BCS Doubted White House Would Challenge Its Legality
WASHINGTON (AP) — The head of the Bowl Championship Series told college and university presidents that the Obama administration was unlikely to challenge the legality of its selection process — and argued that even if the system were to be found illegal, so would a playoff.
Bill Hancock, the BCS executive director, made the assurance in a Feb. 4, 2010, memo to the group's presidential oversight committee after the Obama administration said it was considering several steps to review the legality of the BCS. The Associated Press obtained a copy of the memo from a state open records request filed with Western Kentucky University, whose president, Gary Ransdell, serves on the oversight committee.
Hancock's memo offers some insight into the thinking of those who run the top tier of college football's postseason and are charged with setting up a No. 1 vs. No. 2 national title game. He wrote it in response to a Jan. 29, 2010, letter the Justice Department sent to Sen. Orrin Hatch, a Utah Republican and BCS critic who had asked for a DOJ investigation to determine if the BCS violated antitrust laws.
Assistant Attorney General Ronald Weich told Hatch in that letter the department was reviewing his request and other materials to determine whether to open such an investigation, and was considering other options such as asking the Federal Trade Commission to review the legality of the BCS under consumer protection laws.
But Hancock told the school presidents that a government investigation was unlikely.
"Given all the other issues facing our country, we find it doubtful that the White House is seriously considering contemplating action on the series of items outlined in the letter," wrote Hancock, who said he had discussed the DOJ letter with BCS advisers in Washington.
The Justice Department declined to comment on the BCS memo.
The government's interest in the BCS has continued this year. In May, the DOJ's top antitrust official sent a letter to NCAA President Mark Emmert asking why there was no playoff at college football's highest level, saying that "serious questions continue to arise suggesting the current Bowl Championship Series system may not be conducted consistent with the competition principles expressed in the federal antitrust laws."
Two days later, the BCS pushed back, issuing a news release titled, "WHAT THEY'RE SAYING: About Government Intervention in College Football." It included a sampling of commentators criticizing the idea of the Justice Department poking around on the issue.
In an email obtained by the AP under a Freedom of Information Act request with Northern Illinois University, the school's president, John Peters, forwarded the news release to a colleague with the note, "Take that DOJ." Peters is a member of the presidential oversight committee.
Emmert responded to the Justice Department that its questions were best directed at the BCS, and the DOJ later called Hancock in for a voluntary meeting with 10 officials from the department's antitrust division in Washington. To date, the department has not launched an investigation. In addition to the DOJ review, the Utah attorney general, Mark Shurtleff, has said he plans to file an antitrust lawsuit against the BCS.
Critics and playoff proponents who have urged the Justice Department to investigate the BCS contend it unfairly gives some schools preferential access to the title game and other premier bowls — along with the money that comes with it. Under the BCS, the champions of six conferences have automatic bids to play in top-tier bowl games; the other five conferences don't.
Hancock and other supporters of the BCS, which was established in 1998, say the system has improved access to the bowls for those other five conferences, and has benefited all schools that play college football.
In last year's memo, Hancock wrote that the BCS attorneys "have advised that in the unlikely event that the conferences' creation of the BCS were to be considered unlawful, it is probable that any other such arrangement — including a playoff — also would be unlawful. Based on conversations with many university presidents, we believe the likely outcome of a finding against the BCS would be a return to the old bowl system which was built upon individually negotiated agreements between conferences and bowls."
In 2008, before he was sworn in as president, Barack Obama said that he was going to "to throw my weight around a little bit" to nudge college football toward a playoff system. Hancock referenced the president's public comments on a playoff, but said that the Justice Department letter "is consistent with his spoken preferences as a fan; it is not indicative of a government that intends to take action."
In a recent interview, Hancock said his 2010 memo still reflects his views on the issue. He stressed that he was writing hypothetically when discussing what would happen if the BCS were to be struck down: "We feel strongly that the BCS system does comply with the law, so the topic is moot."
Nebraska Chancellor Harvey Perlman, who was chairman of the presidential oversight committee at the time of the memo, said he couldn't conceive of a system in which everyone had an equal chance to participate in the postseason.
"If you had a plus-one, does that change the environment very much? No," he said, referring to what amounts to a four-team playoff. "Is it a 16-team playoff, is it a 32-team-playofff?"
No matter what system is devised, he said, some schools and conferences are "not going to have as competitive a chance as others — I mean that's just the reality of the world."
Perlman added that the logic behind concluding a playoff system would be equally suspect under antitrust laws is simple. "If it was held that it's illegal for us to get together (to create the BCS), it's hard to see how getting together to create a playoff wouldn't reach the same result," he said.
But sports antitrust experts contacted by the AP challenged that conclusion.
"I don't think that's true at all," said Gary Roberts, dean of the Indiana University Law School in Indianapolis. "I think you could craft a playoff system that would not have many of the anticompetitive aspects to it that the current BCS system has." Roberts added that the question of whether the BCS could pass antitrust muster is "extraordinarily complicated," and it's difficult to predict how an antitrust case would be resolved in court.
Matt Mitten, a law professor and director of the National Sports Law Institute at Marquette University in Milwaukee, said that what makes the BCS legally vulnerable is that some conferences have preferential access to the BCS bowl games over other conferences.
"That's the thing that makes it a potential antitrust violation," he said. "Not simply because there is an agreement to try to come up with a championship game. The antitrust laws don't prevent colleges from getting together and trying to devise a means to create a national championship game that consumers want. It's only when it unreasonably restrains trade."
Gabe Feldman, a law professor and director of the Sports Law Program at Tulane University Law School, said the key antitrust question for the BCS is whether there is a fairer way to crown a national champion.
"To the extent that a playoff system is more inclusive and is less likely to create a system of haves and have-nots, it's more likely to survive antitrust scrutiny," he said.
But Feldman cautioned that it's hard to predict how the BCS would fare in an antitrust challenge.
Matthew Sanderson, co-founder of Playoff PAC, which seeks to pressure college football to switch to a playoff, said that Hancock was trying to "present a false choice — the BCS or nothing. But we all know better."
The current chairman of the BCS presidential oversight committee, Penn State President Graham Spanier, said even if it was determined that a playoff system was more inclusive than the current system, college presidents still wouldn't switch.
"We're not going to have a playoff," he said. "I chair the oversight committee for the BCS, and I represent the Big Ten Conference, and I've been on the BCS board and its predecessor organizations from the beginning. There has never been any sentiment whatsoever for a playoff ... If we didn't have the BCS, you would see a movement back to a more traditional bowl system."
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