This column by one of the drafters of the letter sent to the U.S. Department of Justice requesting an antitrust investigation into college football’s Bowl Championship Series makes worthwhile reading, not because I agree with everything in it, but because it does a very clear job of defining the limits of what an antitrust claim against the BCS can accomplish.
He starts with what I’ve always thought was a most obvious point: the title game isn’t anti-competitive. As Schwarz puts it,
… (t)he BCS creates a postseason game (which it calls a championship) valued by consumers. You may hate the BCS, but having two good teams actually play for the championship is an improvement over the old days of an elected champion. If that were all the BCS did, it would be the (economically) pro-competitive act of legitimate joint venture. End of story.
The flaw he sees in the BCS is with the rest of its games and how access to them is controlled.
… the BCS conferences, through their control over the FBS, all agree that if any four teams choose to join a playoff system, the other 116 teams in FBS will refuse to play against them indefinitely. This is a collective boycott, and it’s rarely legal. But it is BCS/NCAA policy, enforced with specific bylaws that limit FBS teams to one postseason game and that prohibit the other schools from playing against schools that violate this rule, even in sports other than football. The threat of ostracism by all of college football makes it impossible for a rival playoff, however profitable and pro-consumer, to emerge.
But here’s where he acknowledges the tricky part. Opening up the postseason to more competition doesn’t guarantee the mid-majors anything. That’s because competition in and of itself doesn’t equal fairness.
… What I haven’t said is that it’s not fair that Utah, Boise State or TCU haven’t been invited to the BCS Championship Game, or that it’s harder for those teams to get into the other BCS bowls. Antitrust law just doesn’t have a place for “fair.” Instead, we focus on whether conduct is pro- or anti-competitive. When would-be competitors collude to erect high barriers to competitive entry, consumers and the country as a whole suffer. A competitive market would treat the TCUs of the world more fairly, but a fairer deal for TCU is in some sense a side effect of economic competition. The DOJ is not going to step in to enforce fairness.
That’s the part that the fans cheering on Shurtleff and Hatch haven’t absorbed yet. Economic competition and competitive fairness are two different animals. I suspect most fans would describe the NCAA’s basketball tournament as competitively fair in format, but what Schwarz describes as red flags raised by the BCS would apply to the NCAA and March Madness in spades. The problem for fans is that antitrust law isn’t a precise tool for fashioning an attractive postseason. That’s why the most Schwarz can promise is a “side effect”.
Besides that, there’s the inherent problem with trying to apply antitrust concepts to a sports league which by its very nature has to include some non-competitive aspects in how it’s structured to present a product to fans. That’s why I have a hard time grasping the distinction he attempts to make between the obvious but necessary collusion of the NFL in fashioning a regular season with that of the BCS fashioning a postseason. So as a result his conclusion strikes me as a little unrealistic.
… There are simpler, more competitive ways to ensure that the Rose Bowl and others would release the two top teams to the BCS. By doing this, the DOJ would make quality teams available to a playoff and prevent the BCS from locking up all potential rival champions. This would allow an entrepreneur such as Mark Cuban, a network such as ESPN, or the NCAA itself to develop a playoff in competition with the BCS.
Over the long haul, has any other organized sport successfully maintained postseasons in competition with each other? The story over and over with such situations is that the competitors merge or the stronger eventually shuts down the weaker.
Read it all and see what you think.
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