cohen v. Brown Univ., 101 F.3d 155, 167 (1st Cir. 1996).

148 465 U.S. 555 (1984)

149 Title VI Review, supra, note 103, at 949.

150 Id. at 949-50.

151 Id. at 950.

152 Id. at 947-48.

153 See e.g., Kristin Rozum, Comment, Staying Inbounds: Reforming Title IX in Collegiate Athletics, 18 Wis. Women’s L.J. 155 (2003) (Noting “Title IX makes no specific reference to athletics.”)

154 San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973). The Supreme Court applies a heightened form of scrutiny to the laws that affect these classes, recognizing that their interests might not be well represented politically. What is interesting about these cases is that it was Congress – and not the courts – that took remedial action.

155 That being said some commentators have questioned the effectiveness of the Congressional fix:

Even under this new regulatory backdrop, Proposition 16's legal footing may not be as tenuous as the district court's uncontested disparate impact analysis seems to suggest. In future cases, institutions need not attempt to justify standardized test score requirements in terms of increasing student-athlete graduation rates. Instead, institutions should justify the requirements by defining their goal as protecting the academic integrity of institutions beset by a collective action problem that creates financial incentives to admit academically deficient student athletes. This justification finds its root in the NCAA Constitution itself, which characterizes its eligibility requirements as “assur[ing] proper emphasis on educational objectives, [promoting] competitive equity among institutions and [preventing] exploitation of student athletes.

Title VI Review, supra, note 103, at 951.

156 Crowley, supra note 17, at 104.

157 Steve Hargreaves, ‘War on Terror’ may cost 2.4 trillion, CNN Money.com, Oct. 4th, 2007, http://money.cnn.com/2007/10/24/news/economy/cbo_testimony/index.htm.

158 Steven Mufson, Dollar Squeezed From All Sides, The Washington Post, Mar. 14, 2008, at D02.

159 Watson, supra, note 96.

160 See supra, notes 11-14.

161 See BCS, Alliance & Coalition Games Year-by-Year, supra, note 99. In 2000, on Bowl Selection Sunday “three once-beaten teams were vying for a spot against the Sooners in the national championship game, Florida State, Miami and Washington. Miami had beaten Florida State during the regular season, and Washington had beaten Miami.” Florida State won where it counted: in the computers. In 2001, after a flurry of late upsets, “Nebraska edged once-beaten Pac-10 champion Oregon for the No. 2 spot in the final BCS Standings.” In 2003, “LSU, the SEC champion, edged USC for second place in the final BCS Standings to advance to the Sugar Bowl.” After defeating Michigan 28-14 in the Rose Bowl consolation contest, USC was voted the AP National Champion. Ken Peters, USC receives AP national championship trophy, USA Today, Jan. 5th, 2004, http://www.usatoday.com/sports/college/football/pac10/2004-01-05-usc-ap-trophy_x.htm. In 2004, “[t]hree teams won BCS bowl games to complete undefeated seasons.” In 2006 Florida jumped an idle Michigan team with an identical record to play in the inaugural BCS National Championship Game. Finally, in 2008, one loss Oklahoma jumped one loss Texas, a team it had lost to in the regular season, to clinch the right to play for the title in Miami. Despite being the only undefeated team in the FBS, Utah was deferred to the Sugar Bowl.

162 BCS officials to consider plus-one format, http://nbcsports.msnbc.com/id/22543610/ (last visited Mar. 14th, 2009).

163 Id.

164 Id.

165 Id.

166 New deals keep BCS bowl lineup intact, http://sports.espn.go.com/espn/print?id=3971680&type=story (last visited Mar. 14th, 2009).

167 While drafting this Note, I considered recommending an “alternative plus one” approach arguing that rather than isolating the top four teams at the end of the season and seeding them to compete in semifinal and final contests, the BCS should strive to maintain its present selections system, which encompasses historical conference match-ups, and geographical considerations. In order to accommodate the 2006 modifications – and the extra two team spots they produced – the BCS should add a fifth regular BCS bowl – to join the Rose, Sugar, Orange, and Fiesta in a New Years Day or later timeslot.

After all conference champions and at-large bids are secured, the BCS Bowls would be played as normal. At the conclusion of all five games, the BCS would generate a postseason edition of the BCS Standings, using the current balance of subjective and objective inputs, much like the final edition of the rankings we have now. The No. 1 and No. 2 teams in the postseason edition of the BCS Standings would then be invited to compete in the BCS National Championship Game, at a site to be selected by the present “double hosting” rotation.

In order to understand why a rankings-based alternative is misguided, consider the 2008 postseason in light of an amended “plus-one” regime.

At the conclusion of the regular season, No. 10 Ohio State was tabbed to play No. 3 Texas in the Tostitos Fiesta Bowl, No. 6 Utah was selected to play No. 4 Alabama in the Allstate Sugar Bowl, No. 19 Virginia Tech earned the right to play No. 12 Cincinnati in the FedEx Orange Bowl, and No. 8 Penn State was assigned to play No. 5 USC in the Rose Bowl Game.

An amended match-up would modify these selections to incorporate No. 1 Oklahoma and No. 2 Florida. Because as champions of their respective conferences, the Sooners and Gators earned the right to play in their traditional BCS bowl sites (the Fiesta Bowl and Sugar Bowl), the new selections would look as follows: (At Large Selection) versus No. 1 Oklahoma in the Tostitos Fiesta Bowl, (At Large Selection) versus No. 2 Florida in the Allstate Sugar Bowl, No. 19 Virginia Tech versus No. 12 Cincinnati in the FedEx Orange Bowl, No. 8 Penn State versus No. 5 USC in the Rose Bowl Game, and (At Large Selection) versus (At Large Selection) in the new, fifth BCS bowl.

Using the current BCS Selection Procedures, No. 6 Utah automatically qualifies as champion of the Mountain West Conference “ranked in the top 12 of the final BCS Standings.” BCS Selection Procedures, supra, note 9. Despite finishing in the top 12 of the final standings, Champion of the Western Athletic Conference, No. 9 Boise State does not earn an automatic berth because the selection procedures provide that “No more than one such team from Conference USA, the Mid-American Conference, the Mountain West Conference, the Sun Belt Conference, and the Western Athletic Conference shall earn an automatic berth in any year.” Id. Because No. 6 Utah is “the team with the highest finish in the final BCS Standings,” it earns the automatic berth. Id. That being said, Boise State “may be eligible for at-large eligibility.” Id. Additionally, No. 3 Texas automatically qualifies as a team “from a conference with an annual automatic berth for its champion…ranked No. 3 in the final BCS Standings,” as does No. 4 Alabama, as a team “from a conference with an annual automatic berth for its champion…ranked No. 4 in the final BCS Standings.” Id.

This leaves us with one remaining at-large selection, which would be made following the procedures for At-Large Eligibility, namely any FBS team that is “bowl eligible,” “[h]as won at least nine regular-season games, and…[i]s among the top 14 teams in the final BCS Standings.” Id. Since “[n]o more than two teams from a conference may be selected” we cannot choose No. 7 Texas Tech or No. 13 Oklahoma State, as the Big 12 is already represented by Oklahoma and Texas. Id. This leaves us with four teams to choose from: No. 9 Boise State, No. 10 Ohio State, No. 11 TCU, and No. 14 Georgia Tech.

Although logic dictates we should select the team with the highest BCS standing, the Boise State Broncos, we already know that “lack of marketability” can be damning. See Schmit, supra, note 13, at 233-34. Here it is likely that a bowl selections committee would opt for the traditional power with a national following, the Ohio State Buckeyes.

Because, according to the Team Selection Procedures, the “rotation” priority for automatic and at-large selections was Orange, Fiesta, Sugar in 2008, the amended matchups would likely look as follows: No. 3 Texas versus No. 1 Oklahoma in the Tostitos Fiesta Bowl, No. 4 Alabama versus No. 2 Florida in the Allstate Sugar Bowl, No. 19 Virginia Tech versus No. 12 Cincinnati in the FedEx Orange Bowl, No. 8 Penn State versus No. 5 USC in the Rose Bowl Game, and No. 6 Utah versus No. 10 Ohio State in the new, fifth BCS bowl.

This arrangement simply won’t work. Although, it appears to restore Texas to a legitimate position as a national championship contender, it dangerously creates the opportunity for further subjectivity in the national championship process. If either a No. 1 or No. 2 team loses, the system creates a rankings black hole where victors will attempt to convince voters that their wins were “more substantial” than other victors’ wins. Because this is exactly the kind of suspect “off the field,” evaluation that haunts the current BCS, a rankings-based “plus-one” format cannot be the answer.

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