“Antitrust law just doesn’t have a place for ‘fair.'”

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.


Filed under BCS/Playoffs, It's Just Bidness, Political Wankery

34 responses to ““Antitrust law just doesn’t have a place for ‘fair.'”

  1. Keese

    Has anyone made the argument that increased exposure from a playoff format could theoretically increase fan popularity of a mid major team and therefore increase revenue for that school. From that context, limiting access of those mid majors from higher competition could be construed as an anti trust violation?

    • I think Utah and TCU tell you what the real payoff is for increased postseason exposure.

      There’s still going to be a limit on how many asses a mid-major puts in the seats, though. And there aren’t that many colleges which build truly national followings that are reflected in ratings and attendance away from home.

      If Boise State became as attractive as Notre Dame, do you think the Broncos would remain in the Mountain West? Hell, no, and for the same reason as every other power school. They wouldn’t want to share with the weak sisters.

  2. If the mid-major anti-BCS forces want to know who’s keeping them out of the big-money games, they’re wasting their time with the BCS itself — they should be training their guns on the poll voters.

    After all, a mid-major conference champion gets an automatic bid if they’re ranked 12th or higher, or if they’re at least 16th and ranked higher than an AQ conference champion. The door is open, but if the voters think an undefeated, weak-schedule MWC champion is only the 14th best team in the country, while a 10-2 at-large team that’s had to run an SEC gauntlet is the 10th best, well . . . that’s the voters’ decision, not the BCS’s.

    By the same token, if a non-AQ team performed well enough to be ranked #2 in both polls at the end of the season, they’d get an invite to the national title game. But that hasn’t happened yet, and it’s because of the voters. Yeah, the BCS determined that TCU was only the third-best team in the country at the time the bowl bids were handed out, but only because the coaches and Harris Poll voters said so first.

    Keep in mind I’m playing devil’s advocate here, because I think the BCS is a pointless stew of numbers and we should just go back to the pre-Coalition era, split titles and all. But if you’re upset about mid-majors’ exclusion from the big-money games, the BCS is only part of the enemy.

    • Phocion

      “…a mid-major conference champion gets an automatic bid …”

      The problem lies in the fact that the bid that get is described by a singular article, “an automatic”. That there are multiple auto-bids reserved for certain other anointed conferences is the issue. And it is there where one could argue that “…would-be competitors collude(d) to erect high barriers to competitive entry…”

      The letter points out that if the only game the BCS organized was the championship game then it is likely that the problem/challange to the BCS would dissolve. I think that is a true statement.

  3. Keese

    Why not allow the non auto BCS conferences to shorten their regular season sticking to conference only games…allowing them to have their own playoff to determine 2 BCS tie in winners? Then using the auto BCS conference winners to make up the rest of the playoff format while keeping the BCS bowls in tact for the first round?

    • Because the Big Six don’t want that.

      The funny thing I took away from Schwarz’ article was there’s a simple path for them between what the BCS is now and what Schwarz is aiming for: disband the BCS, go back to the old free-for-all with the bowls and then play a title game after the bowl games are played, using the current rules for picking the title participants. Schwarz concedes the title game by itself isn’t anti-competitive. The threat to the regular season an expanded playoff poses goes away. And there’s still a one-game playoff, so the revenue doesn’t change.

      But, boy, would the mid-majors get screwed.

  4. Keese

    It would be a win win situation all the way around imo. You solve the competition issue for mid majors, you keep the AQ BCS conferences regular season important, the bowl system and pagentry stays the same etc. you solve the plus one problem for weak mid major teams but still allow them to have a shot ect

  5. Keese

    If a mid major playoff produced two tie in BCS teams.. you essentially (in the polls) get to the same result as what it is now…it would do away with the Big Six at large teams…but the difference in poll ranking would not be that drastic. AQ BCS conferences would just be greedy. Hence your anti trust issue

    • Except that no one (presuming the NCAA were to lift the prohibition against playing more than one D-1 postseason game) is stopping the mid-majors from running a separate playoff. What the mid-majors want under your scenario is the guaranteed right to a seat at the big boys’ table.

      • The other Doug

        The non-AQ schools need to suck it up and create their own playoff. Sure it would be like the NIT in basketball, but they could build it up by showcasing their teams. If the tournament becomes popular, then they can negotiate with the AQ conferences with some leverage.

        Right now they want all the access, exposure, and revenue with out fighting and clawing to get it.

        • 69Dawg

          Yea look what happened to the once great NIT. They were bought by the NCAA in order to get rid of them. Where was the DOJ when this happened?

  6. Keese

    Well something has to give…the legit mid majors at least deserve the opportunity. NCAA is going to get involved anyway, so why not give everyone what they want? The AQ conferences would have to be ok with this. It would solve the problems while preserving the current economics to a high degree

    • NCAA is going to get involved anyway, so why not give everyone what they want?

      LOL. Spoken by a man who doesn’t hand out checks to Big Six presidents.

      Believe me, if this were truly a win-win situation, it would have been adopted already.

    • NCAA is going to get involved anyway, so why not give everyone what they want?

      Because the Boise State’s of the world haven’t earned it ($$ speaking, that is). Why should schools like Southern Cal or Alabama or Oklahoma that have spent decades building up the brand of college football to what it is today be, to quote Hootie Johnson, forced at the point of a bayonet to share the television and advertising revenues equally with a school in a tiny television market with a stadium that seats less than 50K people?

      That’s like me opening some random hamburger shop in northwest Georgia where I’ve established that I make a pretty good hamburger over the last few years and all of a sudden I feel that I should be entitled to command the same advertising fees as a McDonald’s or a Wendy’s despite them being much more established national brands whereas I’m only marketable in this small section of northwest Georgia and have a pretty limited customer base (my apologies for the run-on there).

  7. Hogbody Spradlin

    The title of the post brings up one of my favorite mantras: fair is a subjective concept, like morality, and when ‘fair and moral’ are used to make policy you get wacko results. Of course I’m pissing in the wind.

    • Macallanlover

      “Wacko results”. That is what could be expected from any DOJ involvement if headed by Eric Holder. The guy is so corrupt/inept he could be a potential candidate for a position as Auburn Trustee, or NCAA selective enforcement officer. Sleaze is all around.

      • Hogbody Spradlin

        Eric Holder is a pretty mediocre tiresome cliche of a person, but the Democrats have no monopoly on bringing up fairness when it shouldn’t matter and actually distorts things.

        • Macallanlover

          I didn’t mention either party, it is true both have had their own share of incompetents over time. Sleazy and corrupt seem to prevail more now, and this guy is an example of someone incapable, and reluctant, to perform his basic duties. Not saying politics should get into CFB, but of all the times to think a DOJ could help, this is the very worst.

  8. Keese

    The big 6 commissioners are going to realize at some point that a compromise is necessary…its not just going to go away. This senario would appear to cause the least impact to the current economic structure. Not to mention the fans that want a playoff get a playoff, those favoring the regular season and bowls get to keep that as well.

    fwiw not all the conferences are used to getting at large teams in every year anyhow (Big East).

    • The big 6 commissioners are going to realize at some point that a compromise is necessary…

      Seriously, why? I see them just as likely to take their postseason ball and go home, if push comes to shove.

      I think you underestimate how much these new, enormous TV deals are impacting the decision making here.

      • Chadwick

        Correct. The comments floated by Delaney are probably what all the Big Six commissioners believe. They are not going to be forced into doing anything that dilutes their revenue streams. If they need to opt out, they will. Money talks to these guys, not Orrin Hatch, threats by the DOJ, or the AD at Utah. Delaney and his peers hold all the significant cards as THEY control the product. Everyone else is just vying for a piece of THEIR pie.

  9. Keese

    The best mid major teams like Boise make it into an at large BCS slot most years anyhow…how is that profit sharing any different? With a mid major playoff for BCS tie in…at least you know that the emerging teams have earned the right as opposed to debating by pollsters looking at the body of work.

  10. Keese

    Senator, you really think they would jeopardize their cash cow just to prevent a mid major from taking an at large slot in the current BCS format (which most years they are showing up anyhow)

  11. Keese

    So your taking the position of the regular season integrity?… for those teams eliminated from conference title games but still fighting for an at large BCS bid?

    Then again…instead of competing for at large BCS bid they compete for one of the other important non BCS bowls. If the BCS struture dissolved it goes back to this senario anyhow. The conference commissioners would never let that happen.

    • I’m not taking a position on “regular season integrity”. I’m just saying that’s where the money is right now.

      It’s highly unlikely the Big Six volunteer to share a penny more of their revenue with the mid-majors than what they do at present.

  12. Keese

    Well I’m about as big of a UGA and SEC fan out there…but the message is clear, the big six conferences want ultimate exclusivity. I understand the argument of those non auto BCS schools…and I agree, the current system is not fair to them. I hope this anti trust inquiry gains traction.

    • Fair to them in access to money, or in access to national title? Don’t see how you can blame BCS for the latter.

      • Phocion

        The BCS set up the formula by which the two entrants to the MNCG are chosen. Had they taken the position of not including the portion of that formula which is (most) susceptible to bias, the human polls, that statement might be defensible. Since they embrace those polls, they are culpable.

        • Not from an antitrust standpoint.

          • Phocion

            Arguments and debates about what is ‘fair’ have very little to do with statutes and laws and are rarely, if ever, taken into consideration when legal rulings are issued. (And it should stay that way lest we revert back to “an-eye-for-an-eye” type of justice.) For proof, look no further than your post Wednesday about Wall Street, the Fiesta Bowl, and their fines/punishments for recent misdeeds.

            Their arguement here could be that by knowingly using a biased or exclusionary component the BCS was complicit in that bias/exclusion.

  13. Keese

    Well it goes hand in hand . I’ve always liked the idea of a playoff structure using the current BCS bowls with conference champs. Now.. with the TV deals, the money to the AQ conferences becomes a factor…I still think you could make everything and everyone happy structuring a mid major playoff with BCS tie in (with or without a BCS playoff or plus one)

  14. Judgedawg

    Keese, you may like the idea of using the current bowls as playoff games but the bowls don’t want to do that, and I understand why. It’s similar to saying I like the idea of dropping by the Keese house at dinner time and inviting myself to his table. I like the idea but Keese doesn’t, so it will not happen.

  15. Keese

    You have a non AQ conf at large team making it in to BCS game most years anyhow…?! Where is this drastic revenue redistribution?