Title Line 1



The Play on the Field is Still Under Review:

Should Congress Intercept the Bowl Championship Series?

Jonathan M. Franz(

Introduction

“They will have to wrestle it out of my cold, dead hands.”

- Dr. E. Gordon Gee, President of The Ohio State University (on the likelihood of a playoff in college football.)[1]

Out of the 119 teams that competed in the NCAA Football Bowl Subdivision in 2008-2009, just one finished undefeated: the Utah Utes.[2] Yet, despite garnering a perfect 13-0 record and besting three Top 25 opponents – including a postseason thrashing of Alabama, a team that ranked first in the Bowl Championship Series (BCS) Standings for five consecutive weeks during the regular reason – the Utes were not named national champions.[3] They weren’t even invited to play for the title. One-loss Florida, and (then) one-loss Oklahoma, the champions of the Southeastern and Big Twelve BCS conferences were asked to play instead.

Florida went on to defeat Oklahoma in the FedEx BCS National Championship Game 24-14, in front of a record crowd of 78,468, capturing the sport’s coveted Coaches’ Trophy.[4] But the Gators weren’t the only ones to win big. All six BCS Conferences, so-called because they possess automatic bids that guarantee the placement of their champions into lucrative BCS bowl games, collected $17.5 million dollar payouts for their appearances.[5] Three BCS Conferences, the Southeastern, Big Ten, and Big Twelve, each placed two teams into BCS bowls, earning an additional bonus of $4.5 million.[6]

By comparison, of the five non-BCS, or mid-major conferences, only one, the Mountain West, placed a team into a BCS Bowl. The other three were forced to send their champions to lower-tier bowls like the International Bowl, the New Orleans Bowl, and the Poinsettia Bowl. With projected per team payouts ranging from $325,000 to $750,000, these lower entries result in dramatically smaller intakes for non-BCS Conferences from the top down.[7]

As a recent joint letter from three U.S. Congressmen to President-elect Barack Obama indicates “Sixty-six bowl-eligible schools—just more than half of the Division I Football Bowl Subdivision — shared 85% of the $217 million generated by the 2006-2007 post-season bowls, about $185 million.”[8] These results are a product of the Bowl Championship Series bylaws, which outline team-selection procedures, assign automatic bids, and reward participating teams and conferences with multi-million dollar payouts.[9]

In the decade since its inception, commentators have pointed to these kinds of economic disparities when evaluating the anticompetitive implications of the BCS. Some, citing the natural variance in talent and marketability between BCS and non-BCS programs have argued that the alliance stays “in bounds” of the Sherman Antitrust Act,[10] rendering an antitrust suit meritless.[11] This is especially true, it is argued, after recent concessions substantially increased the percentage of BCS revenues afforded to non-BCS programs beginning with the 2006-2007 season.[12]

Still, a good number of authorities argue the exact opposite: that the BCS is an imposter, a masquerading system that purports to place the top two teams in the country into a national championship contest, and in fact installs a powerful cartel that benefits only the elite and disrupts the ethic of competition, in violation of antitrust law and the core virtues of the NCAA.[13] This is true even after the addition of a fifth BCS bowl game.[14]

Because ample time and scholastic effort have been devoted to considering the feasibility of an antitrust lawsuit, and further because no such lawsuit has yet occurred, this Note will assume, arguendo, that any attempt to bring a judicial challenge against the BCS under the Federal Laws of the United States will fail. This premise transports us into a far more novel territory: a consideration of what else, if anything, Congress might do to restore a competitive homeostasis to the FBS.

Part I will explore the NCAA’s unfulfilled organizational mission, and the myth of its non-profit platform as well as the history and effect of the Bowl Championship Series. Part II will make a detailed examination of H.R. 7330, the unenacted College Football Playoff Act of 2008, and discuss power and policy considerations surrounding Congressional intervention by chronicling the history of legislative conflict with NCAA affairs.[15]

Because history shows that Congress is most likely to act when correcting perceived inequalities in sex and race contexts, and the BCS will almost certainly be viewed as creating a purely competitive imbalance, I use Part III to explain why change is still necessary, even if unmotivated by legal or legislative limitations. I argue that only way the NCAA can fulfill its joint mission of determining a national champion is by implementing a playoff in the Football Bowl Subdivision. I suggest a workable compromise between the NCAA and the BCS in the form of a modest, one-plus regime. Implementation of a playoff by private contract will maintain integrity and standards of fair play, decrease multiple claims to the national title, and bolster public satisfaction in the legitimacy of the sport. It will eliminate the need for legal or legislative involvement entirely.

This Note takes its title from Rule 12, Section 6(b) of the NCAA Football 2008 Rules and Interpretations that defines and discusses the use of Instant Replay, a controversial system which “utiliz[es] electronic means to review and assist game officials with certain on-field decisions.”[16] Applied by analogy, the adoption of a standard of review shows the NCAA’s recognition of the importance of some measure of procedural due process to achieve “fair play,” a fundamental token that is no less important in the competitive arena of collegiate sports than it is in individual liberty jurisprudence.[17]

I. Fair, Safe, & Equitable Competition: The NCAA’s Incomplete Mission

By 1905, college football, in a crude and unadulterated form, was already a spectacle at private institutions on the East Coast, drawing giant traveling crowds – 43,000 fans filled Harvard stadium for that year’s contest with Yale.[18] Still, the core physicality, the daring, intensity that made the sport and its heroes fun to watch, also led to serious injuries and death. From 1905 to 1916, some 370 players were severely injured, and 41 were killed from “body blows,” spine injuries, brain concussions, and blood poisoning.[19]

Shocked by the rogue violence, and questionable kinesthetic value of the game, critics on faculty boards of control sought to discontinue the sport – to the natural “indignation” of students, alumni, and university regents.[20] In response, President Theodore Roosevelt called college athletics leaders to the White House to encourage reform.[21] That year, the Intercollegiate Athletic Association of the United States (IAAUS) was founded by 62 members.[22] The IIAUS was officially chartered as a discussion group and rules-making body on March 31st, 1906, taking its present name, The National Collegiate Athletic Association in 1910.[23] It administered its first national championship in 1921.[24]

The modern NCAA lists its “core purpose,” as “govern[ing] competition in a fair, safe, equitable and sportsmanlike manner,” and, “integrat[ing] intercollegiate athletics into higher education so that the educational experience of the student-athlete is paramount.”[25] To these ends, the NCAA promotes intercollegiate athletics, administers national championships, and maintains integrity and standards of fair play.[26] Without question, these are important functions, and the NCAA tirelessly delivers on its promise to better university communities nationwide. But economies of scale – like highly visible athletic profiles – are not without commercial intersection.

A. The Myth of the Non-Profit NCAA

Today, the NCAA enjoys the membership of some 1281 public and private institutions, comprising three full-fledged divisions in college athletics.[27] Admirably, the NCAA has worked hard to shield its amateur plants from the chill winds of commercial exposure. But despite its best attempts, the seeds of college athletics have sprouted and flourished. Recent reports suggest college football is the third-most popular sport in the United States.[28]

From inception, the NCAA has billed itself as a non-profit institution – and it is – but, this description should be taken with a grain of salt.[29] To see why, consider Hennessey v. National Collegiate Athletic Association.[30] Hennessey dealt with the organization’s adoption of a special Bylaw to limit the number of assistant football and basketball coaches certain institutions could employ at any given time.[31] To avoid running afoul of the regulation, The University of Alabama downgraded the employment status of several assistant coaches from full to part-time.[32] Not surprisingly, the demoted coaches filed suit challenging the validity of the Bylaw.[33]

In the face of a potential violation of the Sherman Act, the NCAA was adamant in maintaining that it was “outside the ambit of the antitrust laws,”[34] as a “a voluntary, non-profit organization whose activities and objectives [were] educational and [were] carried out with respect to amateur athletics.”[35]

Although sympathetic to the “amateurism of intercollegiate athletics,” the United States Court of Appeals for the Fifth Circuit rejected the NCAA’s self-proclaimed “blanket” immunity, offering that:

While organized as a non-profit organization, the NCAA and its member institutions are, when presenting amateur athletics to a ticket-paying, television-buying public, engaged in a business venture of far greater magnitude than the vast majority of “profit-making” enterprises. The NCAA has a multi-million dollar annual budget; and it negotiates and administers for itself or its members television contracts exceeding, for all sports, over $20,000,000 a year.[36]

Today these numbers have risen exponentially. In 2006-2007 the NCAA boasted $564 million in revenue, more than ninety percent of which ($508.3 million) came from television and marketing rights fees.[37] Because of the organization’s non-profit entity status, none of this money was taxed.[38]

The case law and budget send a clear message: mainstay collegiate athletics have an obvious commercial thread. Scholarly debate[39] notwithstanding, courts have “consistently applied [the Sherman Act] to amateur…entities like the NCAA.”[40] As Schmit observes any “general shield of immunity” the organization might have enjoyed “was pierced…when the NCAA gradually surrendered its amateur status for commercial endeavors.”[41] The greatest of all of these endeavors is the Bowl Championship Series.

B. The Bowl Championship Series: History and Effect

In describing a quintessentially American game, Sports Illustrated Columnist Stewart Mandel writes, “the depth of passion among college football fans is unlike that of any other…sport.”[42] Some historians have gone so far as to argue that the one hundred yard war, derived as a colonial response to inherited British pastimes like rugby and football (soccer), developed on the heels of manifest destiny and America’s lust for control.[43]

Built on a platform of pride, power, and conquest, it is not surprising that “football is the NCAA-regulated sport that is both the most costly for a school to fund and the largest generator of revenue.”[44] To normalize the playing field among a wide-range of institutions, starting in 1973 the NCAA has divided its membership into three “legislative and competitive divisions:” I, II, and III.[45] In 1978 Division I College Football was further divided into two sub-divisions – I-A and I-AA – which have subsequently been renamed the Football Bowl Subdivision (FBS) and Football Championship Subdivision (FCS).[46] Football Bowl Subdivision schools are “fairly elaborate programs,” required to meet a minimum attendance requirement of “15,000 people in actual or paid attendance per home game.”[47] In 2008-09, 119 teams qualified to play in the FBS.[48]

The FBS is further broken down into 11 independent conferences, which are voluntary associations created by member institutions to facilitate “efficiency in scheduling, fundraising, and other administrative tasks associated with collegiate athletic programs.”[49]

1. Ships Passing in the Night: The FBS Postseason Bowl Format

NCAA members are not deists, placed into a competitive arena and left to their own devices, instead, the organization plays an active role in the regulation of the sport and the administration of national championships:

For each of the NCAA's 88 championships, the governing committee and the national office produce a handbook describing the policies and procedures related to the event. The handbooks contain general policies applicable to all championships in areas such as advertising, media coordination and insurance, as well as information specific to the sport, including important dates, the process for selecting participants and on-site arrangements.[50]

Eighty-seven of those handbooks, including FCS, Divisions II, and III college football, describe a playoff “championship,” with teams selected to form a “field,” that then competes in “first, second and quarterfinal rounds,” – a concentric process of single elimination that results in one final team standing: the national champion.[51]

The FBS does things differently. Rather than determine its national champion through a playoff, qualifying teams participate in holiday post-season bowl games: zero-sum contests held in marquis venues, hosted on location in major metropolitan areas. Players enjoy the opportunity to compete against teams from different conferences – a regional diversification that allows them to interact with athletes and styles of play they might not otherwise encounter.

There are few sporting traditions that rival the uniqueness, color, and pageantry of college football’s postseason bowl format. The earliest bowl game dates to 1894 when the University of Chicago invited the University of Notre Dame to play “to help generate civic support.”[52] The next postseason contest didn’t take place until 1902 when Stanford University played the University of Michigan in the inaugural Rose Bowl.[53] The modern bowl era was still three decades away, with the debut of the Orange and Sugar Bowls in 1935.[54] Today, there are 34 bowl games, giving 68 teams the chance to compete in the postseason.[55]

Bowl games are traditionally organized and managed as non-profit entities, which – like FBS conferences – are operationally independent from one another.[56] This structure allows bowls the freedom to contract with conferences for the guaranteed placement of their champions. Beginning in 1946, the Rose Bowl game has featured the champions of the Big Ten and Pacific-10 conferences.[57] Similarly, the Orange, Sugar, and Fiesta Bowls are obligated to feature the champions of the Atlantic Coastal, Southeastern, and Big Twelve conferences respectively.[58]

Because of the absence of a “last man standing” playoff, the FBS division has historically determined its national champion by vote. Until 1998, two polls – one, the Associated Press (AP), composed of a consortium of sportswriters, and the other, the Coaches’ Poll, made up of certain FBS coaches, were the sole determinants of a team’s fate.[59] Each poll declared the team ranked No. 1 at the end of the season the national champion.[60]

It is easy to see how a comparative system that lacked the benefit of head-to-head results was susceptible to subjective intuitions, or loose preconceptions, about a team’s relative merits.[61] As Carroll describes:

The polls failed to provide a consistently accurate reflection of each school's abilities, and underlying prejudices of the voters, such as regional biases and groundless favoritism of certain schools, often skewed the polls' results. As a result, the two polls frequently conflicted with one another, and nearly one-quarter of the Division I-A seasons between 1954 and 1997 ended with “split” championships between two schools.[62]

In the 1990s alone, the national championship was “split” three times, including 1997’s shared title between the undefeated University of Michigan Wolverines – No. 1 in the AP Poll – and the undefeated University of Nebraska Cornhuskers – who finished No. 1 in the Coaches’ Poll.[63] At the end of the season Nebraska traveled to the Orange Bowl in Miami, Florida, where it defeated No. 3 Tennessee, 42-17.[64] Michigan, meanwhile, was dispatched to play almost 3,000 miles away in the Rose Bowl in Pasadena, California, where it bested No. 8 Washington State, 21-16. In the end, there was no objectively concrete way to say which team was best.[65] They were two great, undefeated ships, passing in the night.

2. The Road to the Bowl Championship Series

It was this limitation of the traditional bowl format – the fact that elite conference champions rarely crossed paths – that led to the development of a bowl alliance, and eventually, the Bowl Championship Series.

As early as 1992, a Bowl Coalition was formed among the Orange, Sugar, Cotton, and Fiesta Bowls, to place the champions of the Big Eight, Southeastern, and Southwest Conferences, and increase the likelihood of an AP/USA Today No. 1 versus No. 2 matchup.[66] The Coalition – which awarded automatic bids to the winners of its three member conferences – incorporated underrepresented programs by reserving two at-large spots in the Fiesta Bowl.[67] The remaining placements were accomplished with reference to the Associated Press and CNN/USA Today rankings.[68]

As Kober reports, “The bowl arrangement accomplished its goal in the first year of existence, as No. 1 Miami and No. 2 Alabama met in the Sugar Bowl in a national championship. However, football fans were not satisfied because the Rose Bowl and the Big Ten and Pac-10 Conferences had not been included in the Coalition.”[69] When the Coalition plan was re-branded as the Bowl Alliance in 1995, this seminal defect remained.[70]

The Bowl Championship Series solved the problem of Big Ten and Pac-10 representation when it debuted in 1998 as a reincarnation of the Bowl Coalition/Bowl Alliance.[71] At inception, the BCS boasted the membership of the Atlantic Coast, Big East, Big Ten, Big Twelve, Pacific-10, and Southeastern Conferences, as well as four premiere bowl games: the Fiesta, Sugar, Orange, and (the venerable) Rose.[72]

What changed the minds of the stubborn Big Ten and Pac-10 Conferences? Along with a $550 million, eight-year exclusive broadcast deal with ABC Sports, all six conference pockets were padded with a guaranteed $11.78 to $14.67 million yearly payout, dependant only on the affiliations of the (potential) at-large participants.[73] If a second-team from a BCS Conference appeared in a BCS game, the conference would net an additional $6 million.[74]

Non-BCS conferences, by comparison, were promised leftovers, in the form of a $40 million “revenue sharing plan,” to be divided among the five leagues over an eight-year period. [75] The agreement translated to approximately $1 million per conference, per year, or less than 8.4% of the BCS member intake.[76] In the first six years of the BCS, not a single non-BCS conference team was invited to participate in a BCS Bowl.[77]

As Carroll describes, “Instead of prematurely locking participants into less desirable match-ups, the BCS…creates a pool of six conference champions and…other high-quality teams from which…bowls select their respective competitors.”[78] Billed as a system designed to “determine [a] national champion…while maintaining and enhancing [a] bowl system that’s nearly 100 years old,” the BCS took aim at inherent subjectivities in the polls by applying a numerical brace: the BCS Standings.[79]

The BCS Standings is an empirical index used to rank the Top 25 FBS teams, identify at-large BCS bowl participants, and (most importantly) isolate the No. 1 and No. 2 teams for a head-to-head collision.[80] The standings are calculated using a five-factor formula that considers 1. Each school’s average ranking in the in AP and Coaches Poll, 2. Each school’s average ranking in seven “computer generate[d]” polls “published by major media outlets,”[81] 3. The “value” of each team’s “strength of schedule,”[82] 4. The team’s record, and 5. Quality wins.[83] The teams in the top two spots on the last week of the regular season are invited to play for the national championship.[84]

At inception, the BCS rotated the national championship between the Fiesta, Sugar, Orange, and Rose Bowls, giving each site an equal opportunity to host the premiere contest.[85] The outstanding six spots were filled with the remaining champions of the six BCS Conferences, and a varying number of at-large teams.[86]

Despite its promise to deliver a true national champion, the BCS system faced scrutiny almost immediately. As Schmit describes:

In 1998, Tulane finished the season undefeated and won ten games by double-digit margins. The following year, Marshall completed a perfect 13-0 record, including an impressive season-opener at Clemson. Both Tulane and Marshall won their bowl games and were only one of two undefeated teams at the end of their respective seasons. Despite their flawless records, Tulane and Marshall did not have high enough BCS rankings to warrant a shot at the national championship, and both were relegated to lower-tier bowls.[87]

Naturally, apologists for the system justified the oversight by pointing to the weaker strength of schedule played by both teams. This argument was significantly undercut in 2001, however, when BYU reached its season-finale undefeated and ranked 12th in the BCS standings.[88] The BCS bylaws required the ambassadors of the bowls to consider awarding BYU an at large bid, but when all was said and done, the Cougars were “removed from…consideration.”[89] As Schmit reports, “The Sugar Bowl's executive director, Paul Hoolahan, later admitted that BYU's lack of marketability influenced this decision.”[90]

Although this admission was downplayed by the framers of the BCS, it brought to light values inconsistent with system’s mission. Rather than determining a national champion using the bowls, as it claimed it was doing, the BCS was in fact creating a high-publicized platform, reserved only for national powers, whose appearances in BCS bowl games guaranteed significant ratings and advertising revenues for the networks and tourism for the host city. To the extent to which these chief interests created a risk that the two “best” teams in the country would not play, the BCS was unphased, at best, and indifferent, at worst.

In response to these early miscarriages, an alliance was formed among non-BCS members in 2003.[91] Branded the Presidential Coalition for Athletics Reform, and led by Scott Cowen, President of Tulane University, the coalition successfully lobbied Congress and BCS officials for change in the core BCS format.[92] Although Cowen’s visit to the Hill was highly publicized, see infra, Part II, Congress took no official action. It was the private actions of private actors that led to contractual compromise.

Beginning with the 2006 postseason, the BCS created a fifth BCS bowl, the BCS National Championship Game, and adopted a “double hosting” format.[93] As Schmit describes, “[T]he National Championship game accompany[ies] one of the four BCS bowl games. That is, one of the aforementioned bowls…host[s] both its traditional BCS bowl game and the National Championship game every four years.”[94]

In addition to the creation of two more at-large spots, the BCS modified the eligibility criteria to include one conference champion from Conference USA, Mid-American, Mountain West, Sun Belt, and Western Athletic Conferences, provided it meets one of two criteria: (1) “it is ranked among the top twelve in the final BCS Standings,” or (2) “it is ranked among the top sixteen in the final BCS Standings and is ranked higher than the champion of one of the conferences whose champion has an annual automatic berth.”[95]

Finally, starting after the 2007 season, “automatic qualification standards” were put into place to evaluate which of the eleven FBS conferences should be awarded automatic BCS bowl berths for their champions. Evaluations of each of the previous four-seasons, based on the conference’s current membership, are designed to result in “no fewer than five and no more than seven” automatic bids.[96] Despite the promise of an FBS-wide comparison, no changes have been made.[97] The original six BCS conferences remain the beneficiaries.

Although non-BCS teams have earned a spot in a BCS bowl game in every year since the modifications were put in place in 2006, no non-BCS team has ever played for the BCS National Championship, a feat many consider a statistical impossibility because of heavy BCS league strength-of-schedule biases.[98] Interestingly, non-BCS teams are 3-1 in BCS bowl games against BCS opponents.[99] All three of those teams ended the season undefeated.[100] Might any of them have been the best team in the nation? Because of the BCS, we will never know.

II. Should Washington Intercept the Bowl Championship Series?

“I THINK ANY SENSIBLE PERSON WOULD SAY THAT IF YOU'VE GOT A BUNCH OF TEAMS WHO PLAY THROUGHOUT THE SEASON, AND MANY OF THEM HAVE ONE LOSS OR TWO LOSSES, [AND] THERE'S NO CLEAR DECISIVE WINNER [THEN] WE SHOULD BE CREATING A PLAYOFF SYSTEM…I DON'T KNOW ANY SERIOUS FAN OF COLLEGE FOOTBALL WHO HAS DISAGREED WITH ME ON THIS. SO, I'M GONNA THROW MY WEIGHT AROUND A LITTLE BIT. I THINK IT'S THE RIGHT THING TO DO.”[101]

- President Barack Obama

These words – however ephemeral – spoken by President Barack Obama on national television shortly after his election, illustrate the extent to which the debate over college football’s postseason has swollen well-beyond regulatory channels at the institutional level. The President’s input, however political, is a strong litmus indicator that the controversy over the Bowl Championship Series pervades the national consciousness.

But the President is not the only elected official to weigh-in on the debate. As early as 2003 both the House and Senate Judiciary Committees held hearings on competition in college athletic conferences, and examined possible antitrust violations of the BCS.[102] However, as Armsby notes, “the combined result yielded not much more than a sound bite from current Vice President[] Joe Biden: ‘It looks un-American. ... It looks like a rigged deal.’"[103]

Congress ultimately punted, deciding that it “would not take remedial steps until the Presidential Coalition exhausted its alternatives to legislative intervention…primar[ily]…an antitrust suit.”[104] As mentioned previously, no such suit has been filed. This could be because would-be plaintiffs – Presidents of Non-BCS institutions – understand the difficulty of prevailing under the deferential “rule of reason” standard,[105] and merely used the threat of an antitrust lawsuit as a bargaining device in ongoing negotiations with the BCS. Or, it could be because Non-BCS Presidents – in the wake of 2004 concessions and the addition of a fifth BCS Bowl Game – truly believe that they were lucky to get something.[106]

That is not to say that the possibility of an Antitrust challenge, with a Sherman Act remedy in view, has completely disappeared. Days after his home-state Utes defeated Alabama in the Sugar Bowl, icing a perfect season, Utah Attorney General Mark Shurtleff opened an investigation of the BCS, contending that the system “unfairly puts schools like Utah…at a competitive and financial disadvantage.”[107] The results of this investigation have yet to be made public.

In 2005, at the behest of Representative Joe Barton, a BCS official appeared before an Energy and Commerce Subcommittee, but again, no legislation resulted.[108] In April of 2008, the House of Representatives “condemned the BCS as ‘an illegal restraint of trade that violates the Sherman Anti-Trust Act’ and also urged the Justice Department's Antitrust Division to investigate.”[109] But no significant action has yet been taken.

A. The College Football Playoff Act of 2008 (H.R. 7330)

Surprisingly, considering its track record of paying lip service to the issue, a half decade after Congress first held investigative hearings on the BCS it delivered House Resolution 7330, popularly referred to as the College Football Playoff Act of 2008.[110] The resolution was introduced by Representative Joe Barton a week after his home state Texas Longhorns –favorites with his constituents – were “leapfrogged” in the last edition of the Bowl Championship Series Standings by an Oklahoma team with the same record as the Longhorns, and who the Longhorns had beaten during the regular season.[111] Texas ended up ranked third and missed out on the chance to play for the 2008-09 national championship.[112]

Since H.R. 7330 is the unenacted product of the, now defunct, 110th Congress, and is not listed as active legislation on the current 111th Congress’s calendar, our analysis of the resolution is largely symbolic.[113] Nonetheless, the text provides a useful blueprint into the architecture Congress might employ if it did choose to address the BCS.

H.R. 7730 is described as:

A Bill [t]o prohibit, as an unfair and deceptive act or practice, the promotion, marketing, and advertising of any post-season NCAA Division I football game as a national championship game unless such game is the culmination of a fair and equitable playoff system.[114]

Curiously, the preamble does not explicitly mention the BCS, or any bowl alliance, but rather, “cuts the serpent’s head off,” by targeting the product of the system: the national championship game. Naturally, without a marketable championship matchup, the BCS is worthless, prima facie.

1. Constitutional Authority

Section 2 identifies a list of “findings,” or motivating factors, starting with Congress’s constitutional authority to regulate. As Paragraph (1) reads, “college football games, including post-season football games, depend upon competition between college and university teams traveling in interstate commerce.”[115] Paragraph (2) continues, “the competitions involve and affect interstate commerce and are therefore within Congress’s constitutional authority to regulate.”[116]

The Commerce Power, described in Article I, Section 8 of the United States Constitution, and broadly construed since the New Deal, is the chief vehicle the Congress relies upon in effecting regulatory legislation.[117]

In NCAA v. Miller, the Association sued the University of Nevada, seeking to enjoin the application of a Nevada Statute to an “infractions” case involving the UNLV intercollegiate basketball program.[118] The Nevada Legislature – concerned with the Association’s process of investigating infractions and apparent lack of procedural safeguards – passed a Statute that demanded:

(1) that at least thirty (30) days prior to the prehearing conference the NCAA give each defendant copies of all documents the NCAA intends to rely upon or use in any manner; (2) that each defendant be given the opportunity to confront all witnesses; (3) that the NCAA provide the defendants all exculpatory statements obtained by the NCAA; (4) that the Committee on Infractions is not impartial and that an independent and impartial entity be selected to adjudicate the facts and corrective actions; [and] (5) that all proceedings of the NCAA hearing be open to the public, recorded and transcribed.[119]

The Association responded that it could not “comply with the defendants' requests without violating [its own] substantive and procedural rules applicable to all NCAA member institutions.”[120]

In requesting declaratory and injunctive relief, the NCAA claimed that the Nevada Statute impermissibly strayed into the territory of regulatory authority granted to Congress under the Commerce Clause.[121] To make that determination, the court considered “whether the regulatory activities of the NCAA involve interstate commerce for purposes of Commerce Clause protection in light of the educational objectives of the NCAA.”[122]

In deciding affirmatively, the court relied on the Fifth Circuit’s essential declaration in Hennessey v. NCAA, that the NCAA and its members are “significantly involved in interstate commerce in the conduct of the athletic programs.”[123] It pointed to the “seventy-six” (now eighty-eight) “annual NCAA championship events” staged across the country, requiring “the transportation of teams across state lines,” “bids involving hundreds of millions of dollars for interstate television broadcasting of intercollegiate sports events,” and the NCAA’s strict regulation of “collegiate recruiting” which takes place “on a national and even international scale.”[124] This framework led the Miller court to conclude “that the national scope of the NCAA's activities are sufficient to establish the requisite interstate involvement under the Commerce Clause.”[125]

H.R. 7330 follows this same path, acknowledging, in Paragraph 3, “the total economic impact in the host cities from the 5…BCS games in January 2008 was estimated at more than $1.2 billion.”[126] The five BCS contests take place in interstate locations (Miami, New Orleans, Phoenix, and Los Angeles), requiring “the transportation of teams across state lines,” fan travel and lodging, and “bids involving hundreds of millions of dollars for interstate television broadcasting.”[127]

There’s little question that H.R. 7330 affects the kind of commercial activity contemplated by the Hennessey and Miller courts. Accordingly, it is safe to assume that the College Football Playoff Act passes constitutional muster.[128]

2. Economic Justification and Analysis

Along with the $1.2 billion in economic impact, H.R. 7330 cites the $17.5 million in payout revenue participating teams earn for their BCS bowl appearances.[129] Interestingly, it also refers to a number of “soft factors,” or interests that are not directly quantifiable. These include: 1. The rotation of the championship among cities (in recognition of the “important economic impact to the host”), 2. “[I]ncreased applications for enrollment,” 3. “[R]ecruiting advantages,” 4. “[I]ncreased alumnae donations,” and, 5. “[I]ncreased corporate sponsorship.”[130] The cumulative effect of these economic factors is that programs who regularly gain access to BCS games enjoy a “competitive advantage over universities whose teams are ineligible or statistically at a disadvantage.”[131]

The ineligibility reference is superfluous, since, in theory, all 119 FBS teams can earn a bid into the BCS national championship. That notwithstanding, Section 2 makes an apparently compelling case for intervention, borrowing from the list of anticompetitive effects commentators have offered in weighing the antitrust arm of the controversy.[132]

Still, we have to ask, how is it that Section 2 – by description – presents enough evidence to justify Congressional intervention (through the passage of H.R. 7330), but the same evidence, presented in an antitrust claim, might not be enough to tip the scale in favor of an anticompetitive finding? Aren’t the federal antitrust laws – proscribed by statute and applied for over a century in commercial endeavors – designed to address this precise kind of market behavior?

To answer this question, I turn now to a history of Congressional intervention and the NCAA. Though the survey clearly showcases “the growing influence of the courtroom and legislative chamber on the NCAA’s programs and priorities,” it also provides a number of compelling justifications that weigh against Congressional intervention.[133]

B. A History of Legislative Conflict and the NCAA

In this section I consider actions by the legislature, and their operational effect on the NCAA.[134] The conflict between the association’s goals and practices, and the larger public context is seen most evidently in events surrounding Title VI of the Civil Rights Act of 1964,[135] Title IX of the Education Amendments of 1972,[136] and a number of state statutes attempting to bring NCAA standards in line with procedural due process.[137]

These episodes bring to light several important characteristics about Congressional motives that guide our discussion of the BCS. First, the Committee hearings that have taken place are often premised on the insular frustrations of individual members, or small groups of members whose home state teams have been slighted by the system. That is not to say the harms the committee seeks to address are not real, it is just they rarely reflect across the board concerns.

Second, Congress often “talks the talk,” but doesn’t “walk the walk;” publicly reprimanding the NCAA in chamber-rooms, or in press-appearances, but ultimately not “throwing a punch,” by delivering legislation.[138]

Third, when Congress has acted, it has usually done so indirectly, in the process of installing a larger social statutory scheme.

Fourth, these schemes are usually designed to address compelling interests, correcting perceived inequalities in sex and race contexts. When mere competitive imbalance is at interest (as with the BCS) Congress has stayed its hand.

Institutions of higher learning face an “intractable collective action problem,” when they attempt to compete at an equal level on the field as they do in the classroom.[139] This is because “[t]he exploding revenues of the intercollegiate sports industry tempt schools to admit athletically talented but academically deficient student athletes, enabling the schools to realize financial windfalls but degrading their academic integrity in the process.”[140] In 1965 the NCAA responded to this problem by requiring incoming freshmen to satisfy certain “eligibility requirements” in order to play sports and receive merit-based financial aid.[141]

Despite evidence that the requirements “disproportionately harm[ed] racial minorities,” academic floor propositions survived civil rights challenges “across the board,” for over three decades, until a District Court struck down “Proposition 16,” the latest incarnation, as violating Title VI of the Civil Rights Act of 1964 in Cureton v. NCAA.[142]

Title VI prohibits racial discrimination in programs and activities receiving Federal financial assistance. It demands that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”[143]

The NCAA was affiliated with the National Youth Sports Program (NYSP), a recipient of financial assistance from the U.S. Department of Health and Human Services.[144] Cureton involved two track stars who graduated from the same high school with “lofty class rankings,” but did not perform well enough on standardized testing to meet the NCAA minimum.[145] They sued, and prevailed at the District Court level, but the Third Circuit reversed, finding that Title VI did not apply to the NCAA, who lacked “controlling authority” over its affiliate membership.[146]

Similar issues of control arise under Title IX, which is “modeled after Title IV,” and intended to be “interpreted and applied” the same way.[147] Title IX expands Title IV’s prohibition of racial discrimination in federally-funded activities to another immutable characteristic: gender. As it describes: “No person in the United States shall on the basis of sex, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."

The Cureton court was influenced by the Supreme Court’s decision in a Title IX case, Grove City College v. Bell, where it found “that the receipt of [funding] by some…students does not trigger institution-wide coverage under [the statute].”[148] The practical effect of Bell was thus to hold Title IX “applicable only to the specific program[s] receiving federal financial assistance.”[149]

This result, not surprisingly, was unacceptable to Congress, who intended for Title IX to apply broadly at the institutional level. It responded by passing the Civil Rights Restoration Act of 1987, which enlarged the scope of Title VI “to encompass all the programs or activities of a federal financial assistance recipient, not just the specific recipient program.”[150]

What happened next is an exercise in bureaucratic oversight: “Despite the Act's explicit expansion of the scope of Title VI…the Departments of Education and Health and Human Services never amended their implementing regulations to capture this expansion. This omission prompted the court to conclude that the regulations, by their terms, remained program-specific.”[151]

Cureton served as an effective wake-up call. After the decision, the Department of Education “expanded the scope of Title VI's implementing regulations,” to apply the disparate impact to “individual institutions.”[152]

There are several lessons to be learned from this. First, Titles VI and IX, the subjects of the conflict between the NCAA and the legislature, were not initially written with college athletics in mind.[153] Although athletics clearly fell under the ambit of the Congressional directive as “program[s]” or “activit[ies],” it was not until NCAA practices created controversy, that Congress (and the regulatory agencies it enables) took notice. Congress’s regulation of the NCAA was indirect.

Second, Congress’s (and later, the Department of Education’s) remedial action, was in response to perceived mistreatment of suspect classifications, or groups “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.”[154] In broadening the reach of Titles VI and IX, Congress helped to make sure women, men, and racial minorities had an equal ability to participate in college athletics.[155]

C. Smoke, But No Fire: Why Congress Shouldn’t Get Involved

The descriptive history of legislative intervention and the NCAA makes a convincing case for why Congress will not allow itself to be interjected into a private, competitive dispute between institutional actors. Before we close this section, lets briefly touch on a far more normative inquiry: why ought not Congress get involved?

I believe there are two reasons – both of which appeal to ideals of justice and efficiency. First, in resurrecting a proposition posted infra, Part II, A, 2, the federal antitrust laws are designed to address this exact kind of market behavior. Is the case of the BCS so unique as to warrant extra-judicial relief? While it is important, it is not.

Second, Congress has “bigger fish to fry.” To quote Norman Lent, a subcommittee member from New York who presided over a 1978-1979 review of the NCAA Infractions Committee:

I have always found it hard to justify this subcommittee’s investigation of college athletics. During 1978, the Oversight and Investigations Subcommittee devoted more of its time and resources to the NCAA investigation than to any other single issue — including such vital questions as cancer-causing chemicals in foods and decontrol of crude oil and gasoline prices.[156]

In the midst of wars in Iraq and Afghanistan – whose expenditures could exceed $2.4 trillion over the next decade – and “the worst 12 month job loss since the Great Depression” our legislature is overwhelmed with foreign and domestic crises.[157] In light of climate change, exhaustion of finite resources, trade and current account deficits, falling interest rates, and rising inflation,[158] Congress has complex subjects to address that affect our well being and civil order. However troublesome, the Bowl Championship Series and its practical oversight are not issues that deserve the limited energy of our lawmakers.

III. The One Plus Playoff: A Workable Compromise

It should be clear by now that, although Congress can, it will not, and should not, attempt to settle competitive inefficiencies in college football. It’s also unlikely that any one program or conference will be willing to advance the resources necessary to wage an antitrust battle.

Recently, Western Athletic Conference Commissioner Karl Benson offered a candid assessment: “We need to recognize that it's never going to be a totally fair system…I think that what we received in 2004 was fair.”[159] Benson even went so far as to call the system “generous,” citing the $55 million in payouts non-automatic qualifying conferences have received in the past three seasons, and the $3 million annually non-BCS Conferences share for signing onto the BCS. That fact that in a decade of existence the BCS has not weathered even a single complaint, further cuts against the potential for litigation.

Still, could an anticompetitive practice that lacks legal standing, and fails to justify extraordinary intervention warrant private modification? If so, what institutional pressures exist to convince “invincible” private parties that change is necessary?

A. Why Change Remains Necessary

Although commentators do not agree on whether or not the BCS is illegal, they all seem to recognize its inherent flaws.[160] At the top of the list is the system’s well-documented failure to produce an undisputed national champion. In ten seasons of existence, the BCS has scrambled seven times to decide which of three or more qualified programs should be chosen to play for the title.[161] Ultimately, the decision has come down to complex empirics, with teams “leapfrogging” each other by decimals. Computers have had more of an impact than cleats on the outcome of the game.

To reduce the margin of error, BCS officials have considered implementing a “plus-one” format.[162] As originally proposed the “plus-one” modification would create a miniature playoff by “seeding the top four teams after the regular season and playing No. 1 vs. No. 4 and No. 2 vs. No. 3 in bowl games, essentially creating two national semifinals.”[163] The winners would then compete a week later for the national championship.[164]

When the idea was introduced in early 2008, it met immediate resistance from the commissioners of the Big Ten and Pac-10 Conferences, who feared a modification might “make the Rose Bowl less attractive.”[165] Ultimately, the “plus-one” proposal was rejected, when the BCS agreements were extended “intact” through 2014.[166]

B. A Workable Compromise

I believe the commissioner’s rejection of the “plus-one” proposal was a mistake, and recommend reconsideration of the “plus one” format for adoption beginning with the 2015 season.[167] The adoption of an amended “plus-one” format will resurrect integrity and standards of fair play, decrease multiple claimants to the national title, and, in doing so, bolster satisfaction in the legitimacy of the sport. Most importantly, it has a good chance of eventually being accepted by the BCS polity.

Although a playoff of any kind will have the incidental effect of removing some significance from any first round BCS game, the idea is hardly different than the standing “double hosting” arrangement in which BCS sites sponsor their namesake bowls, and then the BCS National Championship Game several days later. Presently, the competitors in the Rose Bowl have no chance to play for a national championship. Win or lose in Pasadena, they are on the next flight home.

Imagine, then, the increased competitive excitement of playing in the Rose Bowl and knowing that a win affords the chance to play for the BCS National Championship. Might this “sudden death” proposition entice fan participation and television exposure? Rather than walking away from the season a “bowl” champion, a “plus-one” format gives more teams the chance to be national champions. It also shifts the statistical margin of error (in the BCS Standings) from between numbers 2 and 3, to numbers 4 and 5. This, of course, decreases a team’s ability to protest that it should have been included in the semifinal pool.

There are several public forces that ultimately can, and will motivate private action. First, from an organizational standpoint: implementation of a playoff by private contract will maintain integrity and standards of fair play, by giving more teams the opportunity to compete for a national championship.

Second, it will decrease multiple claimants to the national title. Of the seventy percent of seasons in which the BCS is forced to choose between three or more teams for two title slots, a “one-plus” playoff will help mitigate the resounding controversy.

The public effect of these two advances is to bolster satisfaction in the legitimacy of the sport. Because consumer satisfaction directly correlates with ratings, licensing, and advertising – muscular gains in fan enthusiasm is almost certain to lead to greater attendance and profits in the long run.

IV. Conclusion

The NCAA’s organizational mission: to promote intercollegiate athletics, administer national championships, and maintain integrity and standards of fair play, is severely compromised by FBS College Football’s Bowl Championship Series. Still, although Congress has the power to mandate change, it will not, and should not get involved.

A history of legislative conflict with NCAA affairs shows that Congress is most likely to act when correcting perceived inequalities in sex and race contexts – never to address a purely competitive imbalance. Still, change is necessary, even if unmotivated by legal or legislative limitations.

The only way the NCAA can fulfill its joint mission of determining a national champion is by implementing a playoff in the Football Bowl Subdivision. This playoff should take the shape of a modest, “one-plus” regime. Implementation of a playoff by private contract will maintain integrity and standards of fair play, decrease multiple claims to the national title, and bolster public satisfaction in the legitimacy of the sport. The above steps will eliminate the need for legal or legislative involvement, allowing players, coaches, and fans to get back to the game itself.

-----------------------

( Candidate for Juris Doctor, The Ohio State University Moritz College of Law, 2010; B. Phil., Miami University, 2006.

[1] Tim May, Still against a playoff, but not averse to change, The Columbus , Dec. 7th, 2008, .

[2] NCAA Members By Division, (last visited Jan. 9, 2009).

[3] Utah secures perfect season with Sugar Bowl win over Alabama, (last visited Mar. 14, 2009); College Football BCS Standings, (last visited Jan. 9, 2009).

[4] Associated Press, Florida Rides Tebow, suffocating defense to another BCS title, Espn U College Football, Jan. 9, 2009, .

[5] BCS Bowl Facts, (last visited Jan. 9, 2009) (Listing the projected payouts for all five BCS bowl games).

[6] Brock Vergakis, BCS may violate antirtust laws, Associated Press, January 6, 2009, .

[7] 2009 International Bowl, Quick Facts, (last visited Jan. 9, 2009); R&L Carriers New Orleans Bowl, Per Team Distribution, (last visited Jan. 9, 2009); See also Thomas O’Toole, $17M BCS payouts sound great, but…, USA Today, Dec. 6, 2006, (providing a payoff breakdown of all FBS bowl games).

[8] Neil Abercrombie, Mike Simpson, & Jim Matheson, Joint letter to Obama on college football playoff comments, USA Today, Nov. 20, 2008, .

[9] BCS Selection Procedures, (last visited Mar. 14, 2009).

[10] 15 U.S.C. §§ 1-7 (2006).

[11] Todd M. Carroll, No Penalty On The Play: Why The Bowl Championship Series Stays In-Bounds of the Sherman Act, 61 Wash. & Lee L. Rev. 1235, 1286 (2004); See also Timothy Kober, Too Many Men on the Field: Why Congress Should Punt on the Antitrust Debate Overshadowing Collegiate Football and the Bowl Championship Series, 15 Seton Hall J. Sports & Ent. L. 57, 82 (2005) (Observing that the BCS provides procompetitive benefits that should insulate it from an antitrust challenge); Brett P. Fenasci, An Antitrust Analysis of College Football’s Bowl Championship Series, 50 Loy. L. Rev. 967, 996 (2004) (Maintaining under the “rule of reason” analysis that the BCS does not violate antitrust law); Jodi M. Warmbrod, Antitrust in Amateur Athletics: Why Non-BCS Universities Should Punt Rather Than Go for an Antitrust Challenge to the Bowl Championship Series, 55 Okla L. Rev. 333, 371 (2004) (Arguing that a potential BCS antitrust claim would confuse athletic and economic competition).

[12] C. Paul Rogers III, The Quest for Number One in College Football: The Revised Bowl Championship Series, Antitrust, and the Winner Take All Syndrome, 18 Marq. Sports L.J. 285, 307 (2008).

[13] Katherine McClelland, Should College Football’s Currency Read “In BCS We Trust” or Is It Just Monopoly Money?: Antitrust Implications of the Bowl Championship Series, 37 Tex. Tech L. Rev. 167, 213 (2004); See also K. Todd Wallace, Elite Domination of College Football: An Analysis of the Antitrust Implications of the Bowl Alliance, 6 Sports Law. J. 57, 82 (1999) (The benefit of a national championship game is insufficient “to justify an arrangement which reduces the output and product of college football.”); Jasen R. Corns, Pigskin Paydirt: The Thriving of College Football’s Bowl Championship Series in the Face of Antitrust Law, 39 Tulsa L. Rev. 167, 206 (2003) (“[A] jury may be persuaded to decide that the anti-competitive effects of the BCS are greater than the pro-competitive effects, and thus rule that the agreement violates antitrust law.”).

[14] Jude D. Schmit, A Fresh Set of Downs? Why Recent Modifications to the Bowl Championship Series Still Draw a Flag Under the Sherman Act, 14 Sports Law J. 219, 221 (2007).

[15] H.R. 7330, 110th Cong. (2008).

[16] Nat'l Collegiate Athletic Ass'n, NCAA Football 2008 Rules and Interpretations (2008), . See also Dennis Dodd, Instant replay finally lands in college football, CBS Sports College Football, Aug. 4, 2004, (The system was introduced on an experimental basis in the Big 10 Conference in 2004 before being widely adopted across the Football Bowl Subdivision landscape).

[17] Hannah v. Larche, 363 U.S. 420, 442 (1960).

[18] Joseph N. Crowley, In The Arena: The NCAA’s First Century 5 (2006).

[19] John Sayle Watterson, College Football: History, Spectacle, Controversy 401 (2002).

[20] Crowley, supra note 17.

[21] The History of the NCAA, (last visited Jan. 11, 2009).

[22] Id.

[23] Id.

[24] Id.

[25] National Collegiate Athletic Association: Our Mission, (last visited Jan. 11, 2009).

[26] Need cite.

[27] NCAA Members by Division, supra note 1.

[28] The Harris Poll, (last visited Jan. 15, 2009).

[29] Aaron Steinberg, Mr. Brand Goes to Washington: Does the NCAA deserve non-profit status? ReasonOnline, Jan. 4, 2007, .

[30] 564 F.2d 1136 (5th Cir. 1977).

[31] Id. at 1141.

[32] Id.

[33] Id.

[34] Id. at 1148 n.23.

[35] Hennessey, 564 F.2d at 1148.

[36] Id. at 1149 n.14. In holding as it did the Fifth Circuit relied on the United State Supreme Court’s statement in Goldfarb v. Virginia that “Congress intended to strike as broadly as it could in [enacting] the Sherman Act.” 421 U.S. 773, 787 (1975).

[37] NCAA 2006-07 Budgeted Revenue and Expenses, (last visited Jan. 15, 2009).

[38] Steinberg, supra note 27. Also immune from taxation is the $6 billion the organization has accumulated from CBS for broadcasting rights to its annual “March Madness” Basketball Tournament.

[39] See Peter Kreher, Antitrust Theory, College Sports, and Interleague Rulemaking: A New Critique of the NCAA’s Amateurism Rules, 6 Va. Sports & Ent. L.J. 51 (2006); See also Amy Christian McCormick, The Emperors New Clothes: Lifting the NCAA’s Veil of Amateurism, 45 San Diego L. Rev. 495 (2008) (Arguing that the NCAA’s product is neither amateur nor non-commercial).

[40] Schmit, supra note 13, at 236. See also NCAA v. Bd. of Regents of the Univ. of Okla., 468 U.S. 85 (1984) (Holding an NCAA-negotiated television contract was a clear violation of antitrust law); Law v. NCAA, 134 F.3d 1010 (10th Cir. 1998) (Finding procompetitive justifications for NCAA-imposed salary restrictions were outweighed by anticompetitive effects).

[41] Id.

[42] Stewart Mandel, Bowls, Polls, & Tattered Souls: Tackling the Chaos and Controversy that Reign Over College Football 1 (2007).

[43] Sal Paolantonio, How Football Explains America 1-15 (2008).

[44] Carroll, supra note 10, at 1242.

[45] The History of the NCAA, supra note 18. See also What’s the difference between Divisions I, II, and III?, (last visited Jan. 16, 2009) [hereinafter What’s the difference?] (Division I member institutions must sponsor a minimum of seven sports for men and seven for women or “six for men and eight for women…with two team sports for each gender,” as well as “contest and participant minimums for each sport.”).

[46] Id.

[47] What’s the difference?, supra note 43.

[48] NCAA Members by Division, supra note 2.

[49] Carroll, supra note 10, at 1243.

[50] NCAA Championship Handbooks, (last visited Jan. 17, 2009).

[51] Nat'l Collegiate Athletic Ass'n, NCAA Football 2008 Division II Football Championship Handbook 11-13 (2008), . The selection criterion for participants involves: 1. Win/loss record, 2. Strength of Schedule, 3. Availability of athletes for NCAA Championships, and 4. Nullification.

[52] Wallace, supra note 12, at 60.

[53] Id. “Since then, the [Rose Bowl] has showcased 18 Heisman Trophy winners, produced 20 national champions, [and] featured 197 consensus All-Americans.” It’s no surprise that the contest – currently in its 96th incarnation – is known as the “Granddaddy of Them All.” Pasadena Tournament of Roses, (last visited Jan. 19, 2009).

[54] Id.

[55] Childs Walker & Candus Thompson, Are there too many college football bowl games?, , Dec. 30, 2008, .

[56] Football Bowl Ass'n, (last visited Jan. 19, 2009).

[57] Carroll, supra note 10, at 1248-49; See also BCS Background, (last visited Jan. 19, 2009) (“Reflecting the importance of traditional regional considerations” the BCS Rose Bowl will continue to host the champions of the Big 10 and the Pac 10 Conferences.).

[58] BCS Background, (last visited Jan. 19, 2009).

[59] Carroll, supra note 10, at 1244-45.

[60] Id.

[61] To tackle the difficult – if not impossible – task of ranking independent items, like bowl performances, voters rely on truth functional conditionals, which provide the seemingly logical underpinnings for the rational assumptions we make. As Evans and Ower describe, “The truth value, i.e. the truth or falsity, of the material conditional is fully determined by, and is indeed a strict mathematical function of, the truth or falsity of its component propositions.” Jonathan St. B.T. Evans & David E. Over, If Oxford Cognitive Science Series: Supposition, Pragmatics, and Dual Processes 12 (2004). For example, every fifth-grader knows that if A is greater than B and B is greater than C, A must be greater than C. Pollsters follow this same logic when they rationalize the strength of a given team in comparison to outstanding competition. The problem is that on paper intuition doesn't perfectly translate to a live arena like competitive sports where any team can win on “any given Saturday.”

[62] Id. at 1249.

[63] Wallace, supra note 12, at 60 n. 17.

[64] 1997 National Champions, (last visited Jan. 19, 2009).

[65] Id.

[66] Kober, supra, note 10, at 60.

[67] Id.

[68] Id.

[69] Id.

[70] Id.

[71] Carroll, supra, note 10, at 1253.

[72] Id.

[73] Bowl Championship Series – About the BCS, (last visited Mar. 9, 2009).

[74] BCS Chronology, (last visited Mar. 9, 2009).

[75] Id.

[76] Id. See also Carroll, supra, note 10, at 1256 (Confirming that “[T]he BCS has distributed nearly ninety-five percent of the revenue it has created among the six BCS-member conferences.”); See also Schmit, supra, note 13, at 232 (Reporting total projected payouts at $96,160,00 for 2006 BCS games, “Conference USA, Mid-American, Mountain West, Sun Belt, and Western Athletic Conferences were entitled to a mere $5,160,000 of that amount for their participation in the arrangement.”).

[77] Id.

[78] Id. at 1254.

[79] Welcome to the BCS, (last visited Mar. 4, 2009). Curiously, this official preamble, listed on Fox Sports’s official Bowl Championship Series website, fails to acknowledge historical bowl contests that took place in 1894 and 1902 that, in fact, would make the bowl system over a century old, see supra Part I, B, 1.

[80] Carroll, supra, note 10, at 1254.

[81] At inception these media polls included Jeff Sagarin-USA Today, Dr. Peter Wolfe, Richard Billingsley, Colley Matrix, Kenneth Massey, Anderson and Hester, and The New York Times. Carroll, supra, note 10, at 1254 n. 110.

[82] Carroll, supra, note 10, at 1255. As Carroll describes, “This value is derived from the winning percentages of both the instant team's opponents and its opponents' opponents.”

[83] Id. The BCS defines a “quality win” as a victory over a team ranked in the Top 10 in the BCS Standings.

[84] Id. at 1256.

[85] Id. at 1256.

[86] Id. As Carroll describes, at-large selections were determined by the following criteria, “Teams from non-BCS conferences…automatically qualif[ied] for a BCS bowl game if they finish[ed] ranked in the top six in the BCS standings. The BCS bowls c[ould] also select any team that won nine games and [wa]s ranked among the top twelve…” Id.

[87] Schmit, supra, note 13, at 232-233.

[88] Id.

[89] Id.

[90] Id. at 233-34.

[91] Id. at 234.

[92] Schmit, supra, note 13, at 234.

[93] Id. at 235.

[94] Id.

[95] Id. Additionally under the new format Notre Dame, a historical independent, is guaranteed an at-large spot if it is ranked eighth or better in the final BCS standings.

[96] Id. Currently, the FBS conferences are in the midst of an evaluation period that began at the start of the 2008 season and will conclude in 2011. “According to BCS rules, the four-year evaluation is based on the ranking of the highest-ranked team in the final BCS standings each year, the final regular-season rankings of all conference teams in the computer rankings used by the BCS each year and the number of teams in the top 25 of the final BCS standings each year.” Graham Watson, Schools not expecting change, , Feb. 23, 2009, .

[97] Id.

[98] BCS, Alliance & Coalition Games Year-by-Year, (last visited Mar. 14, 2009).

[99] Id. No. 6 Utah defeated No. 21 Pittsburgh 35-7 in the 2004 Fiesta Bowl, No. 8 Boise State defeated No. 10 Oklahoma 43-42 in the 2006 Fiesta Bowl, No. 10 Hawaii lost to No. 5 Georgia 41-10 in the 2007 Sugar Bowl, and (as previously mentioned) No. 6 Utah defeated No. 4 Alabama 31-17 in the 2008 Sugar Bowl. See Utah secures perfect season with Sugar Bowl win over Alabama, supra, note 3.

[100] Id.

[101] Abercrombie, et. al., supra, note 8. Then President-Elect offered this mantra while appearing on 60 Minutes, a popular news and editorial program syndicated by CBS on November 16th, 2008. This wasn’t the first time Obama voiced concern over the Bowl Championship Series format. Speaking on the eve of the Presidential Election, as the Democratic Nominee on Fox Television’s Monday Night Football, Obama offered:

I think it is about time that we had playoffs in college football. You know, I am fed up with these computer rankings, and this and that and the other. Get eight teams. The top eight teams right at the end. You've got a playoff. Decide on a national champion.

Id.

[102] On the issue of Fundamental Fairness and the Bowl Championship Series (BCS): Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 108th Cong. (2003), available at: (statement of Steve Young); William Armsby, BCS is a political football in 2009, CNN, Jan. 8, 2009, .

[103] Armsby, supra, note 65.

[104] Carroll, supra, note 10, at 1239-40.

[105] See Bd. of Trade of City of Chicago v. United States, 246 U.S. 231 (1918).

[106] Carroll, surpa, note 10, at 1258.

[107] Associated Press, Utah AG: BCS May Violate Antitrust Laws, ESPN U: College Football, Jan. 7th, 2009, . Shurtleff qualified his statements by noting that “he prefers…BCS officials and university presidents solve the problem…by creating a playoff system, but…he's committed to doing whatever it takes to produce change.” Id.

[108] Armsby, supra, note 66.

[109] Id.

[110] House Bill 7330.

[111] Armsby, supra, note 66; BCS Standings – Dec. 7, 2008 [hereinafter “BCS Standings”], (last visited Jan. 20th, 2009). It is no surprise that personal team allegiances and regional home state biases motivate public elected officials to take action. To the extent the home crowd’s fans are fanatics, not doing so could be harmful politically.

[112] BCS Standings, supra, note 75.

[113] United States Senate, Active Legislation, 111th Congress (2009-2010), (last viewed Jan. 20th, 2009).

[114] H.R. 7330.

[115] Id. at § 2.

[116] Id.

[117] U.S. Const. art. 1, § 8, cl. 3; See Gibbons v. Ogden, 9 Wheat. 189-190 (1824) (“This power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.”). Id. at 196; Wickard v. Filburn, 317 U.S. 111 (1942) (Describing the scope of Commerce Clause jurisprudence).

[118] National Collegiate Athletic Ass’n v. Miller, 795 F. Supp. 1476, 1480 (D. Nev. 1992).

[119] Nev. Rev. Stat. § 398.155 – 398.255 (1991), invalidated by National Collegiate Athletic Ass’n v. Miller, 795 F. Supp. 1476, 1480 (D. Nev. 1992).

[120] 795 F. Supp. at 1481.

[121] Id. at 1482. Historically, the Supreme Court has found that “…even without implementing legislation by Congress [the Commerce Clause] is a limitation upon the power of the States.” Freeman v. Hewitt, 329 U.S. 249, 252 (1946). This so-called “Dormant” Commerce Clause power, works to limit “state interference with interstate commerce.” H.P. Hood & Sons, Inc. v. C. Chester Du Mond, 336 U.S. 525, 535 (1949).

[122] 795 F. Supp. at 1482.

[123] 564 F.2d 1136, 1150 (5th Cir. 1977).

[124] 795 F. Supp. at 1482.

[125] Id.

[126] H.R. 7330.

[127] 795 F. Supp. at 1482.

[128] Because we’ve identified a viable Constitutional base for Congress’s exercise of its regulatory authority, we can move on with our inquiry. Still, it is worth taking a brief moment to consider a potential alternative means of justification: Section 5 of the Fourteenth Amendment. Section 5 states that “The Congress shall have power to enforce, by appropriate legislation, the provisions of this [amendment].” U.S. Const. amend. XIV, § 5. If the NCAA’s deference to the Bowl Championship Series in FBS college football constitutes “state action,” it is possible that the BCS could be viewed as violating the equal protection clause found in Section 1. This is because the arrangement treats BCS conference members and non-BCS conference members differently; the champion of the former enjoys an automatic bid into a BCS bowl game, while the champion of the later must hope that it lands high enough in the BCS standings to capture an at-large bid.

There is a huge problem with this theory. The NCAA is not a state actor. In Univ. of Nevada v. Tarkanian the United States Supreme Court held that the organization “cannot be deemed to be a state actor on the theory that it misused power it possessed by virtue of state law.” 488 U.S. 179 (1988). The equal protection clause can therefore not be applied to its private organizational decisions. Still, a careful reader will note that Tarkanian was a close decision, handed down by a 5-4 majority. If the court changes its mind in the future, and finds “the NCAA act[s] jointly with [state universities] [when it takes action] and thereby also bec[omes] a state actor,” it is possible that Congress could use its Section 5 authority to justify future remedial legislation. Id. at 199 (White, J., dissenting). For now, however, Congress will have to stick with the Commerce Power.

[129] H.R. 7330.

[130] Id.

[131] Id.

[132] See supra, notes 11-14.

[133] Crowley, supra note 17, at 111.

[134] Although it is true that the courts, and not Congress, have probably played a more dramatic role in reforming the actions of the NCAA, our focus here is limited to legislative involvement. This, of course, is because my thesis considers whether Congress should intercept the Bowl Championship Series. For a history of judicial involvement, and speculation about the role courts might play in the destruction of the BCS see supra note 12. As a result, case law is only mentioned in this section to the extent it inspires legislative activity.

[135] 42 U.S.C. §2000a (2005).

[136] 20 U.S.C. § 1681 (2005).

[137] See, e.g., Nev. Rev. Stat. § 398.155 – 398.255 (1991), invalidated by National Collegiate Athletic Ass’n v. Miller, 795 F. Supp. 1476, 1480 (D. Nev. 1992). See also 42 U.S.C. § 1983 (2005).

[138] As Crowley offers, “Congress has periodically involved itself, through hearings and statutory action, both threatened and actual…Often enough, the threats did not materialize.” See Crowley, supra note 17, at 88.

[139] Title VI – Third Circuit Upholds Viability of Standardized Test Scores as a Component of Freshman Athletic Eligibility Requirements. Cureton v. Ncaa, 198 F.3d 107 (3d Cir. 1999), [hereinafter “Title VI Review”] 114 Harv. l. Rev. 947 (2001).

[140] Id.

[141] Id.

[142] Id. 37 F. Supp. 2d. 687 (E.D. Pa. 1999).

[143] 42 U.S.C. §2000d (2005).

[144] Crowley, supra note 17, at 98.

[145] Id. at 689.

[146] Cureton v. NCAA, 198 F.3d 107, 117 (3d Cir. 1999).

[147] Cohen v. Brown Univ., 101 F.3d 155, 167 (1st Cir. 1996).

[148] 465 U.S. 555 (1984)

[149] Title VI Review, supra, note 103, at 949.

[150] Id. at 949-50.

[151] Id. at 950.

[152] Id. at 947-48.

[153] See e.g., Kristin Rozum, Comment, Staying Inbounds: Reforming Title IX in Collegiate Athletics, 18 Wis. Women’s L.J. 155 (2003) (Noting “Title IX makes no specific reference to athletics.”)

[154] San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973). The Supreme Court applies a heightened form of scrutiny to the laws that affect these classes, recognizing that their interests might not be well represented politically. What is interesting about these cases is that it was Congress – and not the courts – that took remedial action.

[155] That being said some commentators have questioned the effectiveness of the Congressional fix:

Even under this new regulatory backdrop, Proposition 16's legal footing may not be as tenuous as the district court's uncontested disparate impact analysis seems to suggest. In future cases, institutions need not attempt to justify standardized test score requirements in terms of increasing student-athlete graduation rates. Instead, institutions should justify the requirements by defining their goal as protecting the academic integrity of institutions beset by a collective action problem that creates financial incentives to admit academically deficient student athletes. This justification finds its root in the NCAA Constitution itself, which characterizes its eligibility requirements as “assur[ing] proper emphasis on educational objectives, [promoting] competitive equity among institutions and [preventing] exploitation of student athletes.

Title VI Review, supra, note 103, at 951.

[156] Crowley, supra note 17, at 104.

[157] Steve Hargreaves, ‘War on Terror’ may cost 2.4 trillion, CNN , Oct. 4th, 2007, .

[158] Steven Mufson, Dollar Squeezed From All Sides, The Washington Post, Mar. 14, 2008, at D02.

[159] Watson, supra, note 96.

[160] See supra, notes 11-14.

[161] See BCS, Alliance & Coalition Games Year-by-Year, supra, note 99. In 2000, on Bowl Selection Sunday “three once-beaten teams were vying for a spot against the Sooners in the national championship game, Florida State, Miami and Washington. Miami had beaten Florida State during the regular season, and Washington had beaten Miami.” Florida State won where it counted: in the computers. In 2001, after a flurry of late upsets, “Nebraska edged once-beaten Pac-10 champion Oregon for the No. 2 spot in the final BCS Standings.” In 2003, “LSU, the SEC champion, edged USC for second place in the final BCS Standings to advance to the Sugar Bowl.” After defeating Michigan 28-14 in the Rose Bowl consolation contest, USC was voted the AP National Champion. Ken Peters, USC receives AP national championship trophy, USA Today, Jan. 5th, 2004, . In 2004, “[t]hree teams won BCS bowl games to complete undefeated seasons.” In 2006 Florida jumped an idle Michigan team with an identical record to play in the inaugural BCS National Championship Game. Finally, in 2008, one loss Oklahoma jumped one loss Texas, a team it had lost to in the regular season, to clinch the right to play for the title in Miami. Despite being the only undefeated team in the FBS, Utah was deferred to the Sugar Bowl.

[162] BCS officials to consider plus-one format, (last visited Mar. 14th, 2009).

[163] Id.

[164] Id.

[165] Id.

[166] New deals keep BCS bowl lineup intact, (last visited Mar. 14th, 2009).

[167] While drafting this Note, I considered recommending an “alternative plus one” approach arguing that rather than isolating the top four teams at the end of the season and seeding them to compete in semifinal and final contests, the BCS should strive to maintain its present selections system, which encompasses historical conference match-ups, and geographical considerations. In order to accommodate the 2006 modifications – and the extra two team spots they produced – the BCS should add a fifth regular BCS bowl – to join the Rose, Sugar, Orange, and Fiesta in a New Years Day or later timeslot.

After all conference champions and at-large bids are secured, the BCS Bowls would be played as normal. At the conclusion of all five games, the BCS would generate a postseason edition of the BCS Standings, using the current balance of subjective and objective inputs, much like the final edition of the rankings we have now. The No. 1 and No. 2 teams in the postseason edition of the BCS Standings would then be invited to compete in the BCS National Championship Game, at a site to be selected by the present “double hosting” rotation.

In order to understand why a rankings-based alternative is misguided, consider the 2008 postseason in light of an amended “plus-one” regime.

At the conclusion of the regular season, No. 10 Ohio State was tabbed to play No. 3 Texas in the Tostitos Fiesta Bowl, No. 6 Utah was selected to play No. 4 Alabama in the Allstate Sugar Bowl, No. 19 Virginia Tech earned the right to play No. 12 Cincinnati in the FedEx Orange Bowl, and No. 8 Penn State was assigned to play No. 5 USC in the Rose Bowl Game.

An amended match-up would modify these selections to incorporate No. 1 Oklahoma and No. 2 Florida. Because as champions of their respective conferences, the Sooners and Gators earned the right to play in their traditional BCS bowl sites (the Fiesta Bowl and Sugar Bowl), the new selections would look as follows: (At Large Selection) versus No. 1 Oklahoma in the Tostitos Fiesta Bowl, (At Large Selection) versus No. 2 Florida in the Allstate Sugar Bowl, No. 19 Virginia Tech versus No. 12 Cincinnati in the FedEx Orange Bowl, No. 8 Penn State versus No. 5 USC in the Rose Bowl Game, and (At Large Selection) versus (At Large Selection) in the new, fifth BCS bowl.

Using the current BCS Selection Procedures, No. 6 Utah automatically qualifies as champion of the Mountain West Conference “ranked in the top 12 of the final BCS Standings.” BCS Selection Procedures, supra, note 9. Despite finishing in the top 12 of the final standings, Champion of the Western Athletic Conference, No. 9 Boise State does not earn an automatic berth because the selection procedures provide that “No more than one such team from Conference USA, the Mid-American Conference, the Mountain West Conference, the Sun Belt Conference, and the Western Athletic Conference shall earn an automatic berth in any year.” Id. Because No. 6 Utah is “the team with the highest finish in the final BCS Standings,” it earns the automatic berth. Id. That being said, Boise State “may be eligible for at-large eligibility.” Id. Additionally, No. 3 Texas automatically qualifies as a team “from a conference with an annual automatic berth for its champion…ranked No. 3 in the final BCS Standings,” as does No. 4 Alabama, as a team “from a conference with an annual automatic berth for its champion…ranked No. 4 in the final BCS Standings.” Id.

This leaves us with one remaining at-large selection, which would be made following the procedures for At-Large Eligibility, namely any FBS team that is “bowl eligible,” “[h]as won at least nine regular-season games, and…[i]s among the top 14 teams in the final BCS Standings.” Id. Since “[n]o more than two teams from a conference may be selected” we cannot choose No. 7 Texas Tech or No. 13 Oklahoma State, as the Big 12 is already represented by Oklahoma and Texas. Id. This leaves us with four teams to choose from: No. 9 Boise State, No. 10 Ohio State, No. 11 TCU, and No. 14 Georgia Tech.

Although logic dictates we should select the team with the highest BCS standing, the Boise State Broncos, we already know that “lack of marketability” can be damning. See Schmit, supra, note 13, at 233-34. Here it is likely that a bowl selections committee would opt for the traditional power with a national following, the Ohio State Buckeyes.

Because, according to the Team Selection Procedures, the “rotation” priority for automatic and at-large selections was Orange, Fiesta, Sugar in 2008, the amended matchups would likely look as follows: No. 3 Texas versus No. 1 Oklahoma in the Tostitos Fiesta Bowl, No. 4 Alabama versus No. 2 Florida in the Allstate Sugar Bowl, No. 19 Virginia Tech versus No. 12 Cincinnati in the FedEx Orange Bowl, No. 8 Penn State versus No. 5 USC in the Rose Bowl Game, and No. 6 Utah versus No. 10 Ohio State in the new, fifth BCS bowl.

This arrangement simply won’t work. Although, it appears to restore Texas to a legitimate position as a national championship contender, it dangerously creates the opportunity for further subjectivity in the national championship process. If either a No. 1 or No. 2 team loses, the system creates a rankings black hole where victors will attempt to convince voters that their wins were “more substantial” than other victors’ wins. Because this is exactly the kind of suspect “off the field,” evaluation that haunts the current BCS, a rankings-based “plus-one” format cannot be the answer.

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download