Sen. Orrin Hatch, R-Utah, asked President Barack Obama on Wednesday to order the Justice Department to investigate whether college football's Bowl Championship Series violates antitrust laws.
"Mr. President, as you have publicly stated on multiple occasions, the BCS system is in dire need of reform," Hatch wrote.
He said that after reviewing testimony from a Senate hearing on the BCS earlier this year, "I believe a strong case can be made that the BCS is in violation of the Sherman Antitrust Act. Therefore, I respectfully request that the Department of Justice's Antitrust Division look into this matter."
Hatch then outlined in a 10-page letter what he says is the legal case against the BCS.
Hatch noted that the champions of six "privileged" conferences receive automatic berths to play in one of the five big-money BCS bowl games each year. Excluded are five other conferences, which still have a chance at an at-large berth if they are ranked highly enough in several polls.
"Of the 10 available opportunities to participate in the BCS bowls, six have already been allotted to privileged conferences before the season even begins," Hatch wrote.
"However, for all practical purposes, nine of the 10 slots are ultimately reserved for the privileged conferences due to the selection criteria utilized by the BCS," he said.
For example, he said that last year both the University of Utah and Boise State University were undefeated. Only Utah played in a BCS bowl, even though Boise State had a better ranking and record than many "privileged conference" schools selected. And Utah was excluded from the BCS championship game, while schools with worse records played in it.
Because of such arrangements, "During the past four seasons, privileged conferences received more than $492 million, or 87.4 percent of the total BCS revenue," he said.
The nonprivileged conferences, accounting for about half of all colleges, split less than $62 million, or 12.6 percent of BCS revenue.
Hatch also argued that the system has essentially created two classes of college teams in the Football Bowl Subdivision — BCS teams for the privileged conferences, and non-BCS teams for everyone else.
"It has been argued that this false impression influences the decisions of pollsters, television networks and sponsors, ensuring inequitable treatment," Hatch wrote.
Because the BCS uses subjective polls to select teams for its bowls, "some evidence suggests that this false impression has led to a self-fulfilling prophecy that nonprivileged teams do not perform at the same level as privileged conference teams."
Hatch noted that the Sherman Act outlaws a "contract, combination … or conspiracy, in restraint of trade or commerce."
He said the BCS is exactly that, especially because "champions from the privileged conferences have been outperformed both on the field and in television ratings by one or more of their counterparts from nonprivileged conference. Yet, under the BCS system, such developments are irrelevant."
Hatch also noted that the Supreme Court has said, "when a product is controlled by one interest, without substitutes available in the market, there is monopoly power." Hatch said, "The BCS is the very definition of monopoly power" when it comes to crowning a college football champion, or choosing who will be in big money bowls.
Hatch acknowledged that "some may argue that the college football season is too trivial a matter to warrant government involvement."
But, he said, "Given the amount of money involved in the BCS endeavor and its close relationship to our nation's institutions of higher education, it is clear that the unfairness of the current system extends well beyond the football field."
Hatch added, "I do not believe we should lower the standards of legal and ethical behavior simply because a case involves collegiate sports. If anything, our nations should hold our colleges and universities to a higher standard than we would a purely commercial enterprise."
Hatch added that he "would prefer to see those with the power (in the BCS) to change the status quo voluntarily" without government investigations or legislation.
But because they have not acted, he said, "I am willing to support any reasonable effort to ensure that all schools, students and student athletes are treated fairly."
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