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The Rivalry Scholar - Should Congress Intercept the Bowl Championship Series?

For those of you who took note of my short absence from on the site, I spent the last week tightly sequestered in my small, Victorian apartment, hammering out and fine-tuning the final draft of my law review Note.  In between lukewarm sips of black coffee, and red-eye gleaming 2:00 a.m. bursts, I've come to a consensus, of sorts, on the fate the Bowl Championship Series.

And now I want to share it with you.  For the particularly masochistic, you can download the full text of the article (footnotes and all) here.

For everyone else, here's a short summary of my findings.

The Play on the Field is Still Under Review: Should Congress Intercept the Bowl Championship Series?

Believe it or not this question can be answered in a single sentence fragment: Congress can, but it won't, and it shouldn't

Need a bit more?  Here's the breakdown...

First, Congress has the power under the Constitution to enact legislation mandating a playoff.

  • The NCAA and its members are “significantly involved in interstate commerce": there's eighty-eight "annual NCAA championship events” staged across the country, requiring “the transportation of teams across state lines,” “bids involving hundreds of millions of dollars for interstate television broadcasting of intercollegiate sports events,” and the NCAA’s strict regulation of “collegiate recruiting” which takes place “on a national and even international scale.”

But it won't get involved.  Why?  Look at the history of Congressional intervention and the NCAA.

  • First, the Committee hearings that have taken place are often premised on the frustrations of individual members, or small groups of members whose home state teams have been slighted by the system.  That's not to say the harms the committee seeks to address are not real, it is just they rarely reflect across the board concerns.  
  • Second, Congress often “talks the talk,” but doesn’t “walk the walk;” publicly reprimanding the NCAA in chamber-rooms, or in press-appearances, but ultimately not “throwing a punch,” by delivering legislation. 
  • Third, when Congress has acted, it has usually done so indirectly, in the process of installing a larger social statutory scheme.  
  • Fourth, these schemes are usually designed to address compelling interests, correcting perceived inequalities in sex and race contexts.  When mere competitive imbalance is at interest (as with the BCS) Congress has stayed its hand. 

So we've got a convincing case for why Congress will not allow itself to be interjected into a private, competitive dispute.  But, why shouldn't it get involved?

  • First, federal antitrust laws are designed to address this exact kind of market behavior.  Is the case of the BCS so unique as to warrant extra-judicial relief?  While it is important, it is not.  
  • Second, Congress has “bigger fish to fry.”  In light of climate change, exhaustion of finite resources, trade and current account deficits, falling interest rates, and rising inflation,  Congress has complex subjects to address that affect our well being and civil order.  However troublesome, the Bowl Championship Series and its practical oversight are not issues that deserve the limited energy of our lawmakers. 

Now you know: although Congress can, it will not, and should not, attempt to fix college football. 

It’s also unlikely that any one program or conference will be willing to advance the resources to wage an antitrust battle.

But, change is still necessary.

  • Although commentators do not agree on whether or not the BCS is illegal, they all seem to recognize its inherent flaws.   At the top of the list is the system’s well-documented failure to produce an undisputed national champion.  In ten seasons of existence, the BCS has scrambled seven times to decide which of three or more qualified programs should be chosen to play for the title. 
  • So, wise guy -- what's the solution?

    • Glad you asked: I argue that the only way the NCAA can fulfill its joint mission of determining a national champion is by implementing a playoff in the Football Bowl Subdivision. 
    • I suggest a workable compromise between the NCAA and the BCS in the form of a modest, one-plus playoff
    • Implementation of a playoff by private contract will maintain integrity and standards of fair play, decrease multiple claims to the national title, and bolster public satisfaction in the legitimacy of the sport.  It will also eliminate the need for legal or legislative involvement entirely.

    Okay, it's your turn.  Did I get it right?