No Penalty on the Play: Why the BowlChampionship Series Stays In-Boundsof the Sherman Act

I. IntroductionWho needs college football?1 Given the rapidly increasing cost of maintaining a football program, many colleges are asking this question.2 Since the late 1980s, the average expenses generated by a Division I-A college football team have nearly doubled to over $6 million,3 causing several schools to question the viability of their programs.4 Revenues created by football, though, can be substantial.5 Indeed, a financially successful football program may fund itself and other athletic teams, thereby providing more students with the opportunity to compete at the collegiate level and producing an athletic program of an overall higher quality.6 Of more social consequence, profits generated by football can also provide a windfall for funding a university's academic programs.7 But not every college or university has the luxury of a program that can stand on its own.8Exponentially rising expenses have forced many schools to support their football programs with funds from the general budget9 while others have chosen to terminate football altogether.10 For those schools that decide to field football teams dependent on university support, every dollar allocated to an athletic department results in one less dollar available for the academic sector. This dilemma forces administrators to choose between fulfilling the school's academic mission, on the one hand, and satisfying alumni, students, and other supporters who crave success in athletics on the other. Consequently, a frequent problem presented to university decisionmakers is whether scarce resources should be used to build classrooms, upgrade laboratories, and pay professors, or if those resources are better used to buy shoulder pads, improve weight rooms, and hire more coaches.11Instead of treating the choice between football and academics as a binary one, some schools have approached the problem from a third angle. A group of college presidents currently trapped in this financial vise has banded together to circumvent the problem by blaming their football deficits on antitrust violations committed by other schools. This group, known as the Presidential Coalition for Athletics Reform (Presidential Coalition) and led by Tulane University President Scott Cowen, takes particular issue with the Bowl Championship Series (BCS).12 The BCS is an agreement among several football-sponsoring conferences, four postseason bowl games, and one television network that decides which eight schools will participate in those four college football games at the conclusion of each season.13 The financial rewards that the BCS generates are substantial-over $100 million from the four bowl games are distributed annually among Division I-A conferences14-but the schools represented by the Presidential Coalition have not been the primary beneficiaries of its fruits.15 As a result, the group has threatened to challenge the arrangement as one that unreasonably restrains trade in violation of federal antitrust legislation.16In the fall of 2003, the Presidential Coalition took its first steps toward an attempted dissolution of the BCS. The group appeared before the judiciary committees of both the United States Senate and House of Representatives and encouraged each to take a hard stance against the BCS.17 Arguing that the agreement amounts to little more than an unlawful group boycott by so-called "BCS conferences" against "non-BCS conferences,"18 the Presidential Coalition claimed that the schools it represents would be placed at an insurmountable competitive disadvantage if the BCS remains unregulated.19 Though the federal legislators seemed to agree with the position of President Cowen's group,20 the hearings concluded with a general understanding that Congress would not take remedial steps until the Presidential Coalition exhausted its alternatives to legislative intervention, the primary alternative being an antitrust suit.21This Note explains why an antitrust challenge to the BCS would be unsuccessful. …