The Journal of the American Bar Association’s October edition contains a brief but provocative examination of the BCS’s status as an unlawful conspiracy. In the article, author John Gibeaut explains the history of the BCS as typified by controversy and exclusion. Mr. Gibeaut also discusses recent congressional calls for a Department of Justice investigation into the BCS’s illegal activities. Criticizing the BCS’s exclusionary formula, Mr. Gibeaut labels the BCS a “Formula for Confusion”:
[T]he automatically qualifying conferences, along with independent Notre Dame, effectively can lock in as many as nine of the 10 available places, no matter how well or poorly their teams played. WAC power Boise State, for one, missed out on a BCS bowl last season despite ending the regular season with a perfect record.
Furthermore, Mr. Gibeaut explains that some experts in antitrust law doubt the legality of the BCS:
To [NYC antitrust lawyer Barry J.] Brett, restrictions on who plays and the lopsided bowl paydays make for the classic violation of the 1890 Sherman Antitrust Act, which outlaws conspiracies to curtail competition or otherwise restrain trade. The act provides for triple damages and fines up to $10 million on the civil side, and up to three years in prison on the criminal side.
Mr. Gibeaut’s article offers an excellent introduction to this compelling aspect of BCS criminality. In the near future, Playoff PAC will offer exclusive legal content and analysis regarding the likelihood that a federal court will find the BCS, and/or its participants, to be in violation of United States’ competition laws. Generally, competition and antitrust laws prohibit agreements and practices that restrain free trade and competition. Many legal scholars, practitioners, and other holders of common sense agree that the BCS cartel creates an anti-competitive result via a system that harms participants in and consumers of the college football marketplace.
Since antitrust laws were promulgated in the late nineteenth century, the United States government has been repeatedly willing to repress harmful cartels. Frankly, Playoff PAC is bewildered by the stark dichotomy between this history of action, and the current status quo of apathy in the front of a facially anticompetitive agreement. As a part of its fundamental mission, Playoff PAC seeks to exert additional pressure on government actors strangely hesitant to perform their duties of evenhandedly enforcing competition law across all marketplaces, including college football.
Mr. Gibeaut’s full article may be read at: http://www.abajournal.com/magazine/illegal_procedure/.