BCS doesn’t exist, but violates antitrust laws?
Fellow fans of “The Usual Suspects” will recognize this quote:
The greatest trick the Devil ever pulled was convincing the world he didn’t exist.
When it comes to college football, it’s almost the opposite. Everyone believes the BCS (ahem, devil) exists, but it really doesn’t, not legally anyway.
In this must-read article, Clay Travis of Fanhouse says the BCS never legally organized itself into an entity because it KNEW it violated antitrust laws. But if there is no organization to prosecute… how does one go about doing so?
My friends, the greatest trick the BCS ever pulled was convincing the world it DID exist.
1. The BCS doesn’t exist! I don’t know why this gets ignored so often. Per the written statement of the Mountain West attorney, Barry Brett: “The BCS is not a corporation or other entity formalized by filing in any jurisdiction. It is not a party to the proposed ESPN television agreement …The ESPN agreement states that the BCS is not a joint venture (i.e. “ESPN recognizes that there is no Bowl Championship Series entity or BCS entity).”
How astounding is this? We heap such scorn on the BCS, we know it exists, but as a legal entity, it’s a vacuum.
Why begin here?
Because the BCS lawyers are being crafty in setting up their cover argument. I guarantee someone was sitting around the conference table and said, “This is great and all, but how are we going to avoid antitrust scrutiny by pulling out six conferences from the overall NCAA football pool and making them richer at the expense of smaller conferences and schools?” And millions of dollars later, this was their solution. If an entity doesn’t exist it can’t violate the Sherman Act.
That’s smart from a legal perspective, but it doesn’t pass the eye test. If the BCS lawyers have cemented this figment to such a degree that ESPN doesn’t even acknowledge the existence of the BCS, shouldn’t this raise a red flag for the rest of us? What are they trying to avoid by their structure?
Being found to be doing exactly what they are doing, violating the Sherman Act.
So all this only matters if the non-existent BCS actually does violate antitrust laws. Travis’ article outlines in great detail and surprisingly easy reading how the BCS is in violation. Read the whole thing, it’s fantastic.
Here’s another snippet that I found particularly enjoyable because it addresses the question so many pose as to why Congress should interfere with college football.
Does the BCS as presently constituted violate United States antitrust laws?
It’s a simple question with a complicated answer, but after reviewing the submitted documents, the testimony of those called before the committee, and applying my legal education that set me back almost $150k (that I’m still paying off), I’ll give you an answer: Yes.
As a preliminary point, one of the best stories I’ve ever heard about the value of a legal education goes something like this. Someone takes the stage to speak to the graduating lawyers and begins, “Before you entered law school, if someone asked you a question about the law you could say with true sincerity, ‘I have no idea.’ Now, three years later, if someone asks you the same question, you can look them directly in the eye and say with great sincerity, ‘That depends.’”
The story gets at the complexity of legal analysis and how opinions can govern our own perception of what’s just. Even for lawyers, these can be difficult questions. That’s why I think so many of the articles that came out of Tuesday’s hearing focused on two main points of analysis, the tired arguments for and against a college football playoff and the rationale or lack thereof for Congressional analysis. This was summed up by ESPN radio host Colin Cowherd, “Let sports take care of sports,” he eloquently argued.
I’ll leave aside the first. I’m in favor of a playoff, but I don’t think the hearing before the Senate Judiciary Committee lends itself to another rationale for making the same argument that could be made any day of any month of any year. Many just used it as an excuse to opine on a playoff once more as the dog days of summer reach us. That opinion didn’t require any actual time. The second tack, that sports should be left alone by Congress, is more interesting. Because the only assumption that could justify the opinion is if sports aren’t a business. Cowherd and his ilk wouldn’t confront another monopoly by saying, “Let oil take care of oil,” or “Let banks take care of banks.”
[...]The reality is sports is big business, and if a sports entity is guilty of violating the Sherman Act, Congress has every bit as much interest in reviewing their actions as they would to look at oil companies, banking entities or, for that matter, the movie industry. A violation of the antitrust act by any industry in America today is an assault upon the fabric of commerce. A congressional hearing can shine a spotlight on a situation and make the BCS squirm in a way that no one else can. Not even the President.