Things I didn’t learn in law school.

I’ve read this bit by ESPN Legal Analyst Lester Munson three times and I still can’t figure out his argument.

“The Bowl Championship Series obviously is a monopoly. It has total control over the market for a college football championship. As a monopoly, it is vunerable, very vunerable (sic) to this kind of anti-trust attack. If somebody, somewhere were to file the lawsuit, it would be an easy win and it would be the end of the Bowl Championship Series.”

First off, the BCS doesn’t have total control.  There’s nothing stopping a bunch of schools from running out there right now and starting a new association with its own postseason and championship.  Nothing.

But here’s what I really don’t understand.  Let’s say for the sake of argument that he’s right and the BCS has that control.  How is that different from any other sport?  Major League Baseball controls that sport’s championship through the World Series, the NFL does it with the Super Bowl, et cetera, et cetera.  Seriously, what am I missing here?

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32 Comments

Filed under Media Punditry/Foibles, Political Wankery

32 responses to “Things I didn’t learn in law school.

  1. Castleberry

    Right – see – so how you fix it is to handover monopoly control to the NCAA. No wait. Yeah. Get ready for December Madness. 6-6 Georgia is squarely on the bubble… and so on.

  2. That’s not all. The entity that prevents football teams from participating in non-bowl postseason events is the NCAA, which requires schools to only attend licensed events. The NCAA is not now and never has been a party to the BCS contracts.

  3. Justin

    Don’t the pro sports have a specific exemption from anti-trust laws granted by Congress?

    • Baseball has one it received in a Supreme Court case.

    • GShock

      Exactly – the pro sports leagues’ one major fear is having an anti-trust case go against their interests. The NBA is watching the current legal proceedings between the NFL and the Player’s Association closely because they are worried about the implications.

      The way the government thinks about monopolies isn’t based on some specific set of rules but rather whether an organization is large enough and powerful enough to eliminate current competition and construct significant or impossible barriers to entry. I’m thinking specifically of the Bell & Baby Bells split up and other cases. Now clearly, certain companies are allowed to have virtual monopolies or have some anti-trust exemptions, but those protections don’t necessarily guarantee future policy won’t shift against their interests.

      With the right judge and right argument, I think you could clearly make the case that this is very much a monopoly or virtual monopoly and that all of the major professional leagues also fit that description.

      • Milton Friedman

        OK, Of course they are oligarchies or monopolies within their league. That is the nature of a “league.”

        You have defined what it “is.” But, that in and of itself doesn’t make it illegal, anti-competitive or bad for the consumer. Monopolies are NOT inherently illegal. (They can be, of course, but they they are not guaranteed to be. That would depend on a myriad of factors involved, market share not being even the most telling number.)

  4. Stoopnagle

    I’m not a lawyer. But…

    What standing do non-football playing schools like Smith College and Chicago have to advocate for an investigation? Why do they care? I can only think of one reason which is that if the BCS is dissolved and FBS post-season is completely controlled by the NCAA, then non-BCS members may benefit by a redistribution of revenues across the entire spectrum of NCAA divisions. This is why any Georgia fan or supporter should not want a playoff. Inevitably, revenue will be shared across all schools (not just our peers in the BCS leagues) which means less money for UGA.

    Yes, there are ways this could be avoided, but the probability of a playoff adopting a wider revenue sharing plan than the current favorable arrangement (from the UGA perspective) is pretty high. (Yes, that’s like my opinion, man).

    Good luck to these guys. Let’s hope the Justice Department realizes it has bigger fish to fry.

  5. GShock

    First off, the BCS doesn’t have total control. There’s nothing stopping a bunch of schools from running out there right now and starting a new association with its own postseason and championship. Nothing

    I would say the *significant costs* related to setting up another system are relevant here. Think about the following:

    Venue: Where would they play the games? Most of the major stadiums around the country are already tied through legal contracts to host bowls under the current system. I will obviously concede that the schools could play the games at home stadiums

    TV: Would it cost nothing to get a series of networks or ESPN on board with a new system? Most are already tied into agreements with the BCS format as is.

    NCAA: I can’t speak on this issue, but it’s clear that this system would have to operate under NCAA rules in terms of student eligibility and other issues. I would think this would be another significant barrier to setting up another system.

    There are numerous other issues, all of which I think detail barriers to entry that do in fact prevent your other system from being set up. They may not be legal barriers, but it doesn’t mean they are preventing competition.

    • GShock

      Last sentence should read “aren’t”

    • I’m not sure I’m following you either. Are you arguing that if tomorrow the Big Six walked away from the NCAA and started their own association, they’d have serious startup problems?

      • Go Dawgs!

        I think he’s actually referring to the non-BCS mid-major programs trying to leave and form their own organization with its own postseason.

        • From an antitrust standpoint, the barriers to entry aren’t that different.

          From a marketability standpoint, of course, they are.

          • Puffdawg

            Exactly. I want to start up a brewery. I can’t though, and not because Budweiser has a monopoly on beer production. I can’t because it’s too damn expensive to start one.

            Also, the point about soliciting a TV sponsor is moot. (a) they could find a partner not named ABC or ESPN and (b) while the BCS bowls can’t air their games on other networks due to the contract, ESPN et al are not limited to what events they can broadcast. I would suspect they could broadcast the BCS bowls AND the newly created Mini Bowl without breaching BCS contract.

            • Exactly. I want to start up a brewery. I can’t though, and not because Budweiser has a monopoly on beer production. I can’t because it’s too damn expensive to start one.

              Not sure if you saw the documentary “Beer Wars” or not, but while inBev may not actually be a monopoly, some of their practices to prevent the little guys from getting a foothold in the marketplace border on being a hindrance to competition.

              I do like your analogy. However, saying it’s too damn expensive lends credence to the thought that inBev has in fact created a barrier to competition. A better way of stating that would be that “I want to start a brewery, but I’m not willing to take out a loan because it’s too damn expensive.” That basically was my argument yesterday that the Boises of the word could start a new championship format, but they’re unwilling to lay the ground costs and are content with riding the coattails of the more established powers to paydays that are more guaranteed.

              • Puffdawg

                I thought the “but I’m not willing to take out a loan” part was understood. But, you caught my drift. There is nothing stopping me other than fear of the unknown. My cubicle is pretty comfy. :)

                I’ve heard about the Beer Wars doc but I haven’t seen it yet.

  6. brewdawg

    Although the upshot from the American Needle v. NFL case isn’t clear yet, the SCOTUS said that the NFL is within the scope of the Sherman Act because the league, although made up of 32 separate entities, acts in a “concerted” fashion. The 11 FBS conferences, acting together to form the BCS format, could be viewed in the same way. Something like granting automatic access to the “big six” because of “a four-year evaluation covering the regular seasons of 2004, 2005, 2006 and 2007,” (bcsfootball.org) could be seen as a contract or conspiracy in restraint of trade insofar as it effectively bars the other five conferences from competing in those high revenue bowl games.

    It’s by no means a clear-cut example of a monopoly in violation of the Sherman Act but you can make an argument.

    • Big leap from your reasoning to “very vulnerable” and “easy win”, though.

      • brewdawg

        No doubt… I think some people (WWL’s “legal analysts” included) see “single entity” and “big money” and assume a monopoly exists. That line of reasoning really misses the issues, which are whether the 11 FBS conferences form a single entity for the purpose of the Sherman Act, or if the BCS is a single entity, and whether what the BCS is doing really is a contract in restraint of trade and so on and so forth. I think the American Needle case on remand should give some clues as to the answers. But we should also keep in mind that the case deals with professional, not “amateur,” sports and also is an issue over “licensing” of apparel and might not really have that much relevance.

        • Not to mention that given the context under which the current BCS was structured, I’m sure the powers that be consulted with some very high powered antitrust attorneys about how to arrange things to pass muster in case of a future challenge.

          That’s not to say there are any guarantees here, just that the BCS deal was more carefully structured than LM’s reasoning appears to be.

  7. fuelk2

    Remember, this is the same guy (Munson) who claims that Barry Bonds’ legal team went 0 for 4 in his trial. Let’s see, guy who is clearly guilty as hell will get no jail time…..I think there’s a win somewhere in there.

    • DawgPhan

      nothing to do with footballs but I was wondering if some of the legal eagle on here could break down what happened with Bonds. It seems to me that all I every heard about was how awesome the feds prosecutors are and they like totally never lose. And here they are in a slam dunk everyone knows this guy is and was a liar and they get 4 charges dropped and a conviction on the least of the charges…and obstruction charges has shades of “depends on the definition of ‘is’ “.

      • Mayor of Dawgtown

        Expect the judge to give Bonds jail time for the obstruction charge for which he was found guilty. If that happens the US attorney probably will not retry the charges where the jury was deadlocked. If the judge just gives Bonds a slap on the wrist look for a retrial on the perjury charge where the jury was deadlocked 11-1 for conviction.

    • Dawgaholic

      Exactly, anytime a jury does not convict your client on a count – you won. While a mistrial may be only a temporary win, it is a win for now and the state has to take it away – which will not likely happen here.

      Munson seems to be making statements to get attention and not to espouse sound legal knowledge.

  8. TennesseeDawg

    Absolutely nothing to stop anyone from creating their own separate championship game and giving out a trophy if they want, the major point is the money the BCS brings in. Really has nothing to do with being given a shot at a championship.

  9. Biggus Rickus

    What is the “market for a football national championship?” A championship is not a good you can purchase…unless you’re Auburn.

  10. Lester Muson

    HERP DERP ANYTHING BUT A PLAYOFF IS ILEGUL! IT’S IN THE CONSTITUSHON!

  11. Dog in Fla

    Maybe all Lester did was take this, “[t]he BCS remains quite vulnerable to antitrust attack” from this

    http://lawprofessors.typepad.com/antitrustprof_blog/2010/07/antitrust-the-bowl-championship-series-.html

    and change it into this:

    “The Bowl Championship Series…is vulnerable, very vulnerable”?

    And he heard it through the grapevine from Mark Shurtleff and the Deseret News.

  12. 69Dawg

    The ultimate axe hanging over the heads of the NonAq’s is that if the BCS goes away the bowls will just revert back to the age old system and the NonAQ’s will be screwed totally. BSU had to invent a bowl game just to get to play in one. There will be no BCS Champion just the old AP USA Today Coaches polls. Be careful what you wish for.

    • Sefdawg

      Agreed. Am I missing the part where no more BCS automatically equals playoff? I would think Schools would much sooner go back to the old bowl system than a new playoff.

    • mdr

      Exactly. Even if you can dismantle the BCS in a court of law, there is nothing that anyone can do to force the university presidents and conference commissioners to start a playoff.

      • NCT

        Yep yep. And the kind folks down in New Orleans (and Miami, Pasadena, etc.) will go back to the days when their ability to extend invitations to teams was unfettered. They can base their match-ups on what they think will draw the most money.

        I think the current BCS conference members and presidents would prefer to take their chances on whether the big bowl committees will invite a member of their own conference (with the money shared among members) versus Central Michigan. Or Hawai’i.

  13. Mayor of Dawgtown

    Tweak the system. Remove the AQ rule (the top conferences are going to have their teams in the biggest bowls anyway) and move to the “Plus-One Game” format which satifies 90% of the complaints about there not being a true “playoff.”