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College Bowl Games May Face Playoffs With Antitrust Enforcers

Posted  May 3, 2011

The antitrust controversy surrounding college football’s Bowl Championship Series (BCS) is heating up.

In the just the past two weeks, a group of law and economics professors asked the U.S. Department of Justice to commence an antitrust investigation of the BCS, and Utah’s attorney general vowed to bring an antitrust lawsuit.

The BCS has, in recent years, drawn antitrust scrutiny from colleges, attorneys, congressmen, and even President Obama himself, who all argue that the BCS unfairly excludes schools from the “disfavored” football conferences from the opportunity to compete in one of the BCS bowls (the Rose, Fiesta, Orange, and Sugar bowls) and the national championship game.

The critics also condemn the uneven distribution of the hundreds of millions of dollars of BCS revenue.  Most BCS critics believes that the current system stands in the way of a more egalitarian (and interesting) playoff system, similar to college basketball’s March Madness.

However, as explained by Gordon Schnell and David Scupp in Competition Law 360 and Sports Business Journal, the antitrust laws are not likely to provide a fix for the inherent inequities in the BCS.  As Schnell and Scupp explain, love it or hate it, the BCS probably does not result in any real consumer harm.  The relevant comparison is not what the world “could be” like without the BCS, but what the world “was” like before it.  And, when compared to the pre-BCS world of loose bowl affiliations and no national championship game, the BCS has likely enhanced the quality of the college football post-season by producing a national championship game between the two top ranked teams every year.

So, despite the Utah attorney general’s promise to bring action, don’t expect the antitrust laws to bring us a college football playoff anytime soon.

UPDATE:  The Department of Justice has sent a letter to the NCAA inquiring as to why there is no FBS (i.e., “Division I football”) playoff.  While the letter does not state that the DOJ is opening an investigation into the BCS, it states that it would be “helpful” to learn the NCAA’s views on the absence of a playoff system.

Tagged in: Antitrust Enforcement, Antitrust Litigation,

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