Antitrust, Governance, and Postseason College Football

IntroductionThis Article examines the compatibility of the Bowl Championship Series (BCS) with federal antitrust law and the appropriateness of the federal government using its formal and informal powers to encourage a new format for postseason college football.Since 1998, the BCS has served as a self-described "five-game showcase of college football . . . designed to ensure that the two top-rated teams in the country meet in the national championship game, and to create exciting and competitive matchups among eight other highly regarded teams in four other bowl games."1 The teams that comprise this "showcase" are from colleges and universities in the National Collegiate Athletic Association (NCAA) Division I Football Bowl Subdivision (FBS), specifically the champions of six BCS-affiliated football conferences, and four other teams; the four other teams are from BCS-affiliated conferences, a pool of five non-BCS-affiliated football conferences, and the University of Notre Dame, which is not a member of any conference.2 Of the ten selected teams, the top two compete in the BCS National Championship Game, while the other eight play in one of four bowl games: the Fiesta Bowl, the Orange Bowl, the Rose Bowl, and the Sugar Bowl. Although there are over thirty other bowl games every year, the four BCS-sponsored bowls are undoubtedly the most popular and lucrative. 3Particularly given both the absence of other national championship games (or playoffs) for Division 1 football teams and the contractual obligation of coaches participating in the ranking of teams (i.e., the USA Today Coaches Poll) to recognize the winner of the BCS national championship game as its automatic national champion,4 the winner of the BCS national championship game is usually regarded by fans and media as "the national champion."5 This conferral is routinely made even though other college teams could, in theory, host their own national championship game or concoct their own playoff system and, if provided with the opportunity, perhaps defeat the "national champion."6In furtherance of its scheduling objectives, the BCS employs a sophisticated or, as some have charged, confounding,7 methodology of ranking teams. Each team's BCS ranking is a composite of three equally weighted components-the USA Today Coaches Poll, the Harris Interactive College Football Poll, and an average of six computer-based rankings, created and operated by private sports statisticians who employ proprietary formulas.8 Proponents of this complex system insist that it ensures the best teams match up in the college football postseason. 9 Their claim enjoys historical support-at least support from the history as penned by the BCS: in the fifty-six years before the BCS formed in 1998, the teams ranked number one and number two by the Associated Press only played each other eight times in the postseason; in the twelve years since, the teams ranked number one and number two by the BCS have played each other every time in the postseason.10BCS enthusiasts also maintain the system amplifies the value of regular season games: to earn a shot at a BCS-sponsored national title, a college football team normally has to win each and every week of the regular season, be it against top opponents or weak opponents.11 In other words, every regular season game counts, a phenomenon that has been credited with increasing attendance, interest, and financial investment in those games.12 A playoff system, in contrast, could enable an underperforming regular season team to wait until the playoffs to put forth their best effort and performance.13Although the ostensible purpose, if not the selection methodology, of the BCS is clear, the BCS itself evades traditional conceptions. To wit, although it is managed by an executive director, Bill Hancock, promoted by public relations expert and former White House press secretary Ari Fleischer, organized by the commissioners of the eleven NCAA FBS conferences and the director of athletics at the University of Notre Dame, and features an interactive website, http://www. …