Senate Antitrust Subcommittee Holds Hearing on Bowl Championship Series

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter.

The Senate Judiciary Committee's antitrust subcommittee held a hearing today on the fairness and antitrust implications of college football’s Bowl Championship Series (BCS). Senator Orrin Hatch (Utah), the Ranking Member on the antitrust subcommittee and a vocal critic of the BCS system, presided over the hearing, entitled “The Bowl Championship Series: Is it Fair and In Compliance with Antitrust Law?”

The BCS attempts to match the No. 1 and No. 2 teams within the bowl system to determine a college football champion. It also determines matchups in four other bowl games.

Some congressional lawmakers are calling for revising the system for determining a college football champion team. It has been suggested that a playoff system replace the way in which conferences and teams are selected for BCS bowl games.

University of Nebraska Chancellor Harvey Perlman, chair of the BCS Presidential Oversight Committee, defended the BCS system at the hearing. Perlman rejected the concept of a National Football League-style playoff system for determining the college football champion.

Also testifying was Michael Young, president of the University of Utah, whose 2008 undefeated Utes were denied an opportunity to play in the BCS national championship game. Young said that off-the-field agreements should not trump on-the-field performance.

Barry Brett, a partner in the New York City office of Troutman Sanders, represented the Mountain West Conference at the hearing. The Mountain West Conference, which includes the University of Utah, is one of the conferences that does not get an automatic bid to participate in the bowl games. Brett testified that the BCS system violates Secs. 1 and 2 of the Sherman Act. He contended that it limits output and consumer choice.

William Monts III, a partner at Hogan and Hartson in Washington, D.C., said that there was no output restriction resulting from the BCS system. He argued that a court reviewing the BCS systems under a rule of reason analysis would find that the system's several procompetitive benefits would outweigh the alleged anticompetitive, effects. Monts suggested that without the BCS, the old bowl system would return.