Sniffing the gauntlet: gaming out Obama’s BCS letter

[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:

  1. 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.
  2. 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.
  3. 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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.)


Filed under BCS/Playoffs, Political Wankery, The NCAA

13 responses to “Sniffing the gauntlet: gaming out Obama’s BCS letter

  1. Hogbody Spradlin

    Normally, I would put chances of governmental action on an issue like this at about 1 in 6. President Whomever gets his points with the playoff vote, Senator Windbag proclaims they’re going to get to the bottom if it, and it disappears.

    I’m afraid there will be action on this issue. Either the government will regulate or the government will force something by threat of regulation. That’s too bad because there is still deep in this country a sentiment, a correct sentiment, that men and institutions are free to conduct their affairs as they choose.

    I feel there will be action because unlike most issues, controversy about college football’s champion, be it the worthiness or the division of the spoils, has been one of the most enduring and enjoyable arguments in post World War II America. Controversies like this one, that involve already regulated (charitable) institutions, lend themselves to the ‘helping hand’ of government. Sooner or later there will be a misstep that makes government deem itself indispensable.


  2. Scorpio Jones, III

    We could certainly slow the aging process down if it had to work its way through Congress.
    – Will Rogers


  3. Kuma

    One interesting thing to note here is that this letter came from Ronald Weich, who is Assistant AG for Legislative Affairs. It is entirely possible that he’s the guy whom the DOJ tapped to write this letter because Hatch has communicated with him in the past, or because the Leg. Affairs guy is usually the person who deals with Congressional inquiries.

    It strikes me, though, that if this were really going to have legs, the person writing the letter would not be Weich, but rather Christine Varney, the Assistant AG of the DOJ Antitrust Division. She’s the one whose shop at DOJ would conduct any antitrust investigation of the BCS. Because Weich is writing the letter, this strikes me as sort of an effort to placate a pissed-off Senator.


  4. Normaltown Mike

    Politics = Hollywood for ugly people


  5. Rum-Dawg Millionaire

    “We’re Washington! We’re going to get involved whether you want us to or not!!! Ain’t America great?”


  6. BeerMoney

    Keep in mind that the DOJ just approved the Ticketmaster/Live nation merger last week. If there ever was a company who would violate anti-trust laws, it is this one. You can thank them for what is about to happen with soaring face prices, even more ridiculous fees, and even more restrictions put on tickets so that you’re completely pigeonholed as a consumer. If they ar eokay with that going through, then they ar eprobably okay with anything. Despite what our current administration said during their campaign, it’s still business as usual in Washington. Who ever is stuffing the most pockets will get their way.


    • Mayor of Dawgtown

      How about the Sirius/XM Radio merger? If they’ll approve that how can the DOJ with a straight face say anything violates the anti-trust laws?


  7. Phocion

    Come on now…they’re the government and they are here to help!!!


  8. I think your assessment is pretty spot-on, Senator. If the DOJ thought it had a legitimate anti-trust case, the wording in the letter would have been more stern. Most people forget that the BCS was drafted by a bunch of anti-trust lawyers and is structured to avoid that type of scrutiny.

    If anything, the pressure coming down from top will cause the conferences to meet halfway and make a change. I highly doubt this gets anywhere if the DOJ decides to pursue anti-trust litigation, however.


  9. The Realist

    Mountain West’s spot as an automatic qualifier is right around the corner. As soon as Boise State dumps it’s WACky brethren, this whole mess will blow over with little to nothing changing… except we won’t likely see two teams like TCU & Boise State both get invited to the party again.

    There still won’t be a playoff.


    • Phocion

      It would be unlikely that just Boise State goes. Fresno State and Nevada are also out there and you might as well take the three of them together and make the MWC a 12 team conference.

      LaTech slides into the SunBelt making that a 10 team conference…

      Which leaves the West Coasters (Hawaii, San Jose, New Mexico State, Idaho, and Utah State) no limbo. And there is no easy solution for them.

      If that happens, the MWC becomes a conference that is better than the Big East and the ACC right away. So, yes, you eliminate two MWC teams in the BCS most years, but has the ACC accomplished that feat yet?


  10. Dog in TN

    The government has no business in business. The government can’t run it’s current programs, how in the heck will they get college football working to anyone’s satisfaction? They will not!

    What a joke, just to get votes.