(Ed. One of the more redeeming aspects of working on staff at a law review is the opportunity to present an original piece of legal scholarship, called a "Note," and compete for publication. As a staff editor on The Ohio State Law Journal, I'm currently in the process of writing the first draft of my article: The Play on the Field is Still Under Review: Should Washington Intercept the Bowl Championship Series? Because I think you'll find the topic interesting, I'd like to feature rough, unedited segments of the essay in bite-sized portions for your critical review and feedback. Please note I've omitted the footnotes to make things a little more straightforward. Hopefully this will inspire a good dialogue.)
I. INTRODUCTION
Out of the 119 teams that competed in the NCAA Football Bowl Subdivision in 2008-2009, just one finished undefeated: the Utah Utes. Yet, despite garnering a perfect 13-0 record and besting three Top 25 opponents – including a postseason thrashing of Alabama, a team that ranked first in the Bowl Championship Series (BCS) Standings for five consecutive weeks during the regular reason – the Utes were not named national champions. They weren’t even invited to play for the title. One-loss Florida, and (then) one-loss Oklahoma, the champions of the Southeastern and Big Twelve BCS conferences, were asked to play instead.
Florida went on to defeat Oklahoma in the FedEx BCS National Championship Game 24-14, in front of a record crowd of 78,468, capturing the sport’s coveted Coaches’ Trophy. But the Gators weren’t the only ones to win big. All six BCS Conferences, so-called because they possess automatic bids that guarantee the placement of their respective champions into super-lucrative BCS bowl games, collected $17.5 million dollar projected payouts for their appearances. Three BCS Conferences, the Southeastern, Big Ten, and Big Twelve, each placed two teams into BCS bowls, earning an additional bonus of $4.5 million.
By comparison, of the five non-BCS, or mid-major conferences only one, the Mountain West, placed a team into a BCS Bowl. The other three were forced to send their champions to lower-tier bowls like the International Bowl, the New Orleans Bowl, and the Poinsettia Bowl. With projected per team payouts ranging from $325,000 to $750,000, these lower entries result in dramatically smaller intakes for non-BCS Conferences from the top down.
In the decade since its inception, commentators have pointed to these kinds of economic disparities when evaluating the anticompetitive implications of the BCS. Some, citing the natural variance in talent and marketability between BCS and non-BCS programs have argued that the alliance stays “in bounds” of the Sherman Antitrust Act, rendering an antitrust suit meritless. This is especially true, it is argued, after recent concessions substantially increased the percentage of BCS revenues afforded to non-BCS programs beginning with the 2006-2007 season. Still, a good number of authorities argue the exact opposite: that the BCS is an imposter, a masquerading system that purports to place the top two teams in the country into a national championship contest, and in fact installs a powerful cartel that benefits only the elite and disrupts the ethic of competition, in violation of antitrust law and the core virtues of the NCAA. This is true even withstanding attempted modification.
Because ample time and scholastic effort have been devoted to considering the feasibility of an antitrust lawsuit, and further because no such lawsuit has yet occurred, this Note will assume, arguendo, that any attempt to bring a judicial challenge against the BCS under the Federal Laws of the United States will fail. This premise transports us into a far more novel territory: a consideration of what else, if anything, the Legislative and Executive branches can do to restore a competitive homeostasis to the FBS.
Part II will explore the NCAA’s unfulfilled organizational mission, and the myth of its non-profit platform as well as the economic history and effect of the Bowl Championship Series. Part III will discuss power and policy considerations surrounding potential Congressional intervention by chronicling the history of the legislative branch’s involvement in NCAA affairs, the structure of a Congressional remedy, and its likely effects. And lastly, Part IV will propose a workable compromise in the form of a modest, one-plus playoff regime, whose implementation I argue would preempt the need for legal or legislative involvement entirely.
This Note takes its title from Rule 12, Section 6(b) of the NCAA Football 2008 Rules and Interpretations that defines and discusses the use of Instant Replay, a controversial system which “utiliz[es] electronic means to review and assist game officials with certain on-field decisions.” Applied by analogy, the adoption of a standard of review shows the NCAA’s recognition of the importance of some measure of procedural due process to achieve “fair play” a fundamental token that is no less important in the competitive arena of collegiate sports than it is in everyday life.