Tuesday, May 10, 2011

DOJ and BCS: Possible Endgames

Last week, the Department of Justice wrote a diplomatic but curt letter to the NCAA asking why the government shouldn't pursue antitrust charges against ... someone in college football (it's unclear what the NCAA has to do with all this, rather than the BCS). I've covered the potential antitrust issues before; on the whole I'm skeptical that antitrust claims will stick but I wouldn't bet my mortgage on it. 

For many people, that doesn't really matter. They see a government antitrust inquiry as a good in and of itself, because it will force the NCAA and the BCS to spend money defending itself, and at some point those entities might just decide that a playoff is more attractive than litigation. I don't have a lot of patience for this argument; at heart, it means filing frivolous lawsuits and wasting taxpayer money is acceptable if it means we get a few extra college football postseason games. If you believe BCS violates antitrust laws, claims should be pursued in court. If you don't really believe that, the justice system should be left alone. The DOJ has enough to worry about, and surely we can find better use for our tax money than strike suits.

All that aside, I can imagine several possible endgames from this inquiry:

  • DOJ declines to pursue antitrust claims; abolutely nothing changes in the BCS: This is still the most likely scenario. DOJ letters of inquiry are not a definite harbinger of future litigation at the federal level. Even Utah Attorney General Mark Shurteff has dawdled on bringing actual charges in a real court, and he has the poltical motivation and backing to do so. The DOJ won't have this motivation (or if it does, that motivation won't nearly be as strong). These are career attorneys with limited resources and few motivations beyond pursuing the strongest possible claims.
  • The DOJ pursues antitrust claims but loses in court; nothing changes in the BCS: Possible, but you do wonder what sort of stomach the major conferences will have for a fight. Litigation is expensive, though this case would be easier than your average antitrust case because it would be entirely about what the law means (is this system an antitrust violation?) rather than what the facts are, which everyone agrees upon.
  • The DOJ wins in court; the judge requires the NCAA to adopt a playoff: < 0.00000001% chance, and if it happens, it will be overturned on appeal. Judges don't like telling businesses how to structure their affairs. The most that will happen is the teams will be enjoined from any BCS-style system; even more likely, they will be enjoined from the BCS exactly as it exists and nothing else. But the court won't impose affirmative duties upon the NCAA or anyone else.
  • The DOJ wins, and the BCS is dismantled in favor of a playoff: the dominant variation on this theme is that because antitrust liability comes with treble damages, college football teams will have no choice but to adopt a playoff, because it would be so lucrative. I don't think this is plausible. First, I'm not sure there will be any monetary damages, even in a successful claim. Who is the victim? Mid-level teams and conferences, perhaps, though it is questionable whether their harm was monetary; were those teams better off in the pre-BCS system? Can they show that, in absence of the illegal BCS agreement, the other teams would have adopted a playoff? Those are tough, tough tasks. The other potential victims I've seen proferred, such as the fans who were denied the ability to watch a college football playoff, are borderline frivolous claims. At minimum, no monetary harm was suffered.

  • The DOJ case is brought, and the conferences say "screw it, we're switching to a playoff": decent chance, especially if other political pressure is applied. Blutarsky at Get the Picture brings up that Congress or other interested politicians could threaten other retribution, such as loss of tax-exempt status (possible) or, the ultimate red-button solution, threatening an end to government funding. This seems somewhat crazy--what will the normal folks who don't follow college football think about defunding colleges so that USC can play Northern Illinois in a first round playoff game?--but hey, politicians are crazy.
  • The DOJ case is brought, and the conferences say "screw it, we're switching to the old system": This is the truly Machiavellian move, and one that I haven't seen discussed. The case would be mooted; an injunction would just say "don't go back to the BCS," and monetary damages are unlikely for the reasons I set out above. And once there's an injunction, you can never go back; do small schools really want to take that chance?