Saturday, April 23, 2011

Utah AG Announces He Intends to File an Antitrust Suit Against the BCS

USA Today reported on Wednesday that Utah Attorney General Mark Shurtleff intends to file a federal antitrust suit against the Bowl Championship Series within "the next couple of months." Shurtleff reportedly told the paper that the attorneys general of at least two other, unnamed states would join him in the suit. The story also reports that Shurtleff stated the U.S. Department of Justice has indicated it would consider following on with its own formal investigation should the state AGs take the lead by filing a suit. Shurtleff is seeking to enlist the help of an antitrust law firm to assist with the case.

This is not the first time that Shurtleff has spoken out against the BCS. A vocal critic of the BCS dating as far back as 2003, Shurtleff announced that he was formally investigating a potential antitrust claim against the BCS in 2009. Meanwhile, Shurtleff stated last October that his office had finished a draft complaint for the case. It will be interesting to see if Shurtleff follows through on this latest threat, or if he is just trying to increase the pressure on the BCS heading into its annual meeting next week in New Orleans. Given Shurtleff's previous stated desire for the U.S. Department of Justice to take the lead on an antitrust suit against the BCS, this latest announcement may also provide an indication that the federal government is unwilling to initiate a suit itself.

While the merits of such a suit can, of course, be debated (see here and here), ultimately I'd be surprised if Shurtleff's suit ever proceeded all the way to trial. There is little incentive for the BCS conferences to spend millions of dollars (and risk treble damages) defending a system that generates hundreds of millions of dollars less per year than would a playoff system.

Meanwhile, although BCS officials have previously threatened to return to the pre-Bowl Alliance post-season model should the BCS system be challenged legally, this threat rings hollow for several reasons. First, the BCS conference schools would be leaving too much money on the table -- money they have grown to depend on during the lifespan of the BCS -- to ever seriously consider a return to the old system. Second, as Sports Illustrated's Andy Staples notes, even if college football initially did go back to the pre-Bowl Alliance days, several of the current BCS conferences (in particular the Big East and ACC) would likely fare much worse than they would under a playoff system. Therefore, even if the SEC, Big 10, Pac 12, and Big 12 were all content to return to the old system, the ACC and Big East would likely join with the current non-BCS schools to give the "have-nots" a significant majority within the Football Bowl Subdivision, dramatically increasing the pressure on the NCAA to finally implement a playoff system.

Therefore, although an antitrust suit against the BCS is itself unlikely to directly lead to a court order mandating that the NCAA adopt a playoff system, I strongly suspect that a playoff system would ultimately result should AG Shurtleff files suit. It simply doesn't make sense for the BCS conferences to expend the resources necessary to defend the current system, and in lieu of the current arrangement, a playoff system is the most practical option.

Update #1: A new report out states that AG Shurtleff will be meeting with officials from the U.S. Justice Department this week, so my assumption above that the federal government may be unwilling to be involved in the case might be premature.

Update #2:
AG Shurtleff discussed his decision to file suit against the BCS with a local radio station yesterday. The interview is available here.