Sen. Orrin Hatch demanded to know, from sworn witnesses before the Senate on Tuesday, what else the undefeated 2008 University of Utah football team possibly could have done for a chance to play in last season's national championship game of the Bowl Championship Series.
U. President Michael Young, who attended the hearing, said that only one thing could have helped Utah: "If we had been part of an automatic-qualifying conference, I suspect we would have had an opportunity to play for the championship." But only half the nation's teams are in such conferences of traditional football powers. Utah is not.
University of Nebraska Chancellor Harvey Perlman, a member of the BCS oversight committee, said, "It's hard to respond to this without appearing to be disrespectful of Utah," but he essentially said the Utah school played a powder-puff schedule compared to teams in automatic-berth conferences.
"There is realistically something that Utah could do. They could have played the schedule that Nebraska played last year, where we played Oklahoma, Texas Tech and Missouri, all of them ranked in the Top 5," he said.
But Young shot back, "I do appreciate the tremendous football teams that Nebraska fields and wish that they were willing to play us." He added Utah played many ranked teams, that its Mountain West conference had the best inter-conference record in the nation, and three of its teams were higher ranked than some BCS conference champs.
The exchanges showed, in short, the arguments made for and against the BCS in a Senate Judiciary antitrust subcommittee hearing Tuesday.
The BCS argued that traditionally powerful conferences have earned the advantages it gives them. Representatives of Utah, the Mountain West Conference and Hatch said the BCS violates antitrust laws by blocking half the nation's teams — those outside automatic-qualifying conferences — from any realistic shot at a national championship.
"I would not be here today if all universities had a realistic opportunity to compete for the national championship and if the BCS revenues were equitably distributed among the institutions," Young testified. "However, those are not the facts."
He said universities from automatic-qualifying conferences designed the system to guarantee that they receive at least "nine of the 10 berths available in the most prestigious and lucrative bowls, known as the BCS bowls, regardless of their performance on the field."
He added that the worst, no-win team from those conferences earned more in BCS revenue last season than did the U., even though the U. beat Alabama in the Sugar Bowl.
Young said teams from automatic-berth conferences are the only ones, along with independent Notre Dame, that have "any realistic opportunity to compete for the national championship," because BCS ratings are largely popularity polls that favor teams in automatic-qualifying conferences.
"The BCS system effectively tells the world, and more importantly the pollsters, that non-AQ conference teams should be viewed differently because only the AQ conferences are worthy of an automatic bid to a BCS bowl," Young said.
Perlman testified that automatic-qualifying conferences have such advantages for a reason.
"Not every school in Division 1 is equal on the football field or in any other field of endeavor," he said, adding that a system to select a national champion could only be designed by those conferences that "consistently produce highly ranked teams."
"To secure the participation of these essential conferences, the system must provide revenue in excess of their other opportunities … must take into account any impact on the fans who provide their schools their support; must preserve the excitement of the regular season; and must honor the long-standing relationships they have had with the bowls," he said, and the BCS does that.
If the BCS were declared illegal and abolished, the teams in the automatic-qualifying conferences would likely snap up deals with all the big bowls and exclude teams from other conferences from them altogether, he said. The smaller conferences would lose money and TV exposure if that happened.
Antitrust attorney William Monts, testifying for the BCS, said the BCS has helped non-automatic-berth conferences by giving them some share of money they likely would not have had and giving them the possibility — although an outside one — of playing for a championship if they are ranked No. 1 or No. 2.
He also said that under BCS agreements, the Mountain West could become an automatic-qualifying conference itself in 2012 if over a four-year period — beginning last year — it has enough teams that finish in the Top 25, has a quality record against other conferences and all teams in the conference do relatively well.
But Hatch, R-Utah, said, "The Sherman Antitrust Act prohibits contracts, combinations or conspiracies to limit competition. I've said before that I don't believe a plainer description of the BCS exists."
Antitrust lawyer Barry Brett, testifying for the Mountain West conference, added, "The BCS offends everything the Sherman Act is designed to accomplish."
Hatch said he believes most fans want a playoff system, and he berated the BCS for not even considering one proposed by the Mountain West Conference.
Young said, "It's very hard to figure out what we do in a system that inherently is stacked against us." He says he realizes some big schools such as Nebraska may have advantages because of big budgets and tradition. "Those kind of constraints we understand. It's the systemic constraints" that are unfair and likely illegal, he said.
Hatch told the Deseret News earlier this week that he hopes the hearing may lead to an antitrust investigation into the BCS by the Justice Department. Also, a bill is pending in the House that could ban the BCS from describing any game as a "national championship" unless it results from a playoff.
Also, Utah Attorney General Mark Shurtleff has been studying whether Utah or other states should bring antitrust action against the BCS.
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