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The Rivalry Scholar: Should Washington Intercept the Bowl Championship Series? Part II

(Ed. In case you just tuned in, I'm currently developing a 40 to 50 page "Note" to submit for publication in the Ohio State Law Journal on the anticompetitive implications of the Bowl Championship Series.  Part of my "peer review" strategy is to heap copious amounts of smoldering, unedited, text onto the site for you to digest.  If you haven't already seen it you can read my introduction here.  Today's installment details the NCAA’s unfulfilled organizational mission, and the myth of its non-profit platform.  If you're the kind of guy who swears he reads Playboy "for the articles," here's a chance to put your money where your mouth is.)


Ii. FAIR, SAFE, & EQUITABLE COMPETITION: THE NCAA’S INCOMPLETE MISSION

“They will have to wrestle it out of my cold, dead hands.”

- Dr. E. Gordon Gee, President, The Ohio State University (on the likelihood of a playoff in college football.)    

    
     By 1905, college football, in a crude and unadulterated form, was already a spectacle at private institutions on the East Coast, drawing giant traveling crowds – 43,000 fans filled Harvard stadium for that year’s contest with Yale.   Still, the core physicality – the daring, intensity that made the sport and its heroes fun to watch – also led to serious injuries and death.  From 1905 to 1916, some 370 players were severely injured, and 41 were killed from “body blows,” spine injuries, brain concussions, and blood poisoning.   
     Shocked by the rogue violence, and questionable kinesthetic value of the game, critics on faculty boards of control sought to discontinue the sport – to the natural “indignation” of students, alumni, and university regents.   In response, President Theodore Roosevelt called college athletics leaders to the White House to encourage reform.   That year, the Intercollegiate Athletic Association of the United States (IAAUS) was founded by 62 members.   The IIAUS was officially chartered as a discussion group and rules-making body on March 31st, 1906, taking its present name, The National Collegiate Athletic Association in 1910.   It administered its first national championship in 1921.  
     The modern NCAA lists its “core purpose,” as “govern[ing] competition in a fair, safe, equitable and sportsmanlike manner,” and, “integrat[ing] intercollegiate athletics into higher education so that the educational experience of the student-athlete is paramount.”   To these ends, the NCAA promotes intercollegiate athletics, administers national championships, and maintains integrity and standards of fair play.   Without question, these are important functions, and the NCAA tirelessly delivers on its promise to better university communities nationwide.  But economies of scale, like highly visible athletic profiles, are not without commercial intersection. 

A. The Myth of the Non-Profit NCAA

     Today, the NCAA enjoys the membership of some 1281 public and private institutions, comprising three full-fledged divisions in college athletics.   Admirably, the NCAA has worked hard to shield its amateur seedlings from the chill winds of commercial exposure.  But despite its best attempts, the seeds of college athletics have sprouted and flourished.  Recent reports suggest college football is the third-most popular sport in the United States.
     From inception, the NCAA has billed itself as a non-profit institution – and it is – but, this description should be taken with a grain of salt.   To see why, consider Hennessey v. National Collegiate Athletic Association.   Hennessey dealt with the organization’s adoption of a special Bylaw to limit the number of assistant football and basketball coaches certain institutions could employ at any given time.   To avoid running afoul of the regulation, The University of Alabama downgraded the employment status of several assistant coaches from full to part-time.   Not surprisingly, the demoted coaches filed suit challenging the validity of the Bylaw.  
     In the face of a potential violation of the Sherman Act, the NCAA was adamant in maintaining that it was “outside the ambit of the antitrust laws,”  as a “a voluntary, non-profit organization whose activities and objectives [were] educational and [were] carried out with respect to amateur athletics.”
     Although sympathetic to the “ameteurism of intercollegiate athletics,” the United States Court of Appeals for the Fifth Circuit rejected the NCAA’s self-proclaimed “blanket” immunity, offering that: "While organized as a non-profit organization, the NCAA and its member institutions are, when presenting amateur athletics to a ticket-paying, television-buying public, engaged in a business venture of far greater magnitude than the vast majority of “profit-making” enterprises. The NCAA has a multi-million dollar annual budget; and it negotiates and administers for itself or its members television contracts exceeding, for all sports, over $20,000,000 a year."  
     Today these numbers have risen exponentially.  In 2006-2007 the NCAA boasted $564 million in revenue, more than ninety percent of which ($508.3 million) came from television and marketing rights fees.   Because of the organization’s non-profit entity status, none of this money was taxed.   
     The case law and budget send a clear message: mainstay collegiate athletics have an obvious commercial thread.  Scholarly debate  notwithstanding, courts have “consistently applied [the Sherman Act] to amateur…entities like the NCAA.”   As Schmit observes any “general shield of immunity” the organization might have enjoyed “was pierced…when the NCAA gradually surrendered its amateur status for commercial endeavors.”   We will now turn our attention to the granddaddy of all endeavors: the BCS.

B. The Bowl Championship Series: History and Effect

     In describing a quintessentially American game, Sports Illustrated Columnist Stewart Mandel writes, “the depth of passion among college football fans is unlike that of any other…sport.”   Some historians have gone so far as to argue that the one hundred yard war, so derived as a positively colonial response to inherited British pastimes like rugby and football (soccer), developed on the heels of manifest destiny and America’s lust for control.
      Built on a platform of pride, power, and conquest, it is not surprising that “football is the NCAA-regulated sport that is both the most costly for a school to fund and the largest generator of revenue.”   To normalize the playing field among a wide-range of institutions, starting in 1973 the NCAA has divided its membership into three “legislative and competitive divisions:” I, II, and III.   In 1978 Division I College Football was further divided into two sub-divisions – I-A and I-AA – which have subsequently been renamed the Football Bowl Subdivision (FBS) and Football Championship Subdivision (FCS).   Football Bowl Subdivision schools are “fairly elaborate programs,” required to meet a minimum attendance requirement of “15,000 people in actual or paid attendance per home game.”   In 2008-09, 119 teams qualified to play in the FBS.  
     The FBS is further broken down into 11 independent conferences – voluntary associations created by member institutions to facilitate “efficiency in scheduling, fundraising, and other administrative tasks associated with collegiate athletic programs.”

1. Ships Passing in the Night: The FBS Postseason Bowl Format

     NCAA members aren’t deists, placed into a competitive arena and left to their own devices, instead, the organization plays an active role in the regulation of the sport and the administration of national championships: "For each of the NCAA's 88 championships, the governing committee and the national office produce a handbook describing the policies and procedures related to the event. The handbooks contain general policies applicable to all championships in areas such as advertising, media coordination and insurance, as well as information specific to the sport, including important dates, the process for selecting participants and on-site arrangements."  Eighty-seven of those handbooks, including FCS, Divisions II, and III college football, describe a playoff “championship,” with teams selected to form a “field,” that then competes in “first, second and quarterfinal rounds,” – a concentric process of single elimination that results in one final team standing: the national champion.
     The FBS does things differently.  Rather than determine its national champion through a playoff, qualifying teams participate in holiday post-season bowl games: one-shot contests held in marquis venues, hosted on location in major metropolitan areas.  Players enjoy the opportunity to compete against teams from different conferences – a regional diversification that allows them to interact with athletes and styles of play they might not otherwise encounter. 
     There are few sporting traditions that rival the uniqueness, color, and pageantry of college football’s postseason bowl format.  The earliest bowl game dates to 1894 when the University of Chicago invited the University of Notre Dame to play “to help generate civic support.”   The next postseason contest didn’t take place until 1902 when Stanford University played the University of Michigan in the inaugural Rose Bowl.   The modern bowl era was still three decades away, with the debut of the Orange and Sugar Bowls in 1935.   Today, there are 34 bowl games, giving 68 teams the chance to compete in the postseason.
     Bowl games are traditionally organized and managed as non-profit entities, which, like FBS conferences are operationally independent from one another.   This structure allows bowls the freedom to contract with conferences for the guaranteed placement of their champions.  Beginning in 1946, the Rose Bowl game has featured the champions of the Big Ten and Pacific Ten conferences.   Similarly, the Orange, Sugar, and Fiesta Bowls are obligated to feature the champions of the Atlantic Coastal, Southeastern, and Big Twelve conferences respectively.
     Because of the absence of a “last man standing” playoff, the FBS division has historically determined its national champion by vote.  Until 1998, two polls – one, the Associated Press (AP), composed of a consortium of sportswriters, and the other, the Coaches’ Poll, composed of certain FBS coaches, were the sole determinants of a team’s fate.   Each poll declared the team ranked No. 1 at the end of the season the national champion.   
     It’s easy to see how a comparative system that lacked the benefit of head-to-head results was susceptible to subjective intuitions, or loose preconceptions, about a team’s relative merits.   As Carroll describes: "The polls failed to provide a consistently accurate reflection of each school's abilities, and underlying prejudices of the voters, such as regional biases and groundless favoritism of certain schools, often skewed the polls' results. As a result, the two polls frequently conflicted with one another, and nearly one-quarter of the Division I-A seasons between 1954 and 1997 ended with “split” championships between two schools."
     In the 1990s alone, the national championship was “split” three times, including 1997’s shared title between the undefeated University of Michigan Wolverines – No. 1 in the AP Poll – and the undefeated University of Nebraska Cornhuskers – who finished No. 1 in the Coaches’ Poll.   At the end of the season Nebraska traveled to the Orange Bowl in Miami, Florida, where it defeated No. 3 Tennessee, 42-17.    Michigan, meanwhile, was dispatched to play almost 3,000 miles away in the Rose Bowl in Pasadena, California, where it bested No. 8 Washington State, 21-16.  In the end, there was no objectively concrete way to say which team was best.   They were two great, undefeated ships, passing in the night.