Antitrust, Governance, and Postseason College Football
Antitrust, Governance, and Postseason College Football
Michael A. McCann 0 1
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This Article examines the compatibility of the Bowl Championship
Series (BCS) with federal antitrust law and the appropriateness of the
federal government using its formal and informal powers to encourage
a new format for postseason college football.
Since 1998, the BCS has served as a self-described “five-game
showcase of college football . . . designed to ensure that the two top-rated
teams in the country meet in the national championship game, and to
create exciting and competitive matchups among eight other highly
re* © 2011, Michael A. McCann, Professor of Law and Director of Sports Law Institute,
Vermont Law School; Legal Analyst and SI.com Columnist, Sports Illustrated; Co-founder,
Project on Law and Mind Sciences at Harvard Law School; Distinguished Visiting Hall of
Fame Professor of Law, Mississippi College School of Law. I thank Adam Zebryk, Jason
Chung, Britney Turner, Nicholas Marlin, and Patrick Malloy for their excellent research
and writing assistance. I also thank Alfred Yen, David Olson, Joseph Liu, Heather Stocks
Pixley, Christopher Lund, Michael Sopko, and Jon Wertheim for their helpful suggestions
and comments, and Samuel Feldman, Benjamin Greenberg, Michaela Sewall, and the
Boston College Law Review staff for their excellent work editing the Article. The views
presented in this Article are my own.
garded teams in four other bowl games.”1 The teams that comprise this
“showcase” are from colleges and universities in the National Collegiate
Athletic Association (NCAA) Division I Football Bowl Subdivision (FBS),
specifically the champions of six BCS-affiliated football conferences, and
four other teams; the four other teams are from BCS-affiliated
conferences, a pool of five non-BCS-affiliated football conferences, and the
University of Notre Dame, which is not a member of any conference.2
Of the ten selected teams, the top two compete in the BCS National
Championship Game, while the other eight play in one of four bowl
games: the Fiesta Bowl, the Orange Bowl, the Rose Bowl, and the Sugar
Bowl. Although there are over thirty other bowl games every year, the
four BCS-sponsored bowls are undoubtedly the most popular and
Particularly given both the absence of other national championship
games (or playoffs) for Division 1 football teams and the contractual
obligation of coaches participating in the ranking of teams (i.e., the USA
Today Coaches Poll) to recognize the winner of the BCS national
championship game as its automatic national champion,4 the winner of the
BCS national championship game is usually regarded by fans and media
as “the national champion.”5 This conferral is routinely made even
1 BCS Background, BCS, http://www.bcsfootball.org/news/story?id=4809699 (last
updated Sept. 22, 2010). Although the BCS was created in 1998, bowl games between college
football teams have been played since 1916. See M. Todd Carroll, Note, No Penalty on the
Play: Why the Bowl Championship Series Stays In-Bounds of the Sherman Act, 61 Wash. & Lee L.
Rev. 1235, 1245 (2004). Since that time, the number of bowl games has increased due to
their popularity. Id. at 1245–46.
2 See Carroll, supra note 1, at 1253–57. The six conferences that have received automatic
bids through the 2013 college football season are the Big East, Big Ten, ACC, Big 12, SEC,
and PAC-10. The Business of Bowl Games: It’s All About Money, Business Pundit ( Jan. 7, 2009),
[hereinafter The Business of Bowl Games]. Football teams from two colleges and universities in five
other conferences—Mountain West, Western Athletic, Conference USA, Mid-American, and
Sun Belt—may receive bids. Id.
3 See The Business of Bowl Games, supra note 2. The most recent iterations of these bowl
games were titled: the Tostitos BCS National Championship Game, the Tostitos Fiesta Bowl,
the Discover Orange Bowl, the Rose Bowl presented by Vizio, and the Allstate Sugar Bowl.
BCS Concludes Selections with Pairings, BCS (Dec. 5, 2010), http://www.bcsfootball.org/news/
4 Dave Sittler, Bob Boycotts Coaches’ Poll, Tulsa World, Aug. 6, 2008, at B1 (“The [USA
Today] coaches’ poll has an agreement with the BCS that the winner of the BCS title game
is its automatic champion.”).
5 See Stan Caldwell, Could Playoff System Work for Division 1?, Hattiesburg Am., Dec. 10,
2009, available at 2009 WLNR 26373419; see also Press Release, Orrin G. Hatch, U.S. Sen.
for Utah, Hatch, Kohl Announce Antitrust Subcommittee Agenda for the 111th Congress
(Mar. 25, 2009), available at http://hatch.senate.gov/public/index.cfm?FuseAction=Press
Releases.List (follow “view by month or year” hyperlink; then search “March 2009”; then
though other college teams could, in theory, host their own national
championship game or concoct their own playoff system and, if
provided with the opportunity, perhaps defeat the “national champion.”6
In furtherance of its scheduling objectives, the BCS employs a
sophisticated or, as some have charged, confounding,7 methodology of
ranking teams. Each team’s BCS ranking is a composite of three equally
weighted components—the USA Today Coaches Poll, the Harris
Interactive College Football Poll, and an average of six computer-based
rankings, created and operated by private sports statisticians who
employ proprietary formulas.8 Proponents of this complex system insist
that it ensures the best teams match up in the college football
postseason.9 Their claim enjoys historical support—at least support from the
history as penned by the BCS: in the fifty-six years before the BCS
formed in 1998, the teams ranked number one and number two by the
Associated Press only played each other eight times in the postseason;
in the twelve years since, the teams ranked number one and number
two by the BCS have played each other every time in the postseason.10
BCS enthusiasts also maintain the system amplifies the value of
regular season games: to earn a shot at a BCS-sponsored national title, a
college football team normally has to win each and every week of the
follow hyperlink bearing press release name) (highlighting the BCS’s self-characterization
of the winner of BCS Championship Game as the “National Champion”).
6 See Jodi M. Warmbrod, Comment, Antitrust in Amateur Athletics: Fourth and Long; Why
Non-BCS Universities Should Punt Rather Than Go for an Antitrust Challenge to the Bowl
Championship Series, 57 Okla. L. Rev. 333, 373 (2004) (noting the lack of an exclusive right to a
“national championship” for the BCS).
7 See, e.g., 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.
Rev. 285, 291 (2008); Parker Allred, Note, From the BCS to the BS: Why “Championship” Must
Be Removed from the Bowl Championship Series, 2010 Utah L. Rev. 183, 185 (“This
methodology—arduous to understand at best . . . .”).
8 See Mark Alesia, Calculating the BCS, Indianapolis Star, Nov. 8, 2002, at D3
(discussing the difficulty in obtaining information on the methodologies of the computer
rankings); Dan Hinxman, WAC Football Notebook: Vandals Within One Win of Bowl Eligibility,
RenoGazette J., Oct. 13, 2009 (noting the basic structure of the computation of rankings);
Jerry P. Palm, What Do You Know About the Different Computer Rankings?, CollegeBCS.com,
http://www.collegebcs.com/bcsfaq.html#Puter (last visited Feb. 20, 2011) (discussing the
proprietary nature of the computer rankings).
9 See Rich Thomaselli, If You’re Wondering What Not to Do When It Comes to Social Media,
Learn from BCS, Advertising Age, Nov. 30, 2009, at 3, 22 (discussing proponents of the
10 See Chris Dufresne, Not Everyone Is Hoping to Make Playoffs: BCS Is Making Its Case to
Maintain Status Quo, Chi. Trib., Jan. 5, 2010, at C8.
regular season, be it against top opponents or weak opponents.11 In
other words, every regular season game counts, a phenomenon that has
been credited with increasing attendance, interest, and financial
investment in those games.12 A playoff system, in contrast, could enable
an underperforming regular season team to wait until the playoffs to
put forth their best effort and performance.13
Although the ostensible purpose, if not the selection methodology,
of the BCS is clear, the BCS itself evades traditional conceptions. To wit,
although it is managed by an executive director, Bill Hancock,
promoted by public relations expert and former White House press
secretary Ari Fleischer, organized by the commissioners of the eleven NCAA
FBS conferences and the director of athletics at the University of Notre
Dame, and features an interactive website, http://www.bcsfootball.org,
the BCS does not “exist” in a corporate or temporal sense. The BCS
does not have a physical office and does not file corporate or legal
documents in any jurisdiction.14 According to the BCS, there really is no it
to “it.”15 Indeed, from the vantage point of this supposed non-entity, the
BCS is merely a preferred mechanism for scheduling college football
The BCS is not a corporation or other entity formalized by filing in any
jurisdiction. It is not a party to the proposed ESPN television agreement . . . . The
ESPN agreement states that the BCS is not a joint venture (i.e. “ESPN
recognizes that there is no Bowl Championship Series entity or BCS entity”).
The BCS’s innocuous-seeming self-characterization appears to be
belied by the intense controversy it evokes. Critics of the BCS include
U.S. President Barack Obama17 as well as myriad constituencies of
influence and power. Members of Congress, most notably U.S. Senator
Orin Hatch18 (R-UT) and U.S. Representative Neil Abercrombie19
(DHI), a nonpartisan political action committee, Playoff PAC,20 and
legions of disenchanted fans and media are fiercely opposed to the
BCS.21 Their core criticism, generally speaking, is that the BCS
selection process simply does not ensure that the “best” college football team
competes for a national title, and that a playoff system, such as that
used in college basketball, should be required for determination of a
national champion.22 A related gripe is that the BCS unfairly minimizes
opportunities for teams from non-BCS-affiliated conferences to
compete for a national title.23 These concerns underscore the labyrinthine
and arguably inequitable process in which only two teams from
nonBCS-affiliated conferences are invited to compete in a BCS-affiliated
bowl game and in which one, albeit very marketable, school—the
University of Notre Dame—is accorded preferential treatment when
compared to other non-BCS-affiliated colleges and universities.24
These and related objections carry economic importance.
Consider that in 2010, the BCS distributed nearly $143 million in revenue
from its five bowl games, with 81% of it going to the six BCS-affiliated
conferences, which in turn distributed the revenue to member colleges
and universities.25 Typically, in fact, the affiliated conferences receive
an even higher share of revenue; from 2005 to 2009, affiliated
conferences received $492 million, or 87% of the revenue pool, while other
conferences, whose membership consists of nearly half of Division 1
football schools, received just $62 million (13%).26 Unsurprisingly, the
teams selected to participate in BCS bowl games are the BCS’s most
fortunate beneficiaries: they each receive, on average, an $18 million
payout.27 Keep in mind the context of these payouts. Colleges and
universities frequently use them to finance their other sports teams—
which are generally unprofitable and which usually rely on the
proceeds generated by the football and men’s basketball teams28—and to
furnish student-athlete scholarships.29
The benefits of participation in BCS bowl games extend far
beyond direct financial receipts. Such participation normally generates
considerable attention for the chosen schools and, not surprisingly, is
often associated with increased fundraising opportunities and
improved quality of applicants.30 Access to the resources and exposure of
BCS-sponsored bowls can be viewed with even greater importance in
the midst of this recessionary era, as many colleges and universities are
struggling financially, particularly in regards to reduced endowments
and middling capital campaigns.31
Opposition to the BCS may also compel legal and legislative
rebuke, an outcome of particular interest to government actors that
make and enforce the law and to those universities and colleges denied
equal access to postseason bowl games. Specifically, the alleged
anticompetitiveness of the BCS has invited discussion as to whether the
BCS violates sections 1 and 2 of the Sherman Act, a leading source of
federal antitrust law.32 As explained in greater detail below, section 1
prohibits collusive activity among competitors while section 2 prohibits
monopolistic behavior by one entity; both sections are arguably
applicable to the amorphous BCS and its member schools.33 The essential
charge is as follows: the BCS and its member conferences act as a cartel
to prevent other conferences from competing for a national title and
other bowl games, and the riches that go along with them.
Unfortunately for the BCS, allegations of it behaving in a cartel-like
and antitrust-violative manner are not merely for academic scrutiny.
Such allegations have drawn the contemplation of law enforcement
authorities and legislators, who pose a legitimate threat to the BCS’s very
existence. Most notably, the U.S. Department of Justice has signaled
interest in examining the legality of the BCS, though the agency has not
commenced a formal investigation.34
In addition, Utah Attorney General Mark Shurtleff—who, like
many Utahans, was disappointed that the undefeated University of Utah
Utes were denied an opportunity to compete for a national title in 2009
because they played in the Mountain West Conference, a
non-BCSaffiliated conference—has more critically associated the BCS with
anti31 See Eliza Krigman, Schools of Hard Knocks, Nat’l J. (D.C.), Jan.
financial challenges for colleges and universities in the recession).
32 15 U.S.C. §§ 1–2 (2006); see Michael P. Kenny & William H. Jordan, United States v.
Microsoft: Into the Antitrust Regulatory Vacuum Missteps the Department of Justice, 47 Emory L.J.
1351, 1361 (1998) (describing the Sherman Act as the “primary federal antitrust statute”).
Other leading federal antitrust statutes include: the Clayton Act, 15 U.S.C. §§ 12–14, 19–
22, 27 (2006); the Robinson-Patman Act, 15 U.S.C. §§ 13–13(b), 21(a) (2006); and the
Federal Trade Commission Act, 15 U.S.C. §§ 41–58 (2006). See generally Nathaniel Grow,
Antitrust & The Bowl Championship Series, 2 Harv. J. Sports & Ent. L. 53 (2011) (analyzing
potential antitrust liability for the BCS); Janet L. McDavid, Antitrust Issues in Health Care
Reform, 43 DePaul L. Rev. 1045, 1049 & n.30 (1994) (discussing the role of antitrust
enforcement in health care).
33 See infra notes 43–145 and accompanying text.
34 See Brent Schrotenboer, Can MWC ‘Trust’ in the BCS System?: Criteria Sharpen the
Fairness Issue, San Diego Union-Trib., May 8, 2010, at D1; Dick Weiss, Boise Out to Crash BCS
Again, Daily News (N.Y.), Sept. 7, 2010, at 59 (noting advocacy by law firms in
Washington D.C. to encourage the Justice Department to open a formal investigation).
trust violations.35 Indeed, Shurtleff has repeatedly warned that his office
is investigating the compatibility of the BCS with antitrust law, though a
lawsuit had neither been filed nor specifically threatened.36 The
absence of a filed lawsuit may be predictable; despite the many
controversies generated by the BCS, its legality has never been challenged in
Perhaps of greatest concern to the BCS are the members of
Congress who, by filing a bevy of bills openly hostile to the BCS, signal their
own skepticism of the BCS’s legality. Although none of their bills—one
of which expressly characterizes the BCS as an illegal restraint of trade
under federal antitrust law and compels the creation of a college
football playoff system38—are poised to become law, the bills reaffirm the
presence of BCS critics in Congress and, just as important, the
willingness of those critics to expend time and resources on the BCS.39
This Article begins in Part I by examining the legality of the BCS
under federal antitrust law.40 Part II then discusses the appropriateness
of government actors concerning themselves with, and expending
taxpayer dollars on, the scheduling of college football games.41 The
Article concludes in Part III by offering possible changes to the scheduling
structure of postseason college football.42
I. The Legality of the BCS
The legal argument against the BCS primarily invokes the
Sherman Act, which became law in 1890 and, broadly conceived, is designed
to safeguard democratic institutions from undue consolidations of
economic power.43 As interpreted by courts, the Sherman Act’s primary
purpose is the protection of consumers.44 There is longstanding
debate, however, over the appropriate meaning of “consumer protection”
in the context of the Sherman Act.45 To some, it constitutes
maximization of economic efficiency; to others, additional goals that sound in
distributive justice, such as the fairness of wealth concentration and
means of wealth allocation, should also be considered.46 As detailed
below, conceptual tensions over the Sherman Act’s underlying meaning
impact how a court may scrutinize the BCS.
The Sherman Act contains seven sections, the first two of which are
the most relevant to potential claims against the BCS. Section 1 is
arguably the leading source federal antitrust law, particularly in sports
litigation, and is the most relevant source of law for determining the
legality of the BCS.47 Section 1 is regarded as governing “any coordinated
behavior” by market actors, meaning it enjoys a broad scope over
economic activity in the United States.48 Section 1 claims are designed to
It is sometimes said of these combinations that they reduce prices to the
consumer by better methods of production, but all experience shows that this
saving of cost goes into the pockets of the producer. The price to the
consumer depends upon the supply, which can be reduced at pleasure by the
combination. . . . The aim is always for the highest price that will not check
prevent competitors from combining their economic power in ways that
are considered economically harmful.49 Examples of such harm include
increased prices, diminished quality, limited choices, and impaired
technological progress.50 To its critics, the BCS constitutes an agreement
among competing teams and conferences to limit competition in ways
that unduly benefit those BCS-affiliated teams and conferences.51
Though less likely, a plausible claim against the BCS may also be
brought under section 2 of the Sherman Act.52 Section 2 claims are
designed to prevent monopolistic behavior, and attempted monopolistic
behavior, by a single entity.53 Section 2 claims are often considered more
difficult to prevail upon than section 1 claims because of the
requirement that plaintiffs prove monopoly power, the appropriate definition
of which has confounded courts and scholars alike.54 Other significant
limitations to section 2 include judicial tolerance of monopolists that
behave without either a general duty to prospective customers or an
obligation to compete with their competitors.55 Critics of the BCS have
nonetheless portrayed the entity in a light consistent with that of an
The following Sections examine the BCS under both section 1 and
A. Section 1 and the BCS
To some detractors of the BCS, the postseason scheduling
agreement between the BCS, its six sponsored conferences, and the
University of Notre Dame is so anticompetitive that it unreasonably restrains
interstate trade and causes harm to consumers.57 Because the
BCSsponsored conferences and their member colleges and universities are
competitors on the playing field and in many ways off the field, their
agreement to collaborate on scheduling and revenue sharing, the
argument goes, may constitute a violation of section 1.
Before assessing the legal merits of such a critique, it is important
to canvass the purported evidence of anticompetitive behavior.
Although “anticompetitive” is an admittedly imprecise adjective, section 1
of the Sherman Act is thought to regulate an expansive scope of
business practices that may be labeled anticompetitive under basic
understandings of neoclassical economics.58 They include naked cartels of
competitors and other coordinated arrangements between two or more
economic actors.59 These arrangements normally pose an adverse
consequence to consumer prices and market output.60
The anticompetitive aspects of the BCS agreement are fairly
transparent, though not necessarily indicative of a section 1 violation. For
starters, although the champions of the six BCS-affiliated conferences
receive automatic bids to play in either the BCS National
Championship Game or one of the four BCS-sponsored bowl games—and thereby
obtain the accompanying revenue and visibility from participation in
those games—the champions from the five non-affiliated conferences
only earn bids under highly limited, exclusionary conditions. Namely, a
champion from a non-affiliated conference must either be ranked by
the BCS among its top twelve teams or, if ranked higher than a
champion from a BCS-affiliated conference, among the BCS’s top sixteen
teams.61 Even then, such a non-affiliated team lacks a guaranteed
appearance in a BCS bowl: if more than one such team meets the
aforementioned criteria, the BCS is only obligated to invite one of those
teams to a sponsored bowl game.62 Indeed, “for all practical purposes,
nine of the ten slots are ultimately reserved for the privileged
conferences due to the selection criteria utilized by the BCS.”63
The unbalanced distribution of BCS revenue to its six affiliated
conferences also strikes anticompetitive tones. By agreement, each
BCS-affiliated conference receives an equal share of BCS revenue,
unless such a conference sends more than one team to a BCS-sponsored
bowl game, in which case it is guaranteed a higher amount.64 Colleges
and universities that are members of one of the six BCS-affiliated
conferences are guaranteed a share of the revenue allocated to their
conferences, meaning that even when a team underperforms, its academic
institution financially benefits simply by virtue of the team’s
membership in a BCS-affiliated conference.65 With their revenue advantage,
these colleges and universities can more readily finance substantial
upgrades to their training facilities and stadiums and obtain superior
equipment, among other competitive benefits.66 In contrast, the five
non-BCS-affiliated conferences and their member institutions (which
furnish almost half of FBS teams) divide a considerably smaller share—
typically just thirteen percent of BCS revenue—among themselves.67
Similarly the inability of non-BCS-affiliated conferences to affect
structural change may be anticompetitive. Although all of the eleven
NCAA FBS conference commissioners and the director of athletics at
the University of Notre Dame are nominally regarded as “managers” of
the BCS,68 the more selective BCS Presidential Oversight Committee
(the “Oversight Committee”) is the organization’s “ultimate ruling
authority.”69 Consider the membership selection process for the
Oversight Committee. The committee comprises eight representatives, seven
of whom are selected by the six BCS-sponsored conferences and the
University of Notre Dame, while the lone remaining vote is determined
by the five non-BCS-sponsored conferences.70 To BCS critics, this vote
stacking in favor of BCS-affiliated conferences “all but ensur[es]” that
non-BCS-affiliated conferences “will have little influence on proposed
changes or reforms.”71
Lastly, the mere fact of division between BCS-sponsored
conferences and non-BCS-sponsored conferences—the “haves” and the “have
nots” —along with the profound difficulty that teams from
non-sponsored conferences have gaining an invitation to play in the BCS
National Championship Game, may cause subjective, but nonetheless real
and cyclical, harm to the “have nots.” Critics portray this division as
unfairly stigmatizing the non-BCS-sponsored conferences and their
member institutions as inferior.72 Possible reputational costs include
impaired recruitment of top high school football players and top coaches,
undermined marketing strategies, and diminished alumni bases.73 In
essence, a “self-fulfilling prophecy” emerges: because colleges and
universities from non-BCS-affiliated conferences are perceived as worse,
they become worse.74
Certain aspects of the purported self-fulfilling prophecy may prove
corroborative. Consider, for instance, that two highly successful
nonBCS conference schools—Boise State University and Texas Christian
University—have been unable to land a single Rivals.com Top 100
prospect since the Rivals rankings began in 2002.75 More generally, top
prospects are often attracted to colleges and universities that play in
BCS-sponsored conferences. The perception, and possible reality, that
the BCS bowl selection system favors teams from BCS-affiliated
conferences probably has influenced the college choices of top recruits and
consolidated talent in BCS-sponsored conferences.76
Although it is fairly easy to highlight the anticompetitive aspects of
a scheduling system that expressly favors some conferences and their
member institutions at the expense of others, Section C below
illustrates how the BCS could nonetheless prevail in a Sherman Act
examination of its scheduling system.
B. The Sherman Act’s Applicability to the BCS
As a foundational argument, the BCS could insist that the
Sherman Act simply does not apply to its scheduling agreements. The
Sherman Act, after all, primarily, and some would argue exclusively,
applies to commercial activities,77 and the BCS is—at least in its own
view—merely a device for scheduling postseason football games among
amateur athletes and their academic institutions.78 Moreover, courts
have refrained from applying the Sherman Act to rules that define a
sports activity and that lack commercial qualities.79 Consider the U.S.
Court of Appeals for the Third Circuit’s 1998 opinion in Smith v.
NCAA,80 where the court deemed an NCAA rule that constrained
bility for involvement in college sports to be noncommercial and thus
outside the scope of the Sherman Act.81
To be sure, BCS-sponsored bowl games invariably impact
commercial activity because they are worth hundreds of millions of dollars and
lead to contracting between varied commercial actors. BCS scheduling
policies could nonetheless be construed as fundamentally
noncommercial: a device for scheduling bowl games is essential to the playing
of those bowl games. Put more conceptually, the scheduling of games is
a necessary prerequisite to the playing of those games, at least in an
organized league. A league, self-evidently, cannot function without a
schedule.82 From that vantage point, BCS scheduling agreements seem
ill-suited for Sherman Act scrutiny.
This putative argument seems unlikely to prevail. For one,
although the wording of the Sherman Act suggests a limitation of its
purview to commercial activity,83 the U.S. Supreme Court has interpreted
those words to prohibit a broad range of anticompetitive activities.84
Generally, an activity that evades a commercial label can nevertheless
find itself subject to the Sherman Act “if it is undertaken with a
commercial purpose or with the knowledge that it would have
The 1984 U.S. Supreme Court decision in NCAA v. Board of Regents
of the University of Oklahoma86 only amplifies the vulnerability of BCS
scheduling to Sherman Act scrutiny. In that case, the Court reasoned
that when amateur sports and purportedly noncommercial sports
associations engage in a type of rulemaking that poses commercial
consequences, resulting rules may be subject to Sherman Act scrutiny.87
Subsequent case law indicates that scheduling of college athletics games is
one such form of rulemaking. Namely, in Worldwide Basketball & Sport
Tours, Inc. v. NCAA,88 the U.S. Court of Appeals for the Sixth Circuit in
2004 examined an NCAA rule that limited the scheduling of college
basketball games to a certain group of teams. Perhaps discouragingly
for the BCS, the Sixth Circuit found that the rule had exhibited
sufficient “commercial impact insofar as it regulate[d] games that
constitue[d] sources of revenue for both the member schools and the
Promoters.”89 BCS policies on scheduling appear to embody similar
qualities, particularly as they relate to the sourcing and uneven
distribution of revenue among member and non-member institutions.
C. Rule of Reason Analysis for the BCS
On balance, the Sherman Act appears to regulate BCS scheduling
agreements. The BCS, however, could still establish that those
agreements satisfy the Act’s scrutiny under section 1. A section 1 claim against
the BCS would trigger one of two standards of review: per se analysis or
rule of reason analysis. A trial judge hearing such a claim would be
obligated to select a standard of review.90
The selection of per se analysis, which presumes that a challenged
agreement violates section 1, and which imposes liability irrespective of
procompetitive effects or motive,91 is unlikely. For one, per se analysis
has attracted disfavor by courts in recent years.92 Its rigidity and
inflexibility, in particular, have drawn critique.93 In addition, per se analysis is
normally reserved for certain types of agreements—most notably
fixing schemes94 and group boycotts95—that are distinct from the sorts
of scheduling agreements entered into by the BCS.96
A court is far more likely to utilize rule of reason analysis when
scrutinizing BCS scheduling agreements under section 1. Rule of
reason analysis, which, unlike per se analysis, tends to advantage
defendants,97 constitutes an inquiry grounded in fact, empirical data, and
objective context.98 Under rule of reason review, an agreement is only
prohibited if it produces an anticompetitive injury that outweighs
Courts normally apply rule of reason analysis to joint ventures,100
which refer to associations of “two or more persons designed to carry
out a single business enterprise for profit for which purpose they
combine their property, money, effects, skill, and knowledge.”101 Courts
have described a diverse set of associations as joint ventures, with the
label affixed to professional sports leagues and their franchises, credit
card networks, and stock exchanges.102 These and other types of joint
ventures may enhance efficiency and generate goods that, in the
absence of the joint venture, would prove less economical or outright
As an association, the BCS seems most aptly described as a joint
venture.104 The BCS consists of representatives from conferences and other
academic entities who determine rules for the ranking of FBS teams and
the production of a national championship game and four bowl games.
The BCS may not be essential to the production of these goods—after
all, the conferences and their members could develop a different system
for production of a national championship game or bowl games105—but
it has been found to promote production efficiencies.106
Analyzing the BCS and its contracts as a joint venture subject to
rule of reason analysis would require determining the relevant
market.107 Identification of the relevant market for the BCS and its
purportedly anticompetitive contracts may pose a challenging task. In
many cases, identification of a relevant market is “inextricably related
to the question of whether the defendant’s competitors have been or
will be foreclosed from the market by virtue of the challenged acts.”108
To facilitate identifying the relevant market, a court would likely define
the BCS market in two components: the product market and the
The product market for BCS-sponsored football would capture its
unique identities and whether there are “reasonably interchangeable”
104 A characterization of the BCS as a joint venture has been reached in other legal
scholarship. See, e.g., Warmbrod, supra note 6, at 356. Single entity status, however, has also
been ascribed to the BCS. See, e.g., Pruitt, supra note 37, at 128.
105 See, e.g., Bernie Lincicome, The BCS Is All About Politicking. Urban Meyer Gets That and
Now Florida, Not Michigan, Is Playing in the Title, Pittsburgh Post-Gazette, Dec. 7, 2006,
at C2 (“[T]he BCS is entirely unnecessary . . . . No. 1 and No. 2 can be determined by vote,
and unless there are only two undefeated teams to rank, as they were last year with Texas
and USC, disagreements are as inevitable then as now.”).
106 See Warmbrod, supra note 6, at 356 (“Without the agreement among the
conferences, a national championship game would probably not occur because of the historically
and contractually established conference relationships with various bowls.”).
107 It is possible, though unlikely, that a court could adopt a “quick look” rule of
reason analysis that would not compel determination of a relevant market. See Cal. Dental
Ass’n v. FTC, 526 U.S. 756, 769–71 (1999). Instead, competitive harm is presumed and the
defendant has the burden of justifying the restraint on trade. See id. Quick look analysis is
used in cases where extensive empirical analysis under regular rule of reason is not
required and where per se analysis is ill suited due to the lack of obvious anticompetitive
effects. See id. Analysis of the BCS, however, would likely compel substantial empirical
analysis and determination of the relevant market. For a cogent discussion of the forms of
analysis used in sports-related antitrust cases, see Michael A. Cokely, In the Fast Lane to Big
Bucks: The Growth of NASCAR, 8 Sports Law. J. 67, 91 (2001).
108 1 Louis Altman & Malla Pollack, Callmann on Unfair Competition,
Trademarks and Monopolies § 4:31 (4th ed. 2009).
109 See Daniel E. Lazaroff, Entry Barriers and Contemporary Antitrust Litigation, 7 U.C.
Davis Bus. L. J. 1, 28 (2006) (noting the usual importance of product and geographic
markets in rule of reason analysis).
substitutes.110 In antitrust litigation concerning the broadcasting of
NCAA-sponsored football games, the relevant market has been
identified quite narrowly as the broadcasting of NCAA-sponsored college
football games, as opposed to the broadcasting of any college football
games, any football games, any sporting events, or any other type of
entertainment.111 The idiosyncratic characteristics of such
programming are thought to attract a distinctive class of audience, and one that
commands a compact, non-commutable product market.112 Antitrust
litigation relating to the playing of NFL games has yielded similarly
constricted interpretations of the appropriate product market.113 It is
therefore plausible, if not likely, that an appropriate product market for
BCS-sponsored football would be construed restrictedly. Such a market
could constitute the deliverance, playing, and marketing of elite,
postseason college football games.
The geographic market for the BCS is more predictable. Normally,
a geographic market refers to the locations where consumers seek a
particular product.114 For BCS-sponsored football, the market seems
undeniably a national one. The BCS sponsors a “national” championship
game that is broadcast across the United States (indeed, the world) and
that attracts the interest of consumers from all parts of the country.115
With a relevant market established for the BCS, rule of reason
analysis would likely then require a determination of market power, an
often costly and uncertain task for plaintiffs.116 Conceptually, market
power for a joint venture refers to the venture’s ability to raise prices
“above the competitive level without losing so many sales so rapidly that
the price increase is unprofitable and must be rescinded.”117 As a
practical matter, a joint venture with market power dominates a market in
such a way that prices can be maintained at artificially high levels.118
George Hay, one of the foremost antitrust authorities in the United
States, characterizes potential consumer harm as a foundational
concern of market power assessment: “If the structure of the market is such
that there is little potential for consumers to be harmed, we need not
be especially concerned with how firms behave because the presence of
effective competition will provide a powerful antidote to any effort to
When examining the market power of a joint venture, courts
normally scrutinize the extent to which the venture robs the marketplace
of competition that would occur in its absence.120 More positively,
courts also highlight whether a joint venture improves market
efficiencies or delivers enhanced goods to consumers.121 Joint ventures usually
satisfy rule of reason analysis.122 Courts often find they promote market
efficiencies and provide consumers with a superior marketplace.123 At
the same time, courts are wary of joint ventures that restrain the
marketplace “broader than necessary.”124
The BCS as a joint venture, when judged in a narrowly defined,
national market, can offer a variety of arguments that are both
consistent with efficiency-promoting and unreflective of consumer harm.
For one, the BCS provides consumers with a national
championship game and four prominent bowl games that may otherwise prove
unavailable. After all, until the BCS came into existence, there was “no
procedure for attempting to match the top two ranked teams against
each other.”125 History suggests that without the BCS, organizers of
college football would be ill equipped to schedule postseason matchups
between the two best teams: in the fifty-six years prior to the BCS, the
number one and number two ranked teams only played each other
eight times, or, on average, once every seven years.126
Along those lines, although a sixteen-team playoff system, as
advocated by many, would provide a different type of excitement for college
football fans and greater opportunities for non-BCS-sponsored
conferences to attract the limelight, it would not ensure that the top two FBS
teams played each other.127 Such a playoff system might also lengthen
the playing season for student-athletes or, to avoid that outcome,
eliminate regular season games that, for some colleges and universities, are
of tremendous economic value.128 In that same vein, remember that
the BCS raises the value of regular season games.129 Empirical data is
corroborative: “For the 15 years before the BCS, attendance at all
regular season college football games remained flat. . . . Since the formation
of the BCS, that number has grown each year” because “the regular
season games matter so much.”130
In furtherance of appealing to the maximum number of college
football fans, the BCS also financially rewards those conferences that
generate the most fan interest—and revenue production—while
treating as inferior the smaller and less financially contributing conferences.
Although a bottom-up perspective might direct the BCS to assist the
latter type of conferences, creating a legal obligation for such an outcome
seems unfounded and potentially self-destructive.131 After all, if the six
BCS-sponsored conferences were no longer provided with automatic
bids, membership in the BCS would seemingly lose much of its appeal.
The BCS can also attempt to repel adverse findings in a rule of
reason analysis by highlighting its use of empirically driven rankings. As
discussed earlier, the BCS furnishes a sophisticated ranking
methodology that blends together—albeit in a somewhat mysterious manner—
empirical data, statistical insights, and traditional human impressions.132
Although two-thirds of this methodology are contingent upon human
impressions, which have sometimes elicited rebuke,133 it has nonetheless
drawn praise for its incorporation of objective measurements.134 The
use of objective criterion to rank—and reward—teams would likely
benefit the BCS in antitrust scrutiny, as such scrutiny tends to favor
empirically driven approaches.135
Finally, the BCS could assert an absence of discernable consumer
injury caused by BCS scheduling. For starters, the BCS may not raise
consumer prices for goods related to postseason college football, or at
least not in a disconcerting way. For instance, although ticket prices to
attend the BCS National Championship Game and BCS-sponsored
bowl games are surely exorbitant for most consumers—especially when
two popular college football teams are scheduled to play one another
in a bowl game—those prices appear to reflect consumer demand for
the product and the finite supply of stadium seats to watch the game
live.136 Then again, for many schools, ticket prices for regular season
games against opponents from BCS-sponsored conferences are higher
than for those against non-BCS-opponents. Perhaps that reveals BCS
conference sponsorships as raising prices for consumers. That finding,
however, presents a “chicken-and-egg” problem: are the ticket prices
higher because teams in BCS-sponsored conferences are themselves
more marketable, or because membership in a BCS-sponsored
conference makes them more marketable?137
Consumer harm may also not be provable through an
outputoriented argument. To be sure, the BCS may reduce an ideal output of
games for consumers to enjoy, since a sixteen-team playoff would
involve more teams and thus more games. On the other hand, the BCS
did not replace a playoff system—in fact, in the more than five decades
of organized college football that preceded the BCS, there was no
playoff system. A future possibility of such a playoff system also carries a
variety of real-world obstacles, including concern that it would harm the
overall product of postseason college football.138 From those vantage
points, the BCS seemingly does not “reduce” a previous or certain
output of games that would otherwise exist in its absence. Perhaps the
opposite, in fact: the BCS might increase the output of postseason games
or at least elevate their quality.
The BCS and a college football playoff system, moreover, would
not comprise mutually exclusive entities; both could exist
simultaneously and compete against one another. Of course, the dominance of
the BCS in controlling the production of playoff college football games
may, as a practical matter, preclude competition.139 That would seem
especially true in light of the aforementioned inequities among
institutions in BCS-sponsored conferences and those in non-BCS-sponsored
conferences—inequities caused by, or at least consequences of, the
BCS.140 In light of the popularity of the BCS National Championship
Game and the four BCS-sponsored bowl games, along with the
BCSenhanced value of regular season games, however, the unique qualities
137 See, e.g., Brett Dawson, UK Raises Prices of Football Tickets, Courier-J. (Louisville),
Apr. 13, 2010, at C3 (noting higher ticket prices for University of Kentucky football games
against opponents from BCS-sponsored conferences). Chicken-and-egg problems are
apparent across industries. See, e.g., Judith A. McMorrow, Professional Responsibility in an
Uncertain Profession: Legal Ethics in China, 43 Akron L. Rev. 1081, 1082–83 (2010) (describing
chicken-and-egg problems in legal academia).
138 See Steve Yanda, BCS Is Decried During Hearings: Subcommittee Warns of Potential Action,
Wash. Post, May 3, 2009, at D01 (describing how implementation of a playoff system might
endanger the system and success of bowl games).
139 If non-BCS schools attempted to form a rival ranking system/tournament and
failed because the barrier to entry proved insurmountable, it would strengthen an
antitrust attack of the BCS, especially in terms of establishing BCS’s market power. Cf. Nelson
v. Monroe Reg’l Med. Ctr., 925 F.2d 1555, 1573 (7th Cir. 1991) (“It is fundamental that in
order to establish market power, the plaintiffs must show a barrier to entry that prevents
140 See supra notes 22–31 and accompanying text.
of the BCS appear to have procompetitive qualities that may outweigh
their anticompetitive effects.
D. Section 2 and the BCS
Although criticisms of the BCS most commonly raise section 1
concerns, section 2 supplies an additional source of examination.
Section 2 bars an entity from intentionally behaving as an illegal monopoly
in a relevant market.141 Various politicians and commentators have
characterized the BCS as an illegal monopoly.142 Senator Hatch, for
instance, contends that the BCS enjoys monopoly power because it has
purportedly eliminated actual and potential competition for elite
postseason college football.143
For purposes of section 2, the relevant market of the BCS would
likely constitute either the national championship game or the four
BCS-sponsored bowl games.144 A court assessing the BCS in those
markets would necessarily weigh the possible, albeit meager and highly
restricted, opportunities for teams from non-BCS-sponsored conferences
to participate in either the national championship game or in one of
the four BCS-sponsored bowl games.
The BCS may appear monopolistic if one highlights its system of
automatic bids. Indeed, because of the six automatic bids for the six
BCS-sponsored conferences, at least two of the BCS-sponsored bowl
games are played only by teams from BCS-sponsored conferences. Then
again, the BCS does not “own” the concept of a national championship
game between FBS teams; other FBS teams could, in theory, host one.
The same is true of bowl games. Dozens of non-BCS-sponsored bowl
games are played each year, albeit typically with less fanfare and smaller
Perhaps further strengthening a BCS defense to a section 2 claim is
the requirement that monopolistic power arise through
nonmeritorious means. In 1966, the U.S. Supreme Court enunciated such a
point in United States v. Grinnell Corp.: an illegal monopoly under section
2 must reflect a “willful acquisition or maintenance of that power as
tinguished from growth or development as a consequence of a superior
product, business acumen or historic accident.”145 Although BCS critics
may establish the practical inability of entities to rival the BCS, the BCS
can respond, with some persuasion, by characterizing its dominance as
merely reflective of a superior product and an optimal venue for
II. The Appropriateness of the Government
Investigating the BCS
A reader of this Article might rightfully wonder: Why does the
government care about this topic? To be sure, the list of serious
problems facing the United States is long and frightening, and although the
author does not profess to have the list, surely the plight of postseason
college football is not listed anywhere near the top.146 It may thus seem
dubious for federal and state governmental bodies to expend tax
dollars, time, and other assets investigating the “fairness” and possible
illegality of college football scheduling. Resources are, after all, finite and
opportunity costs arise when the government investigates the BCS at
the expense of other topics.
So why is the BCS—and, for that matter, other “crisis”-causing
sports entities—in the cross-hairs of Congress and the Justice
Department? Undoubtedly, government, and particularly elected officials, are
partly motivated by the media attention generated by such
investigations.147 Granted, some of the attention can prove quite negative. For
instance, after the chairman and ranking member of the House
Government Reform Committee issued subpoenas to investigate steroid
145 384 U.S. at 570–71.
146 See, e.g., Paul Krugman, Op-Ed., The Phantom Menace, N.Y. Times, Nov. 23, 2009, at
A27 (outlining the economic troubles confronting many U.S. citizens).
147 Even members of Congress agree that desire to attract headlines influences
Congress’s interest in sports investigations. See, e.g., Source: Mitchell Investigation Now Has Key
Documentation, Capital, Nov. 16, 2007, at C3 (citing comments by U.S. Senator John McCain, who
characterized a possible congressional hearing on steroids in baseball as being for “a little
headline grabbing”). What might be deemed congressional dog-and-pony shows are not
limited to sports investigations. Consider that during the financial crisis, critics accused some
government actors of issuing an inordinate amount of subpoenas to investigate hedge funds
to solicit media attention. See Craig S. Warkol & Robert E. Hauberg Jr., Aspatore
Special Report: Assisting Clients in Government Investigations During a Financial
Crisis; An Immediate Look at the Attorney’s Role in Resolving the Key Legal Issues
Surrounding Government Investigations (2008) (noting sensational news stories during
the “financial crisis” motivated government actors to conduct “overbroad” investigations).
use in baseball in 2005, they were derided as ego-obsessed.148 Still,
those same congressmen appeared on newscasts all over the country.
The notion that political actors gravitate toward media-friendly
investigations, such as those concerning sports, is verifiable through
more than common sense. It is also consistent with basic theories of
human behavior. Communication theory scholars, for instance, find
that because many political actors presume that news media influences
public perceptions, they are motivated to be in the news.149
Simple enough, perhaps, but politicians’ enthusiasm to be in the
news for sports investigations still draws the ire of many. This strain of
criticism is neither new nor unique to college football. Over the last
decade, Congress has attracted scorn for actively investigating steroid
use in professional baseball, with particular rebuke reserved for
highprofile congressional hearings that feature Major League Baseball
stars.150 Critics have lampooned these investigations as ridiculous and
have derisively parodied the associated hearings.151 Some have gone a
step further, contending that policies affecting professional athletes
ought to be left to the collectively bargained discretion of leagues and
their respective players’ associations and far from the halls of
Congress.152 An analogous deduction might be raised of postseason college
football: let the conferences and their member colleges and universities
determine their own system of games. At worst, some colleges and
universities will be economically disadvantaged and some of their fans and
148 See Spencer S. Hsu & Michael D. Shear, The Fan with Subpoena Power: Hearings on
Steroid Use in Baseball Put Political Spotlight on Davis, Wash. Post, March 11, 2005, at B01.
149 See Jonathan Cohen et al., The Influence of Presumed Media Influence in Politics: Do
Politicians’ Perceptions of Media Power Matter?, 72 Pub. Opinion Q. 331, 331–43 (2008) (noting
the political actor that perceives a greater degree of media influence on the public is more
likely to solicit the media to generate coverage and promote his or her agenda).
150 See Michael McCann, Fehr and Selig in D.C.: What Will Happen When Bud and Don Face
Congress?, Sports Illustrated, Jan. 15, 2008, http://sportsillustrated.cnn.com/2008/
writers/michael_mccann/01/14/mccann.congress/index.html (predicting the outcome
of testimony by Donald Fehr and Bud Selig before Congress about steroid use in baseball).
151 See, e.g., Mark McGuire, Hold the Work, Time for a Hearing, Times Union (Albany),
June 13, 2008, at B2; Will Leitch, Impotent ‘Roid Rage’: Why Rocket Hearings Didn’t Take Off,
N.Y. Mag., Feb. 25, 2008, at 32; Howard Mortman, Congress: The Ball’s in Their Court,
Politico (Sept. 3, 2007), http://www.politico.com/news/stories/0907/5613.html.
152 See, e.g., Brent D. Showalter, Comment, Steroid Testing Policies in Professional Sports:
Regulated by Congress or the Responsibility of the Leagues?, 17 Marq. Sports L. Rev. 651, 677–78
(2007) (discussing professional sports leagues’ drug testing policies and proposing that
Congress should not mandate drug testing policies for all leagues); Journal Editorial Report:
Panel Discusses News of the Week
(Fox News Network television broadcast Feb. 17, 2008)
(quoting Steve Moore of the Wall Street Journal: “I don’t think this is something Congress
should get involved in, in the first place.”).
student-athletes will be disappointed, but no one’s life will be lost, no
one’s health will be hurt, and no one will lose his or her home or
The charge that the BCS and the scheduling of postseason college
football teams are not worthy of government investigation may
nonetheless be misplaced. It might also signal a form of prejudice against an
otherwise legitimate topic merely because that topic is sports related.
Keep in mind, college football is a major commercial enterprise
which generates significant viewership and substantial business activity.
The collective revenues gathered from bowl games in 2009–2010 alone
topped $237 million and provided profits of over $157 million for
participating schools.153 Not only are these totals impressive, they are
These revenues only form the tip of the iceberg. As noted earlier,
universities with successful college football programs enjoy an increased
profile among prospective students and recruits.155 Similarly, countless
businesses and alumni are closely affiliated, in an economic sense, with
college programs.156 Empirical evidence has shown that alumni and
boosters respond positively to football bowl participation in the form of
financial contributions.157 Consequently, any unfairness in the ability to
participate in BCS bowl games poses an impact not only on immediate
bowl revenue streams but also on the retention and attraction of other
major college sponsorship and donor opportunities.158
Organizational decisions of the BCS have profound effects on the
economic prospects of individual schools and on the competitive
landscape of college football as a whole. Why, then, does the prospect of
congressional oversight arouse such skepticism? Does congressional
oversight of other media-friendly industries such as the entertainment
industry and the video game industry not strike commentators as
Perhaps criticism ought to be levied against the political actors who
are interested in the BCS not so much for the merits of their pursuit,
but rather for their inability to persuade Americans of their legitimate
investigatory rationales. By framing their dissatisfaction of the BCS as a
question of sporting fairness rather than as a potentially illegal form of
economic manipulation, political actors have likely undersold the topic.
III. Alternative Approaches
The prospect of an antitrust case against the BCS should not tempt
BCS critics to count down the days to a college football playoff system—
at least not a system compelled by a court order. As analyzed in this
Article, such a case presents, at best, a mixed bag, and one that on balance
seems tilted in favor of the putative defendant.
Improving the competitiveness of postseason college football,
however, may still be accomplished through changes to the BCS.
One possible reform would be dramatic: using economic
rationales—as opposed to legal compulsion—to persuade BCS members to
dismantle the BCS and to adopt a playoff system. Such a system might
be akin to the “March Madness” NCAA Division I Basketball
Championship for men’s college basketball. It would pose certain advantages
and certain disadvantages.
The potential for enhanced profits, particularly from enlarged
television broadcasting revenue, suggests one leading rationale for BCS
schools to adopt a playoff system. Compare the primary television
contract of postseason college basketball with that of BCS-sponsored
postseason college football. In 2000, CBS reached an eleven-year agreement
with the NCAA to carry the men’s NCAA Basketball Tournament for $6
billion.159 In 2008, ESPN acquired the BCS Championship series from
2011 to 2014 for $495 million—about $380.5 million less per year than
the basketball tournament.160 Even when taking into consideration
differences in contract length and the presence of a greater number of
postseason basketball games than postseason football games, there
remains a notable disparity in television revenue between the two prime
sporting events. Whereas the former constitutes a beloved and
billiondollar playoff system, the latter resembles a smaller and disputatious
sequence of ranking-inspired games.
A college football playoff system might also increase merchandise
sales. Instead of a consumption framework in which fans purchase team
merchandise for one bowl game, a playoff format would furnish
opportunities for waves of sales, at least for those teams that progress in a
playoff system. Indeed, each playoff level could be associated with new
merchandise sales, such as is found in the NFL, with different styles of
tshirts, caps, and other team items sold for the Wild Card Round,
Divisional Round, Conference Round, and the Super Bowl.161
Aside from opportunities for improved revenue, broader notions
of legitimacy may also motivate a shift to a playoff system. Myriad critics
of the BCS posit that a playoff system would produce a more
“legitimate” champion.162 Legitimacy, more generally, is associated with
improved business functioning and success in the marketplace.163 For
financial reasons, therefore, BCS schools may covet a system of games
perceived as more rightful.
Playoffs might also appeal to BCS schools because they comport
with the American narrative of the underdog who, no matter the odds,
always possesses a chance to succeed through hard work and talent.
Indeed, one of the more prominent ideologies in the United States is the
“meritocratic ideology,” defined by social psychologists John Jost and
Orsolya Hunyady as belief in a system that “rewards individual ability
and motivation, so success is an indicator of personal deservingness.”164
This ideology leads Americans to view “the underdog” story in any
context as particularly appealing—and marketable.165 With the BCS and its
system of ranking and automatic bids, the underdog—definable as a
team from a non-BCS-sponsored conference—essentially has no chance
at a national title or appearing in a bowl game.166
The meritocratic ideology appears to contribute to the more
considerable fan interest in the NCAA Men’s Basketball Championship
than in the BCS National Championship Game. To illustrate, while the
first seed Duke University and fifth seed Butler University NCAA
Basketball Championship game in March 2010 attracted 48.1 million
viewers, the BCS first-ranked University of Alabama and second-ranked
University of Texas BCS Championship Game in January 2010 generated
30.8 million viewers—a 14.9% increase from the previous year, but still
considerably less than the number of viewers of the NCAA Men’s
Basketball Championship.167 It should be noted, moreover, that basketball
is not necessarily an intrinsically more popular sport than football in
the United States. Indeed, the most recent Super Bowl attracted 106.5
million U.S. viewers.168
There are, however, disadvantages to adopting a playoff system. A
leading disadvantage would concern contract law and the contractual
obligations inherent in broadcasting agreements between BCS member
institutions and various networks and entertainment providers. ESPN,
for instance, has a contract to broadcast the BCS Championship Series
Games through 2014.169 If BCS schools sought a change of format prior
to the expiration of the contract, it would either require a
renegotiation with ESPN or a contractual breach, the latter of which might risk a
lawsuit with ESPN.
Although waiting for the expiration of existing contracts to adopt a
playoff system would remove the possibility of breach of contract claims,
it would not eliminate other types of obstacles. Determination of playoff
eligibility would constitute one such concern. The resolution of that
determination, furthermore, would only beget other issues, such as
whether to preserve school rivalry games and whether to preserve the
importance of strength of schedule in determining which teams are
invited to participate in postseason football.
The value of regular-season games and their appeal to fans might
also be damaged by shifting to a playoff format; once a school is
assured of a playoff spot, it may adopt a less competitive and aggressive
approach in the remainder of its games.
Team redistribution would pose still another hurdle to a playoff
system. The emergence of such a system would likely cause a
fling of teams and conferences. Teams in the Southeastern Conference
(SEC), for instance, reveal why. Consider that ten of twelve teams in the
SEC received bowl bids in 2010. If a playoff system were in a place,
perhaps only one of those twelve teams would be able to earn an invitation.
As a result, several, if not most, SEC teams might attempt to flee the
conference. Historic rivalries could therefore be eliminated, which in
turn would trigger backlash from fans. None of this is to say that a
playoff system could not be created without sacrificing rivalries. Perhaps
such a goal could be accomplished by inserting certain non-conference
games into the schedule—but it would necessitate an arduous task.
It should be emphasized that whether a playoff change occurs
would be influenced by which schools receive the spoils of the BCS
system. Under the current system, six conferences have received at least
$100 million and Notre Dame received $23 million from the BCS since
2004.170 Under a playoff system, these monies may be increased in the
aggregate but also may be redistributed to a wider scope of colleges and
universities. This highlights the difficulty of BCS reform: the schools in
BCS conferences risk a new economic system that may prove more
prosperous for all FBS teams, but not necessarily for BCS teams.
A less dramatic, though still significant BCS reform, would be to
ensure that all twelve conferences are treated the same for purposes of
participating in BCS-sponsored bowl games. This assurance could be
obtained simply by expanding the number of BCS-sponsored bowl
games. Doing so would mitigate any antitrust injury caused by the
current BCS system, as all conferences would be able to participate in
BCSsponsored bowl games. Indeed, by including all twelve FBS conferences
in the selection of bowl games and thereby assuring that every
conference appears in a BCS-sponsored bowl game, antitrust worries would
recede. To be sure, some bowl games would prove of higher financial
and media value than others, meaning economic and reputational
disparities between bowl games would remain. Still, in this more
egalitarian arrangement, less prominent conferences such as the
MidAmerican Conference and the Sun Belt Conference would obtain
improved media exposure and, in time, would likely be viewed as “equals”
to the six conferences currently affiliated with the BCS.
A hybrid of the BCS and a playoff system would constitute still
another voluntary reform. A hybrid could preserve the BCS while
potentially offering key benefits commonly associated with a playoff format,
including increased viewership and spiked merchandizing revenue.
A possible first step in a hybrid model would entail the shortening
of the regular season by one or two games. Although some colleges and
universities would likely object to such a move because of concerns over
lost revenue, a regular-season reduction would ensure that playoff
games do not elongate the calendar of college football. Preserving the
existing length of the college football season would sidestep concerns
about both student-athletes missing additional classes and the increased
risk of injury and bodily wear-and-tear that go along with the playing of
additional football games.
The structuring of the playoff format would comprise the next step
in a hybrid model. A sensible approach might include the first place
team of each conference being automatically invited to the playoffs.
Such a design would ensure that the team that dominates its conference
rightly ascends to the collegiate playoffs. As it stands now, a team that
dominates its conference may miss out on the top bowl games because it
plays in a non-BCS sponsored conference. Also, by redistributing the top
conference teams to play against one another, advancement would
require defeating top teams from other conferences. To illustrate, a
Mountain West Conference team, such as Texas Christian University,
could play a team from the SEC, such as Auburn University.
Next, eight wild card teams could enter the playoffs based on
strength of schedule and record. An arrangement of this sort would
discourage a conference with important historic rivalries, such as the
SEC, from voluntarily dissolving because their teams tend to be among
the best. A BCS-style calculation, moreover, could be incorporated to
assess which teams should qualify for a wild card. Like the current BCS
ranking methodology, a playoff methodology could place statistical
value in strength of opponents. Therefore, a competitive conference like
the SEC might receive multiple wild-card selections. At the same time,
the calculation should not factor in the historic prestige of a particular
team or its conference; past strength of the current year opponents
would frustrate a renewed emphasis on merit.
A blended approach is similar to how “bubble teams” make the
NCAA tournament for men’s basketball. Although the teams with the
best records in conferences normally earn positions in the tournament,
those on the bubble are scrutinized based on the strength of schedule.
Such a system has proven widely popular.
Although none of these potential changes to the BCS may emerge,
they are likely more appealing “fixes” to the current controversial, but
probably legal, system of postseason college football. And a fix to the
collegiate postseason is what fans and members of Congress are
While the BCS is unpopular and exhibits a bevy of anticompetitive
qualities, this Article asserts that it is likely compatible with sections 1 of
2 of the Sherman Act. This conclusion is reached primarily because the
deferential rule of reason analysis would be applied in a legal challenge
to the BCS and because the BCS offers procompetitive characteristics
that may not be obtainable through other arrangements and that were
not shown in the fifty-six years prior to the BCS coming into existence.
The BCS could nonetheless benefit from voluntary, economically
maximizing improvements that would redesign postseason college football
to better comport with social, political and commercial expectations.
11 See Bill Hancock , A Whole Season of Playoffs on the Gridiron, Tampa Trib ., Jan. 7 , 2010 , at 15.
12 See The Bowl Championship Series: Money & Other Issues of Fairness for Publicly Financed Universities; Hearing Before Subcomm . on Commerce, Trade & Consumer Protection, Comm. on H. Energy & Commerce, 111th Cong . ( 2009 ) (statement of John D . Swofford, Comm'r of Atlantic Coast Conference) (noting the positive impact of the BCS on regular season attendance). The statement itself is available at http://democrats.energycommerce.house.gov/ Press_111/20090501/testimony_swofford.pdf.
13 See id.
14 See The Bowl Championship Series: Is It Fair and in Compliance with Antitrust Law?: Hearing Before the Subcomm . on Antitrust, Competition Policy & Consumer Rights of the S. Judiciary Comm., 111th Cong . ( 2009 ) (testimony of Barry J . Brett). The testimony itself is available at http://judiciary.senate.gov/pdf/09-07-07BrettTestimony.pdf.
15 See Jay C. Upchurch , Bill Hancock Takes Your Questions: The Controversial BCS Has Found the Ideal Spokesman, but Can This Genial Sooner Win Over Critics of the System to Put the Nation's Top Two Football Teams in a Postseason Bowl? , Sooner Mag ., Winter 2010 , http:// www.oufoundation.org/sm/winter2010/story.asp?ID= 361 .
16 See id . (quoting BCS spokesman Bill Hancock: “[T]he fact is the BCS is not an entity. It's just a series of five games, and people try to make it out to be more than it is .”).
17 See Steve Schrader , Subcommittee Passes Anti-BCS Measure, Detroit Free Press, Dec. 10 , 2009 , at C4 (describing President Obama as a “BCS critic”).
18 See Press Release, Orrin G. Hatch, U.S. Sen. for Utah, Hatch Requests DOJ Investigation into BCS (Oct. 21 , 2009 ), available at http://hatch.senate.gov/public/index.cfm?Fuse Action= PressReleases.List (follow “view by month or year” hyperlink; then search “ October 2009 ” ; then follow hyperlink bearing press release name).
19 See Stephen Tsai , Jones Will Give His Assistants Donation, Honolulu Advertiser, Dec. 11 , 2007 , at D1.
20 See Jordan Fabian , Anti-BCS Group Launches New Ad Targeting Fiesta Bowl, The Hill ( Jan. 4 , 2010 , 04 :03 PM), http://thehill.com/blogs/blog-briefing-room/news/74227-playoffpaclaunches -new-ad-targeting-fiesta-bowl. The symposium that gave rise to this Article featured a debate between the executive director of the Playoff PAC, Matthew Sanderson, and Roy Kramer, founder of the BCS, video of which is available at http://www.bc.edu/schools/law/ newsevents/events/conferences/ncaa_symp_video.html.
21 See generally Dan Wetzel et al., Death to the BCS: The Definitive Case Against the Bowl Championship Series ( 2010 ).
22 See, e.g., Frederic J. Frommer , House Panel Passes College Football Playoff Bill: House Subcommittee OKs Bill Aimed at Forcing College Football to Set Up New Playoff System , ABC News, Dec. 9 , 2009 , http://abcnews.go.com/print?id =9292801 (discussing the House Energy and Commerce Committee's Subcommittee on Commerce, Trade, and Consumer Protection passing a resolution in December 2009 that would prevent the promotion of a game as a national title game unless it were accompanied by a playoff).
23 See Andy Staples , Butler Nearly Toppled Goliath; Now Boise State Can Finish the Job, SI . com (Apr. 6 , 2010 ), http://sportsillustrated.cnn.com/2010/writers/andy_staples/04/06/butlerboise/index.html#ixzz0zFSbSXMy.
24 If it is ranked eighth or higher in the final BCS standings, the University of Notre Dame is guaranteed an invitation to a bowl game . See Gregory L. Curtner et al., The BCS : Antitrust Goes Bowling?, Global Competition Pol'y, May 2009 , at 1 , 4, available at http:// www.bestlawyers.com/marketing/articles/4546_36.pdf.
25 See Michael Smith , The BCS ' Big Split, Sports Bus . J., Jan . 25 , 2010 , at 1.
26 See Kristi Dosh , Is the College Football BCS Fixed? , Forbes. com (Sept. 2 , 2010 , 7 :03 PM), http://blogs.forbes.com/sportsmoney/2010/09/02/is -the-college-football-bcs-fixed/ (noting that the affiliated conferences, along with Notre Dame (which is not a member of a conference), typically receive 86% to 91% of the BCS revenue); see also Press Release, Sen . Orrin G. Hatch, supra note 18 (providing other data).
27 See Thomaselli , supra note 9.
28 See Eric Dexheimer , UT Athletics Officials Wary of Sharing Profits , Austin Am .-Statesman, Sept. 30 , 2007 , at A7. Although it varies by college and university, ninety percent of revenue generated by a given school's sports program typically comes from the football and men's basketball teams . See Kevin Tresolini , Many Say Wrestling Pinned by Title IX , News J . (Wilmington), June 23 , 2002 , at 1A. Some experts posit an even higher percentage . See Loren Tate , Despite Economy, Guenther Has Act Together, Illinihq. com (Mar. 4 , 2010 ), http://www.illinihq. com/news/2010/03/04/despite_economy_ guenther_has_act_together (citing remarks by Ron Guenther, athletic director of the University of Illinois, who estimates that ninety-eight percent of his university's revenue comes from the football and men's basketball teams ).
29 See Press Release, Sen. Orrin G. Hatch, supra note 18.
30 See Melissa Ezarik , Admissions Score: Sports Success and College Applications , Univ. Bus., May 2008 , at 22 (discussing the correlation between college football and basketball success and an increase in student applications the following year ).
35 See Utah Given Invitation to Join the Pac- 10 , Associated Press, June 17, 2010 .
37 See Christopher Pruitt , Debunking a Popular Antitrust Myth: The Single Entity Rule and Why College Football's Bowl Championship Series Does Not Violate the Sherman Antitrust Act, 11 Tex. Rev. Ent. & Sports L. 125 , 144 ( 2009 ).
38 H.R. Res . 68 , 111th Cong. ( 2009 ) (introduced by U . S. Rep. Neil Abercrombie on Jan. 15 , 2009 ).
39 Two bills similar to House Resolution 68 were also introduced in the House of Representatives . The College Football Playoff Act of 2009 , H.R. Res . 390 , 111th Cong. ( 2009 ), was introduced by U . S. Representative Joe Barton on Jan. 9 , 2009 . If it had become law, House Resolution 390 would have “prohibit[ed], as an unfair and deceptive act or practice, the promotion, marketing, and advertising of any post-season NCAA Division I football game as a national championship game unless such game [was] the culmination of a fair and equitable playoff system .” See H.R. Res . 390 . About a week later , Championship Fairness Act of 2009 , H.R. Res . 599 , 111th Cong. ( 2009 ), was introduced by U . S. Representative Gary Miller on Jan. 16 , 2009 . If it had become law, House Resolution 599 would have “prohibit[ed] the receipt of Federal funds by any institution of higher education with a football team that participate[d] in the NCAA Division I Football Bowl Subdivision, unless the national championship game of such subdivision [was] the culmination of a playoff system .” See H.R. Res . 599 .
40 See infra notes 43-145 and accompanying text.
41 See infra notes 146-158 and accompanying text.
42 See infra notes 159-170 and accompanying text.
43 See David Millon , The Sherman Act and the Balance of Power , 61 S. Cal . L. Rev. 1219 , 1287 - 92 ( 1988 ).
44 See e.g., Citizen Publ'g Co. v. United States , 394 U.S. 131 , 134 ( 1969 ); Posner v . Lankenau Hosp., 645 F. Supp . 1102 , 1118 (E.D. Pa . 1986 ).
45 See Howard A. Shelanski & J. Gregory Sidak , Antitrust Divestiture in Network Industries, 68 U. Chi . L. Rev. 1 , 46 ( 2001 ).
46 See Robert H. Lande , Wealth Transfers as the Original and Primary Concern of Antitrust: The Efficiency Interpretation Challenged, 34 Hastings L .J. 65 , 83 - 106 ( 1982 ) (discussing the dynamics of the debate over how the Sherman Act should protect consumers). Senator John Sherman alluded to this debate in comments before Congress: 21 Cong . Rec. 2460 ( 1890 ) (statement of Sen . John Sherman).
47 See Ross C. Paolino , Upon Further Review: How NFL Network Is Violating the Sherman Act, 16 Sports Law . J. 1 , 12 ( 2009 ).
48 See William K. Jones , Book Note, Concerted Behavior Under the Antitrust Laws , 99 Harv. L. Rev . 1986 , 2000 ( 1986 ) (reviewing Phillip E . Areeda, Antitrust Law: An Analysis of Antitrust Principles and Their Application ( 1986 )). As an illustration, see, for example, the 2005 decision by the U.S. Court of Appeals for the Third Circuit in Gordon v . Lewis-
56 See generally Katherine McClelland, Comment, 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 ( 2004 ).
57 See, e.g., 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 ); Press Release, Sen. Orrin G. Hatch, supra note 18.
58 See Herbert Hovenkamp , The Federal Trade Commission and the Sherman Act , 62 Fla. L. Rev. 871 , 874 ( 2009 ) ; see also Malcolm B . Coate , Efficiencies in Merger Analysis: An Institutionalist View , 13 S. Ct . Econ. Rev. 189 , 191 ( 2005 ) (discussing anticompetitive effects in the context of neoclassical theory).
59 See Hovenkamp , supra note 58 , at 874.
60 See, e.g., Thomas A. Piraino , Jr. , A Proposed Antitrust Approach to Collaborations Among Competitors, 86 Iowa L. Rev . 1137 , 1181 ( 2001 ) (illustrating the role of price and output effects in the application of section 1).
61 See Press Release, Sen. Orrin G. Hatch, supra note 18.
62 See id . Such a scenario is not a mere hypothetical . In 2009 , two teams from non-BCSaffiliated conferences-the University of Utah and Boise State University-went undefeated and met the criteria for an invitation . See Emily Heil & Elizabeth Brotherton , No Holder-ing Back , Roll Call (D.C.), Dec. 9 , 2008 , http://www.rollcall.com/issues/54_63/- 30665-1.html. Only the University of Utah received a BCS invitation . Id.
63 Press Release, Sen. Orrin G. Hatch, supra note 18.
64 See id.
65 See id.
66 See Chad McEvoy , Predicting Fund Raising Revenues in NCAA Division I-A Intercollegiate Athletics , Sport J. , Winter 2005 , http://www.thesportjournal.org/article/predicting-fundraising -revenues-ncaa-division-i-intercollegiate-athletics.
67 See supra note 26 and accompanying text.
68 BCS Governance, BCSFootball.org, http://www.bcsfootball.org/news/story?id= 4809846 (last updated Jan. 20 , 2011 ).
69 See Ted Lewis , Gridiron Gridlock; Once Again, the Powers That Be in College Football Will Explore Ways to Improve the BCS System, Hoping to Eventually Crown a Champion That Every One Can Live With, Times-Picayune (New Orleans) , Jan. 5 , 2008 , at 24; see also House Energy & Commerce Committee Hearing, supra note 12 (statement of Craig Thompson, Comm'r of Mountain West Conference) (describing the BCS Presidential Oversight Committee as “the body that runs the BCS”).
70 See Press Release, Sen. Orrin G. Hatch, supra note 18.
72 See House Energy & Commerce Committee Hearing, supra note 12 (statement of Craig Thompson , Comm'r of Mountain West Conference).
73 See id.
74 See Press Release, Sen. Orrin G. Hatch, supra note 18.
75 See, e.g., The Rivals 100, rivals . com ( Jan. 14 , 2010 ), http://rivals.yahoo.com/ncaa/ football/recruiting/rankings/rank-2369 (ranking top high school prospects and identifying what school they will attend).
76 If true, economic consequences would follow. According to one study, top college football players can bring into their schools over $500,000 annually and premium athletesthose drafted into the NFL-can bring in over $1 million annually . See Robert Brown , Estimates of College Football Player Rents, 12 J. Sports Econ. (forthcoming 2011 ), available at http://jse.sagepub.com/content/early/2010/06/14/1527002510378333 ( using economic extrapolation to argue that the marginal revenue product derived from having top and premium college student-athletes far outstrips the expenses incurred in complying with NCAA scholarship restrictions ).
77 See Thomas C. Arthur , Farewell to the Sea of Doubt: Jettisoning the Constitutional Sherman Act, 74 Calif. L. Rev . 263 , 348 ( 1986 ) ; Stephanie M. Greene, Regulating the NCAA: Making the Calls Under the Sherman Antitrust Act and Title IX , 52 Me. L. Rev. 81 , 84 n. 22 ( 2000 ) (discussing the commercial requirement in the context of the NCAA) .
78 See supra note 16 and accompanying text.
79 See, e.g., Brookins v . Int'l Motor Contest Ass'n, 219 F.3d 849 , 853 - 55 ( 8th Cir . 2000 ) ; M & H Tire Co . v. Hoosier Racing Tire Corp., 733 F.2d 973 , 987 ( 1st Cir . 1984 ); Gunter Harz Sports, Inc . v. U.S. Tennis Ass'n, Inc ., 511 F. Supp . 1103 , 1113 - 21 , 1124 ( D. Neb . 1981 ).
80 139 F.3d 180 ( 3d Cir . 1998 ), vacated on other grounds by 525 U.S. 459 ( 1999 ).
81 Id. at 184-85.
82 See Marc Edelman , How to Curb Professional Sports' Bargaining Power Vis-À-Vis the American City, 2 Va . Sports & Ent . L.J. 280 , 291 ( 2003 ) (noting that scheduling is essential for league play ).
83 See Klor 's, Inc . v. Broadway-Hale Stores , Inc., 359 U.S. 207 , 213 n. 7 ( 1959 ) (stating that the Sherman Act is “aimed primarily at combinations having commercial objectives and is applied to only a very limited extent to organizations, like labor unions, which normally have other objectives”).
84 See, e.g., Goldfarb v . Va. State Bar , 421 U.S. 773 , 786 - 88 ( 1975 ) (stating that the solicitation and servicing of legal representation qualifies as commercial activity); see also Thomas Scully , Note, NCAA v. Board of Regents of the University of Oklahoma: The NCAA's Television Plan is Sacked by the Sherman Act , 34 Cath. U. L. Rev. 857 , 857 - 58 ( 1985 ) (discussing expansion of the Supreme Court's view of commercial activity).
85 See Tara Norgard , Note, How Charitable Is the Sherman Act?, 83 Minn. L. Rev. 1515 , 1523 - 24 ( 1999 ). But see John Vanderstar, Liability of Municipalities Under the Antitrust Laws: Litigation Strategies , 32 Cath. U. L. Rev. 395 , 397 - 98 (“ The Court has been reluctant to apply the antitrust laws to the conduct of those who are not engaged in commercial activities .”).
86 468 U.S. 85 ( 1984 ).
87 Id. at 111-12.
88 388 F.3d 955 ( 6th Cir . 2004 ).
89 Id. at 959.
90 See Lawrence A. Sullivan , The Viability of the Current Law on Horizontal Restraints , 75 Calif. L. Rev. 835 , 891 ( 1987 ) (noting the importance and implications of a judge's decision in determining the standard of review in antitrust cases).
91 See Arizona v. Maricopa Cnty. Med. Soc'y , 457 U.S. 332 , 351 ( 1982 ) ; see also State Oil Co . v. Khan, 522 U.S. 3 , 10 ( 1997 ) (noting that per se analysis is used to determine if a restraint shows a “predictable and pernicious anticompetitive effect”).
92 See Thomas Chen , Note, Authorized Generics: A Prescription for Hatch-Waxman Reform, 93 Va. L. Rev . 459 , 489 ( 2007 ). This disfavor relates to a general trend in antitrust scrutiny toward reasonableness analysis and away from per se findings . See Keith N. Hylton, Fee Shifting and Predictability of Law , 71 Chi.-Kent L. Rev . 427 , 458 ( 1995 ) ; Glen O. Robinson, Explaining Vertical Agreements: The Colgate Puzzle and Antitrust Method, 80 Va. L. Rev. 577 , 605 ( 1994 ) (discussing the history of the application of rule of reason and per se analyses).
93 See Thomas A. Piraino , Jr., Reconciling the Harvard and Chicago Schools: A New Antitrust Approach for the 21st Century , 82 Ind. L.J. 345 , 355 ( 2007 ).
94 See, e.g., In re Baby Food Antitrust Litig., 166 F.3d 112 , 118 ( 3d Cir . 1999 ) (holding that a price-fixing agreement is a per se violation of section 1).
95 See, e.g., Nw. Wholesale Stationers , Inc. v. Pac. Stationary & Printing Co., 472 U.S. 284 , 290 - 91 ( 1985 ) (stating that a group boycott is a per se violation of section 1).
96 Fee schedule agreements, however, have been subject to per se analysis . See , e.g., Maricopa Cnty. Med. Soc'y , 457 U.S. at 355- 57 ( using per se analysis to scrutinize a preferred provider organization's fee-scheduling agreement ).
97 See Edward D. Cavanagh , Detrebling Antitrust Damages: An Idea Whose Time Has Come?, 61 Tul. L. Rev . 777 , 825 - 29 ( 1987 ) (discussing how per se analysis advantages plaintiffs); Recent Case, Khan v . State Oil Co., 93 F.3d 1358 ( 7th Cir . 1996 ), 110 Harv. L. Rev. 523 , 527 ( 1996 ) (“[R]ule of reason analysis heavily favors defendants .”).
98 See Five Smiths , Inc. v. NFL , 788 F. Supp . 1042 , 1045 (D. Minn . 1992 ).
99 See Gordon H. Copland & Pamela E. Hepp , Government Antitrust Enforcement in the Health Care Markets: The Regulators Need an Update , 99 W. Va . L. Rev. 101 , 107 - 08 ( 1996 ).
100 See Michael A. McCann, Justice Sonia Sotomayor and the Relationship Between Leagues and Players: Insights and Implications, 42 Conn. L. Rev . 901 , 919 - 20 ( 2010 ) ; see , e.g., Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290 , 338 ( 2d Cir . 2008 ).
101 See Christopher L. Peterson , Predatory Structured Finance, 28 Cardozo L. Rev . 2185 , 2252 ( 2007 ).
102 See Piraino , supra note 60 , at 1173-74.
103 See Derek Devgun , Crossborder Joint Ventures: A Survey of International Antitrust Considerations, 21 Wm. Mitchell L. Rev . 681 , 690 - 91 ( 1996 ); F. Scott Kieff & Troy A. Paredes, Engineering a Deal: Toward a Private Ordering Solution to the Anticommons Problem , 48 B.C. L. Rev . 111 , 135 ( 2007 ) (noting the success of joint ventures under the rule of reason).
110 See United States v. E.I. Du Pont de Nemours & Co., 351 U.S. 377 , 393 - 95 ( 1956 ).
111 See Bd . of Regents of Univ. of Okla., 468 U.S. at 95 , 116 - 20 .
113 See, e.g., L.A. Mem'l Coliseum Comm'n v . NFL , 726 F.2d 1381 , 1393 ( 9th Cir . 1984 ) (reasoning that the type of audience attracted to watching NFL football games is unique and thus that there are “limited substitutes” for consumers of NFL games); see also Ethan Lock, The Scope of the Labor Exemption in Professional Sports, 1989 Duke L .J. 339 , 403 - 04 ( advocating that the unique qualities of NFL football games lends themselves to an absence of substitute products).
114 See Grinnell Corp ., 384 U.S. at 576 (discussing the presence of a national geographic market); see also Ilene Knable Gotts & Daniel E. Hemli, Just the Facts: The Role of Customer and Economic Evidence in M&A Analysis, 13 Geo . Mason L. Rev . 1217 , 1219 ( 2006 ) (furnishing insight on the configuration of geographic markets).
115 The BCS National Championship Game is now even broadcast nationally in 3-D. See Walt Belcher , John Tesh Shares Tips, Music with 'Daytime,' Tampa Trib., Dec. 8 , 2008 , at 2 (noting that Fox Sports broadcasts the game nationally in 3-D) .
116 See Thomas A. Piraino , Jr., Reconciling the Per Se and Rule of Reason Approaches to Antitrust Analysis, 64 S. Cal . L. Rev. 685 , 689 - 91 ( 1991 ).
117 See William M. Landes & Richard A. Posner, Market Power in Antitrust Cases, 94 Harv. L. Rev. 937 , 937 ( 1981 ). Proof of market power is not always required in rule of reason analysis, but often is . See Note, Sherman Act Invalidation of the NCAA Amateurism Rules , 105 Harv. L. Rev. 1299 , 1309 - 10 ( 1992 ).
118 See, e.g., Peter J. Howe , Role of Power Firms in N.E. Scrutinized, Bos. Globe, May 12 , 2001 , at A1 (discussing market power in the context of the energy industry ).
119 George A. Hay , Market Power in Antitrust, 60 Antitrust L.J. 807 , 808 ( 1992 ).
120 Nat'l Soc 'y of Prof'l Eng'rs v . United States , 435 U.S. 679 , 686 - 92 ( 1978 ) (describing the evolution of the rule of reason and explaining the rule's focus on the competitive significance of a restraint) . See generally Alan J. Meese, Price Theory, Competition, and the Rule of Reason , 2003 U. Ill . L. Rev. 77 ( applying the rule of reason to price variations among industries).
121 See, e.g., Kieff & Paredes, supra note 103 , at 135.
122 See id.
123 See Thomas (Tim) Greaney , Competition Policy and Organizational Fragmentation in Health Care, 71 U. Pitt . L. Rev. 217 , 225 ( 2009 ).
124 See Thomas A. Piraino , Jr., The Antitrust Analysis of Network Joint Ventures , 47 Hastings L.J. 5 , 32 ( 1995 ).
125 See Pruitt , supra note 37 , at 140.
126 See supra note 10 and accompanying text.
127 See Senate Judiciary Committee Hearing, supra note 14 (testimony of Barry J . Brett) (describing the advantages of a sixteen-team playoff system). The statement itself is available at http://judiciary.senate.gov/pdf/09-07-07BrettTestimony.pdf.
128 For a compelling case against college football playoffs, see Playoff Problem , http:// www.playoffproblem.com/ (last visited Feb. 20 , 2011 ). But see Senate Judiciary Committee Hearing, supra note 14 (testimony of Barry J . Brett) (claiming that disadvantages to a playoff format are exaggerated by BCS supporters) .
129 See supra note 12 and accompanying text.
130 House Energy & Commerce Committee Hearing, supra note 12 (statement of John D . Swofford, Comm'r of Atlantic Coast Conference) . The statement itself is available at http://democrats.energycommerce.house.gov/Press_111/20090501/testimony_swofford.pdf.
131 See Celia R. Taylor , Microcredit as Model: A Critique of State/NGO Relations, 29 Syracuse J . Int'l L . & Com . 303 , 315 ( 2002 ) (describing basic concepts of a bottom-up approach to law and policy ).
132 See Martin Manley, 5 Things Right with the BCS, upon further review ( Jan. 9 , 2009 , 5 :57 PM), http://uponfurtherreview.kansascity.com/?q=node/380; see also supra note 8 and accompanying text (noting aspects of BCS ranking that are not publicly revealed).
133 See Rob Oller , After 75 Years, Polls Still Stir Up Football Fans, Columbus Dispatch, Aug. 20 , 2010 , at 1C.
134 See, e.g., Kevin Modesti, BCS Poll Is as Good as Any in the Nation , L.A. Daily News , Dec. 11 , 2001 , at S1.
135 See Christopher S. Kelly , Note, Leegin Creative Leather Products, Inc. v. PSKS, Inc.: The Final Blow to the Use of Per Se Rules in Judging Vertical Restraints-Why the Court Got It Wrong , 28 N. Ill . U. L. Rev. 593 , 621 - 22 , 634 , 646 ( 2008 ) ; see also Joshua D. Wright, Overshot the Mark? A Simple Explanation of the Chicago School's Influence on Antitrust, 5 Competition Pol'y Int' l J. 189 , 199 - 205 ( 2009 ) (discussing the role of empirical studies in influencing antitrust policy).
136 See TicketCity Reveals the Top 10 Hottest College Bowl Games and Presents the 2009 Bowl Challenge: Bowl Prices Fluctuate as Fans Gamble Which Game Will Feature Their Favorite Team, Bus . Wire, Nov. 30 , 2009 (quoting Randy Cohen, CEO of TicketCity: “With the SEC Championship determining who will play in the BCS Championship, the average price for the BCS will increase depending on which team makes it .”).
141 15 U.S.C. § 2 ( 2006 ) ; see Grinnell Corp ., 384 U.S. at 570-71 (showing the importance of intentional behavior with Section 2 claims) .
142 See Mark Wiedmer , Obama Not Too Busy to Push His BCS Concerns, Chattanooga Times Free Press, Jan. 18 , 2009 , http://www.timesfreepress.com/news/2009/jan/18/obama- nottoo -busy-push-his-bcs-concerns/ (noting various politicians that have proposed legislation in response to the BCS) .
143 See Press Release, Sen. Orrin Hatch, supra note 18.
144 See Rogers , supra note 7 , at 299.
153 See Bowl Excess Revenue Expenses by Conference 2009-10, NCAA (Feb. 2 , 2010 ), http:// www.ncaa.org/wps/wcm/connect/public/ncaa/pdfs/postseason+football/bowl+excess+ revenue+expenses+by+conference+ 2009 + 10 .
154 For instance, revenue grew 4% and profitability increased by an impressive 6% from 2008-2009 to 2009-2010 . Id. Taking a slightly longer view, the NCAA's own literature reveals that revenues have grown approximately 31% and that profits have grown approximately 29% since 2002-2003 . Id.
155 See supra notes 30-31 and accompanying text.
156 See Thomas A. Rhoads & Shelby Gerking , Educational Contributions, Academic Quality and Athletic Success , 18 Contemp. Econ. Pol'y 248 , 248 - 57 ( 2000 ).
157 See id.
158 See id.
159 See Sarah M. Konsky , Comment, An Antitrust Challenge to the NCAA Transfer Rules , 70 U. Chi . L. Rev. 1581 , 1584 ( 2003 ).
160 See Tracee Hamilton , An Idea That Is Pure Madness, Wash. Post, Jan. 21 , 2010 , at D1.
161 See Jamie Herzlich , Jets Sale Ahead: AFC East Champs' Items Outperform Wild-Card Giants , Newsday (Long Island , N.Y.), Jan. 4 , 2003 , at A05 (discussing various levels of sales for NFL playoff games ).
162 See, e.g., Dan K. Thomasson , The BCS : Bunch of College Sellouts; Greed and Venality Have Come to Characterize the College Football Post-Season , Pittsburgh Post-Gazette, Jan. 6 , 2010 , at B7.
163 See Royston Greenwood & David Deephouse , Legitimacy Seen as Key: Firms Ignore This Strategy at Own Peril, Globe & Mail (Toronto), Dec. 26 , 2001 , at B7.
164 See John T. Jost & Orsolya Hunyady, Antecedents and Consequences of System-Justifying Ideologies, 14 Current Directions in Psychol . Sci. 260 , 261 ( 2005 ).
165 See Michael McCann , Jack Bauer and Growing Up Rich, Situationist, Jan. 28 , 2007 , http://thesituationist.wordpress.com/ 2007 /01/28/jack -bauer-and-growing-up-rich/. The “Horatio Alger” story is viewed by many as a myth . See, e.g., Martin J. McMahon , Jr. , The Matthew Effect and Federal Taxation , 45 B.C. L. Rev . 993 , 1010 - 12 ( 2004 ).
166 See Hubert Mizell , Good, But Could Be Better, St. Petersburg Times, Jan. 5 , 2000 , at 1X.
167 See Paul Doyle, On the Fly, Hartford Courant, Apr. 7 , 2010 , at C1 (mentioning TV ratings for the Duke-Butler game); Bob Wolfley , Is It Dome Sweet Dome?, Milwaukee J. Sentinel , Jan. 17 , 2010 , at C2 (mentioning TV ratings for the Alabama-Texas game ).
168 See Jon Weinbach , Football's Total Blitz on TV , L.A. Times , Sept. 25 , 2010 , at D1.
169 See Hamilton , supra note 160.
170 See Tony Barnhart , Is the BCS Supposed To Be Fair?, Atlanta J.-Const . (May 27, 2010 , 8 :34 AM), http://blogs.ajc.com/barnhart-college-football/ 2010 /05/27/is-the -bcs-supposedto-be-fair/.