Utah AG Files Antitrust Suit, Recruits Buddies for Adventure

In my last post, I discuss what antitrust means and how it pertains to the BCS. It's a long post, but in the end I come down on the side that the BCS probably doesn't violate the antitrust statutes, though I don't think it's an easy case either way.

I certainly didn't expect anything to happen on this front so soon, but I guess my sense of unwitting prognostication is quite keen:

Utah's attorney general is investigating the Bowl Championship Series for a possible violation of federal antitrust laws after an undefeated Utes team was left out of the national title game for the second time in five years. 

Attorney General Mark Shurtleff contends the BCS unfairly puts schools like Utah, which is a member of a conference without an automatic bid to the lucrative bowl games, at a competitive and financial disadvantage.

All of the articles on this announcement read the same, and they all read funny. Shurtleff hasn't actually filed a claim yet; he's just announced (again) that he's really serious about it. One article suggested that Shurtleff was looking to prosecute under state antitrust laws, but in federal court; he could do this but it would be a slightly awkward maneuver. One overwhelming problem with any sports/law article is that the people writing them tend to know about, at most, one of the subjects, so they either clip or jumble important information.

That important caveat aside, these stories haven't made the Utah AG look particularly brilliant:

Shurtleff said his office is still in the initial stages of reviewing the Sherman Antitrust Act to see if a lawsuit can be filed. To succeed in a lawsuit, he would have to prove a conspiracy exists that creates a monopoly.

He's said this dozens of times before. That's why I wrote the damn "BCS and the antitrust laws" post; politicians including Shurtleff have already discussed this before. You're still in the initial stages of reviewing? Really?

If a lawsuit is filed against the BCS, though, Shurtleff could end up suing the state he represents. Utah is a member of the Mountain West Conference and Utah State belongs to the Western Athletic Conference; both leagues are members of the BCS. 

"We have to determine the answer to those questions," said Shurtleff, whose planned investigation was reported by the Deseret News on Tuesday. "You determine who it is you're bringing action against."

This is a 15 minute research question. I don't understand what there is to determine. I can see two possible theories: either a suit against the BCS as a whole (essentially every FBS school) or against the six power conferences. I think he'd like to do the second for political reasons (he's not dying to sue Utah, Utah State, and BYU assuming the latter reaches an accord with the BCS), but the strongest antitrust argument might be against the first. But the former could be a silly victory. The BCS restricts Villanova's chance to win a National Championship?

Some of the info in another iteration of the story makes Shurtleff sound even worse:

Shurtleff, who is midway through his third term as Utah attorney general, says his suit will claim restraint of trade and "ask the judge to order some way to fix it. It's not my call on how to fix it, but I think clearly (it would be) to go to a playoff and eliminate the BCS."

Even if the suit is as successful as could possibly be, no federal judge will ever order schools to create a playoff. Judges are loathe to order injunctions that say someone has to do something; they'd rather just tell you to stop doing the bad thing. If the case is successful, the result will be an injunction to stop the BCS. Whether that results in a playoff, no championship game whatsoever, or a slightly altered BCS that removes whatever concerns the judge finds is anyone's guess. But that decision won't come from a federal judge.

He met with Justice Department officials in February, and says he preferred that they take the lead in the legal action. "They kind of suggested that, if the states started, they might follow," he says. "There's no guarantee of that."

Shurtleff is like that friend who always talks about how he wants to rent a Winnebago and drive across the country smoking pot with his college buddies, even though he's 37. Meanwhile, the Department of Justice is the crazy kid from the frat who settled down and became an accountant. They're on the phone one night, catching up on old times, and Shurtleff discusses his crazy plans, while the DOJ just chuckles and humors him. "Yeah, Mark, that would be pretty awesome. If you ever rent that trailer let me now bud, I'd totally think about it."

Actual law-talking guy with some much needed wisdom:

"If it was an open-and-shut, clear-cut violation, then you might think DOJ would be more interested," says Stephen Ross, a Penn State law professor and antitrust expert who once worked for the Federal Trade Commission and the Justice Department. "Beyond that, I think it's hard to read the tea leaves." 

Proving unfair business practices by the BCS won't be enough, he says. Shurtleff will have to show consumer harm. 

"It is possible that the Justice Department's failure to sue simply reflects the fact they believe that, politically, there's sufficient incentive for state attorneys generals to sue and they don't have to do the work and their resources can be better used elsewhere. It is also possible that, on the merits, they think they don't have a good case," Ross says. 

"It's also possible they think it's a close case on the merits and ... it's primarily designed to benefit college football fans of non-BCS conference schools and that it's hard to argue that is something the federal government ought to be spending its time and resources on."

Either the DOJ thinks the case is a loser, or they think it's close enough it's not worth pursuing, or they are waiting for Shurtleff to rent that Winnebago. Let's see if he actually puts down a deposit.