[Note to commenters: it would be nice if everyone could refrain from partisan comments related to the two parties and stick to the merits of the post. Of course, comments about the political class in general are more than welcome.]
Having pondered the news that the Department of Justice has informed Senator Hatch that it will consider his request to investigate the BCS for a potential antitrust violation, I wanted to add a few specific thoughts on where this might be headed. Let’s start with the contents of the letter:
- The letter itself. As Kyle notes, this wasn’t exactly the most sternly worded piece of correspondence. All the administration committed itself to in the legal sphere was to entertain the possibility of opening an investigation into whether the BCS violates the law. To paraphrase from a certain movie, the President has put the BCS on double public probation, at most. Combine that rather punchless threat with the shopping list of other options mentioned in the letter – none of which are within the purview of the DOJ – and there isn’t much there there in terms of a looming legal threat. That being said, any letter which expresses Presidential interest in a playoff can’t be blown off entirely by the conferences and the bowls. It’s a signal and it will generate responses from the various players, which I suspect is what Obama is really after here.
- The other governmental options. Two possibilities mentioned in the DOJ letter besides the antitrust threat are asking a governmental or non-governmental commission to review the costs, benefits and feasibility of a playoff system, and legislative efforts aimed at prompting a switch to a playoff system. Neither have much teeth. Commissions are where proposals go to die and to this point, outside of a few folks like Barton and Hatch, there hasn’t been much stomach in Congress for going after the BCS.
- The NCAA. Matt Hinton thinks that the other suggestion in the letter, to encourage the NCAA to take over management of the D-1 postseason, is the most promising course of action, but even he acknowledges that there’s the problem of why the AQ-conferences would consent to ceding control over to the NCAA to overcome. After all, it’s the conferences that have the track record of beating the NCAA in an antitrust case. The reason they would risk turning the clock back isn’t apparent. It’s not as if the NCAA has reformed its anti-competitive ways either, which makes the idea of using the NCAA as a vehicle for avoiding an antitrust suit illogical, even by Washington standards.
So where do things go from here? In order of probability, from least likely to most likely, here’s what I think:
- Antitrust litigation. It’ll be expensive, messy and awkward, in that I still don’t see valid grounds for an antitrust claim – which, remember, at its heart is about economic damages, not about “proving it on the field”. The other question to ask is if the BCS violates antitrust law, how does March Madness not do so? Along those lines, think about what the bowls might do in the face of a threat for the NCAA to convert the football postseason to a playoff format. There’s your real antitrust case. I think the lack of commitment in the DOJ letter is a clear indication that the administration would much prefer for a resolution to come in a different arena.
- Legislative action. Well, there are already a few clowns showboating here, so the question is whether Congress as a whole is prepared to expend serious political capital on reforming the BCS. That’s a tough call, for two reasons. First, I suspect that Congress would prefer for Obama to do the heavy lifting here, particularly since he’s the one who made the public declaration in support of a playoff, and the DOJ letter is a pretty clear indication that that’s not in the cards right now. Second, it’s not as if there’s monolithic support in Congress for Hatch’s side of the issue. Especially when it gets down to money, you can expect a pitched fight between representatives from the “have” states versus the “have-not” states.
- Voluntary action. I do expect something to happen on this front, if for no other reason than as a gesture from the BCS to take the political heat off by throwing a bone to Obama and Hatch. The problem is that the most likely option – the “plus one” – does almost nothing to address the complaints about the distribution of money. Disbanding the BCS and returning to the old system is another possibility and while it eliminates the threat of antitrust litigation, it’s also the option that’s likely to enrage the most and may ultimately provide the spark to force government intervention. A third option (and my preference), to reshape D-1 into an eighty-school power division with a playoff format, would call Obama’s and Hatch’s bluff most extensively, but would result in putting a third of the current D-1 schools into a full blown panic. Call that one the nuclear option, if you will. My best guess is that the BCS trots out the plus-one and sees how things fare from there.
- The wild card. I don’t know where to place this on the probability scale, but it seems to me that if the feds are serious about making a change, they need to offer a big carrot along with any stick. And they have a huge one that would be very attractive to both the NCAA and the schools: antitrust exemption. Give the schools free rein on things like coaches’ salaries (in all sports), the ability to eliminate the threat of player compensation once and for all and the elimination of a threat from the bowls when a full blown football playoff is instituted, and you’ve got something they can sink their collective teeth into. The irony of settling a debate over fair competition on the field by offering a less competitive environment in the world of college sports isn’t lost on me. (And I wonder how the coaches who are currently in favor of a D-1 playoff would feel about it if the price included a cap on their salaries.)