Saturday, June 18, 2011

Bullish on BCS?: Stripping USC and Potential Antitrust Implications for the BCS

As expected, the BCS chose to vacate USC’s 2004 national title last Monday. The decision was merely a formality because the BCS was only waiting for the NCAA to deny USC’s final appeal. From a legal perspective, however, the interesting consideration is why the BCS even cares about the NCAA’s ruling in the first place.

The BCS, which has been debated vigorously on this blog, is a virtual legal fiction with no organizational contracts at all. It has no formal affiliation with the NCAA whatsoever. Yet, BCS executive director Bill Hancock said in reference to the BCS championship games, “One of the best ways of ensuring they remain so is for us to foster full compliance with NCAA rules.” Presumably, there is nothing that mandates the BCS to take away a title for NCAA rules violations. In fact, the Associated Press did not to strip USC of its title. Theoretically, the BCS could operate completely outside the scope of NCAA regulations. Vacating USC’s appearances simply maintained the integrity of the system. With a potential antitrust suit lurking, the obvious co-dependence between the BCS and the NCAA could certainly play a prominent role in the case.

As attenuated as it might seem, this action could be potential ammunition for BCS opponents to suggest that the BCS is in fact not the least restrictive alternative system under rule of reason analysis of Section One of the Sherman Act. Hancock’s quotes seem to manifest an uneasiness that the BCS could in fact lose its right to stage the games should it fail to comply with NCAA rules. Perhaps Hancock realizes that the system is now in a precarious position and that viable less restrictive alternatives exist (e.g. the old bowl system, an NCAA mandated playoff, or another independently run postseason tournament). It could be that the BCS stripped USC of its title in order appease the NCAA and preserve its restrictive system.

Alternatively, the BCS may try to mitigate its culpability by portraying the NCAA as an equally complicit co-conspirator. The fact that the BCS is concerned with running its system in accordance with the NCAA suggests the presence of an unspoken agreement between the parties to maintain the current system. If the BCS did not require NCAA compliance, the NCAA would certainly step in and create its own postseason product. It seems, on the surface at least, that the NCAA has a “don’t ask don’t tell” type of policy in regard to the BCS, so long as it requires its member schools to remain in compliance. Despite NCAA President Mark Emmert’s letter to Assistant Attorney General Christine Varney, the NCAA may not be able to wash its hands of responsibility should a suit be filed.

Ultimately, the USC ruling may have little bearing on any potential suit, and certainly both sides will advance stronger arguments than this, but it certainly raises questions as to the veritable relationship between the BCS and the NCAA. Some conspiracy theorists argue that the NCAA actually plays a role in BCS operations? If so, what is that role? Will it matter if the Government files suit?

Hat tip to law clerk, Brian Konkel, for his work on this piece.