Thursday, July 1, 2010
Posted by D. Daniel Sokol
ABSTRACT: This Article analyzes the potential antitrust liability of the Bowl Championship Series (“BCS”), college football’s current system for selecting the participants of both the national championship game as well as the other most desirable post-season bowl games. The BCS has recently been the subject of increasing attack from both politicians and law enforcement officials, who allege that the system constitutes an illegal restraint of trade due to its preferential treatment of universities from certain traditionally stronger conferences, at the expense of teams from other, historically less competitive conferences. Meanwhile, the academic literature considering the antitrust status of the BCS is mixed, with most recent commentaries concluding that the BCS alleviated any antitrust concerns by revising its selection procedures in 2004.
Contrary to these recent scholarly analyses, this Article argues that the BCS remains vulnerable to antitrust attack on several grounds. First, the BCS can be attacked as an illicit group boycott, insofar as it distributes revenue unequally without justification, to the detriment of universities from the disfavored conferences. Second, the BCS can be attacked as an illegal price fixing scheme, due to the fact that it enables formerly independent, competing entities to collectively determine the amount of revenue to be distributed to BCS participants. Finally, however, the BCS appears less susceptible to a claim of illegal tying, despite its collective marketing of the television broadcast rights for the BCS bowl games. Therefore, although the outcome of any antitrust trial is notoriously difficult to predict, this Article concludes that the BCS remains quite vulnerable to antitrust attack.