Forget Utah; Alabama could be key to successful BCS antitrust suit
Utah attorney general Mark Shurtleff is trying to get DOJ to bring suit against BCS
Crux of anti-trust argument: no way a non-AQ team can ever play for title
Alabama can provide ammo if it hops non-AQ or if it gets shut out of title game
BATON ROUGE, La. -- The real BCS Buster will be in Salt Lake City on Saturday when Utah hosts TCU in a clash of undefeated teams, but Utah attorney general Mark Shurtleff will have one eye on the events unfolding in Tiger Stadium. Shurtleff, a University of Utah law school grad, will have an alum's interest in the Horned Frogs-Utes tilt, but the team that can best make his case will be playing 1,600 miles away.
Shurtleff wants to take the BCS to court. He believes it is an illegal cartel that violates the Sherman Antitrust Act, and he left a meeting this week in Washington with Department of Justice officials confident that the DOJ is seriously considering an investigation into the BCS. But to slam his point home, Shurtleff wants to assemble a coalition among his fellow state attorneys general to help nudge the DOJ. Shurtleff was close to building that coalition, but several of his willing colleagues got booted from office on Tuesday. So he'll begin building again.
And while everyone assumes he'll be watching TCU, Utah and Boise State -- the standard-bearers of the conferences without automatic qualifying spots in the BCS -- he'll also be watching Alabama play LSU.
The Crimson Tide, defending national champions and symbol of the college football establishment, can help Shurtleff make his case in one of two ways. The first is obvious. The second isn't, and it might seem illogical unless one considers the fact that Alabama is the nation's most passionate state when it comes to college football.
Shurtleff's perfect trust-busting storm begins with Oregon remaining undefeated and No. 1 in the BCS standings. Next, he needs Alabama to win its remaining games. That is no easy feat, considering the Tide have 7-1 LSU, 7-2 Mississippi State and 9-0 Auburn still on the schedule. If Alabama could pull off the run, it would knock BCS No. 2 Auburn from the ranks of the undefeated and put the one-loss Tide in an interesting spot. Shurtleff can best make his case if poll voters and computers vault Alabama over undefeated Boise State and the TCU/Utah winner and into the BCS title game against Oregon. Then Shurtleff could make with impunity statements such as the one he made Thursday.
"There is no way that a team from a non-AQ conference can ever play for a national championship," he told SI.com. "We think it was designed that way."
Idaho's attorney general probably would jump on board. If TCU is the aggrieved party, the AG from Texas might also be swayed. After all, Joe Barton, a Republican from Fort Worth, has spearheaded the anti-BCS movement in the U.S. House of Representatives, and the University of Texas football team was denied a chance to play for the national title in 2008 in part because of the BCS system.
Besides, it may not take much to convince the DOJ to act. Shurtleff was pleased with the turnout for his meeting in Washington. He said a number of assistant U.S. attorneys general attended as well as several staff economists. Shurtleff said the officials had done their homework, digesting his 75-page executive summary as well as compiling their own independent research.
Remember, the DOJ is a political animal. The U.S. attorney general is a presidential appointee, and the current administration is in dire need of an issue that unites both sides of the aisle following Tuesday's Republican tidal wave. Could the BCS be that issue? Maybe. "It's probably the only issue Joe Barton and Barack Obama agree upon," joked Matthew Sanderson, the co-founder of the anti-BCS political action committee PlayoffPAC.
The BCS responded to the news of Shurtleff's DOJ meeting with a familiar refrain. "It's hard to imagine a bigger waste of the taxpayer's money," BCS coordinator Bill Hancock said.
Here is one. The most conservative estimates of the television rights fees for an FBS playoff are about $400 million a year. The BCS brings in $125 million in annual rights fees. Is it a waste that more than 100 public universities leave hundreds of millions of dollars on the table every year because some of them want more control over where that money goes?
Shurtleff has a more prosecutorial rebuttal. "If there is a violation of the law, and if it is hurting taxpayer-funded institutions to the tune of hundreds of millions of dollars," he said, "then there is a duty to go forward."
But what if Shurtleff is wrong about the system? What if Boise State, TCU or Utah remains above one-loss Alabama and plays for the national title? Because he's really more interested in how the money gets distributed than in who holds the crystal football, Shurtleff has a plan for that, too.
If Alabama wins the remainder of its games, the Crimson Tide could make a convincing argument that they have the best résumé -- most quality wins, toughest schedule -- of any team in the nation. It's quite possible the Tide would have avenged their loss to South Carolina in the SEC title game. At the same time, one-loss Auburn -- for the moment, we'll ignore the off-field drama surrounding quarterback Cameron Newton -- also would be on the outside of the national title picture looking in. The wounds remain fresh from 2004, when the undefeated Tigers were stiffed by the BCS from playing for the national title because the SEC didn't enjoy the respect it does now.
If you thought it was tough to find an issue upon which Barton and Obama agree, try to find a football-related one upon which Alabama and Auburn fans agree. This would be it. Watching Boise State play for the national title while their one-loss teams sit idle would unite the Tide and the Tigers. As my e-mail inbox can attest, you don't want to make either fan base mad. Imagine them galvanized behind one issue.
Though it isn't as easy a sell as The Man (the AQs) keeping the Little Guy (the non-AQs) down, Shurtleff can make the case that the BCS isn't fair to anyone -- not to the Little Guy and not to The Man. He may find some takers with that argument if enough fan bases are sufficiently enraged.
But Shurtleff needs help, either from his fellow states and the DOJ or just from the DOJ. He said it is unlikely Utah could afford to do it alone. He also mentioned that because the University of Utah is about to join the Pac-12, the state could be in the awkward position of suing one of its own clients. He said this wouldn't matter, first because Utah State is a client and also because he believes his cause is just.
It's debatable whether an antitrust challenge to the BCS would even work, though. Writing in Street and Smith's Sports Business Journal in August, antitrust attorneys Gordon Schnell and David Scupp -- who are no fans of the BCS -- argued that "there is no real consumer harm at play." But in an article slated for publication in the Harvard Journal of Sports and Entertainment Law, University of Georgia law professor Nathaniel Grow argues that the BCS is susceptible to an antitrust attack on two fronts. Grow writes that the BCS could be subject to an illicit group boycott claim because it distributes revenue unequally and without justification. Grow also argues that the BCS could be attacked as an illegal price-fixing scheme.
If Shurtleff has his way, attorneys will make these very arguments in an actual case sometime in the next few years. But to get other states and the federal government involved, Shurtleff needs the teams, the poll voters and the computer rankings to make his case for him. So while Utah and TCU play Saturday for the right to remain in the national title hunt, Shurtleff will keep one eye on Alabama, the establishment darling that could give him the best chance to rock the establishment.
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