I. INTRODUCTION

“Rise and Shout, the Cougars are out[2]” of the BCS, thus they have no chance to win a national championship. As the Brigham Young University Fight Song says, BYU and every other non-BCS school are barred from competing for a national title because they are not within one of the six elite BCS conference.

Under the current BCS regime, six football conferences, four bowls, and one network have essentially prevented all other football conferences and teams from participating in the product of the national championship game. Under the current established formulas, BCS schools are automatically qualified for a BCS game while non-BCS schools are practically barred from entry. With both horizontal and vertical arrangements occurring between specific bowls and conferences, the antitrust laws of the Sherman Act are significantly violated.

This paper will first address the history of the NCAA, college football bowl games, and the BCS. Second, Antitrust law will be explained. Finally, the BCS will be analyzed under the per se and rule of reason analysis while proposing lesser restricting alternatives of two playoff formats under new simplified ranking system.

II. OVERVIEW

A. The History of the NCAA

The National Collegiate Athletic Association (NCAA)[3] was formed in 1906 due to President Theodore Roosevelt’s concern over the high number of injuries and deaths in college football.[4] Along with establishing safety, the NCAA was developed to establish a consistent set of rules to prevent cheating and rough play.[5]

According to the NCAA, the mission and purpose of the NCAA is to maintain intercollegiate athletics as an integral part of the education program and the athlete as an integral part of the student body.[6] To fulfill this mission, the NCAA is guided by particular goals. Three of these goals are relative to this paper and the antitrust effects of the BCS. These three goals are: to promote intercollegiate athletics, administer national championships, and maintain integrity and standards of fair play.[7] Within the first goal of promoting intercollegiate athletes, the NCAA professes to “encourage participation in and support for intercollegiate athletics by celebrating the accomplishments of the student-athlete and promoting NCAA championships and college sports.”[8] By administering a national championship, the NCAA provides “student –athletes with opportunities to compete at the highest level of intercollegetiate athletics.”[9] Finally, with the goal of maintaining integrity and standards of fair play, the NCAA has the goal “to support effective institutional management and integrity in intercollegiate athletic through compliance with, and enforcement of, standards of fair play and appropriate conduct for student-athletes and institutional representatives.[10]

The NCAA consists of divisions I, II, and III.[11] Membership in each division is determined by the number of sports the school sponsors, the average attendance for home games, and the number of home games played.[12] College Football is unique to the NCAA, since it is further divided into two subdivisions: Division I-A and I-AA;[13] additional requirements are necessary for a division I-A school. This I-A division comprises of 11 conferences and seven independent teams.[14] Schools align themselves into conferences to facilitate more efficiently and to cooperate in scheduling, negotiating television contracts, and in other similar endeavors.

The NCAA has conducted national championships in various sports since 1921.[15] The NCAA administers 87 championships in 22 sports for its member institutions.[16] The NCAA has sponsored football championships in all three NCAA divisions for many years, excluding Division I-A.[17] Instead of a NCAA organized championship game, individual bowls invited specific teams to play in a post-season game. Though each bowl is independent from the NCAA, the NCAA established specific criteria and standards for post-season competition, but these requirements only involved a cooperative relationship and not a legal binding agreement.[18] Under the direction of the NCAA’s Special Events Committee, the NCAA developed bowl polices of minimal financial distributions among participating teams, team eligibility, officiating, game dates, number of ticket sales, and bowl names.[19]

Without NCAA administration for divisions I-A football, various post-season bowl games, polls (generated by sports writers, selected NCAA head football coaches, and computers), and recent affiliations have been used to determine a national champion. These arrangements of various opinions and biases of individual teams and conferences have led to the manipulation and corruption of college football. The current established hypothetical national championship scheme is the Bowl Championship Series, (hereafter the BCS). The legal aspects of the BCS, and other similar associations will be discussed later.

B. NCAA Division I-A College Football Bowl Games

Prior to the establishment of the NCAA, few college football bowl games were played. The first bowl game occurred on New Years Day 1894, when, in order to generate civic support,[20] the University of Chicago played the University of Notre Dame.[21] The next bowl game occurred in 1902 when the University of Michigan played Stanford University in the first Rose Bowl.[22] Various other bowls games have been created and disbanded throughout the years;[23] currently there are 25 bowls.[24]

As bowls became more financially successful, bowls became sponsored by an independent business and managed by an independent governing committee that selected the participating football teams.[25] With bowl sponsorship, the focus changed from rewarding the student-athletes to financially rewarding the successful corporation.[26] In 1990, the John Hancock Bowl[27] received an estimated of $5.1 million worth of advertising exposure in exchange of their $1.6 million sponsorship contribution. A representative from John Hancock said, “the bowl is an extraordinarily efficient media buy. It would cost us a great deal of more money to help influence sales by normal advertising.”[28] Today, every bowl has a sponsor, and these companies make payments to the bowl organization for permission to advertise with bowl logos and trademarks.[29]

Early on, specific bowls negotiated participation agreements with specific teams. Eventually these agreements spread to bowls negotiating multi-year contracts with certain conferences for a specifically ranked team. For example, the champions of both the Pac 10 and Big 10 were obligated to participate in the Rose Bowl.[30] Other bowls choose to remain free to negotiate with any team. This second process became essentially a bidding process where available teams would choose between multiple bowl invitations.[31]

With many conferences and teams tied to specific bowls, the problem of declaring a national title developed. Rarely did these vertical contracts[32] produce a national championship game of the two highest ranked teams, but instead the strongest teams were dispersed among multiple bowls. Under this independent bowl system, only nine times in 45 years did one bowl comprise the top two teams.[33] Since the top two teams seldom meet in a bowl game, the national title was often split between two teams; split championships occur when different recognized polls declared separate teams the national champion. By using only the Associate Press (AP) and Coaches Poll, since 1950 there has been 10 times in which the national title was split between two teams.[34] When using all recognized polls, the number of split champions increased to 44 times during the same period.[35] That is only seven times in over 50 years, where division I-A football had a consensus “national champion.”

There continues to be opposition within the NCAA to administer the post season of division I-A football.[36] The NCAA claims to be concerned with the potential negative effects: disruption of student-athletes, academic calendars, lengthening of the season, increasing the pressure to win, and the negative effect on the bowl games.[37] Despite most of these concerns, the NCAA’s Division I-AA, Division II, Division III, and other college athletic associations, namely the NAIA, have successfully established championship games through a playoff format amidst similar concerns.

C. The Establishment of the BCS: The Bowl Coalition and Bowl Alliance

Until the early 1990’s, the entire bowl process of selecting football teams was disorganized and often chaotic.[38] To remain competitive in attracting marketable teams bowls often selected schools prior to the conclusion of the season, frequently as early as mid-October.[39] In some situations, bowls made informal arrangements prior to the season with a particular team based on historical success or the notoriety of a particular coach.[40] These early selections frequently led to mediocre teams playing in historically attractive bowl games and rarely matched up the top two teams in the nation. Within the past decade alone, four different systems have attempted to create the marketable product of a true national championship game.

1. The Bowl Coalition

The current BCS is the heir of similar associations. The first organized attempt began in 1992 with the Bowl Coalition.[41] Under the Bowl Coalition, the champions of the Southeastern Conference (SEC), Southwestern Conference (SWC),[42] Big Eight ,[43] Atlantic Coast Conference (ACC)[44], and the newly created Big East[45] joined with the Fiesta, Cotton, Orange, and Sugar Bowls.[46] Under the Coalition, the champions of SWC would play in the Cotton Bowl, the SEC in the Orange Bowl, and the Big Eight in the Cotton while the Fiesta received two open bids. These four bowls than agreed to select other teams from among the champions of the ACC, Big East, the University of Notre Dame, and any additional teams that were “attractive and had completed their season with exceptional records to fill the remaining open slots.”[47] Though the Bowl Coalition could not guarantee a “national title game,”[48] after two years of a split title,[49] in 1992, the Coalition produced a national title game between Big East champion Miami and SEC champion Alabama, and again in 1993 between Florida State[50] of the ACC and Nebraska of the Big Eight.[51]

2. The Bowl Alliance & Super Alliance

With the success of the 1992 & 1993 seasons, and several bowl/conference contracts expiring after the 1994 seasons the Bowl Alliance was organized to improve the chances of a national championship game.[52] To establish a bowl base for the new Alliance, all NCAA-certified bowl games were invited to submit bids.[53] The Bowl Alliance selected the Orange, Sugar, and Fiesta bowls[54] on the condition that these bowls would relinquish their contractual obligations with their respective conferences.[55] Because traditionally successful bowls and conferences had to abandon their financially attractive relationships, the champions of the ACC, Big East, Big Twelve, and SEC received automatic bids to a Bowl Alliance game.[56]

In addition to the four conference champions, the Bowl Alliance had two “at-large” slots open to any team in the country with a minimum of eight wins or ranked higher than the lowest-ranked conference champion of the four Alliance conferences.[57] In selecting at-large teams, preference was given to Notre Dame, the non-champions of the Pac-10 and Big-Ten conferences, and the remaining members of the Alliance conferences.[58] However, if any at-large team outside the Alliance was ranked either No.1 or No.2, it was guaranteed a slot in the national championship game. Under the Alliance format, the mythical championship game would be rotated every year between the three Alliance bowls.[59] When an Alliance Bowl hosted the title game that bowl would get the first and second teams, and the remaining bowls were allowed to swap picks to attractively fill their games.[60]

To increase the success of producing a national championship game, in 1996 the Alliance expanded to become the “Super Alliance” by including the Rose Bowl and the champions of the Pac-10 and Big-10 Conferences.[61] Other arrangements were made with the Western Athletic Conference and Conference USA, in which participation fees were to be paid to each conference in the event that these conferences were underrepresented in the alliance.[62]

An important factor in the Bowl Alliance was the financial benefit of being selected to a Bowl Alliance game. In the 1996-1997 bowl season, the Alliance Bowls “paid out a total of $67.9 million dollars to eight teams, while the combined total from all non-Alliance bowl purses was only $34 million.”[63] These payments to participating teams were divided equally between the six participating schools, which than was further divided among the conference members of the schools. Independent schools were able to keep their 1/6 share.[64] For that year alone, “the total payout to Alliance schools for that same season was $95.9 million, while the non-Alliance bowl schools received $5.4 million in payouts.”[65]

D. The Current System: the Bowl Championship Series (BCS)

The next transformation into the BCS began in 1998, with the restructuring of the selection process of the national championship game and other significant games.[66] The BCS, which runs through the 2006 bowl season, consists of the of the same four bowls of the Super Alliance (the Rose Bowl, Sugar Bowl, Orange Bowl, and the Fiesta Bowl[67]) with each bowl hosting the national championship game every four years.[68]

1. Selecting Teams for a BCS Bowl Game

As with the previous bowl organizations, the champions of the ACC, Big East, Big Ten, Big 12, Pac-10, and the SEC are guaranteed participation in a BCS bowl game.[69] Though, this automatic selection of the original BCS conference champions is subject to review, and possible loss of automatic selection by the BCS, should the conference champion not have an average ranking of 12, or higher, over the past four years.[70]

As the non-championship BCS bowls select their teams from these conference champions, previous regional considerations are used.[71] In respecting former bowl affiliations, regional consideration include the ACC and Big East champions in the Orange Bowl, the SEC champion in the Sugar Bowl, the Big Ten and the Pac-10 champions in the Rose Bowl, and the Big 12 champion in the Fiesta Bowl.[72] These regional tie-ins may be avoided when:[73]

(1) the same team hosting the same BCS Bowl for two consecutive years;

(2) two teams that played against one another in the most recently completed college football season will be paired against one another in a bowl;

(3) the same two teams would play against each other in a Bowl game for two consecutive years; and

(4) an alternative pairing would have greater appeal to college football fans.

When a regionally tied in team is not selected and the BCS game needs to select a replacement team, that bowl can choose from the final BCS pool of eligible teams.[74] As previously stated, the pool shall first consist of the champions of the BCS conferences, and any team which won at least nine regular season college football games (not including wins in exempt games)[75] and ranked in the Top 12 of the final BCS standings. With the remaining two at-large spots, generally the BCS is not required to select any particular team, but in some instances, any at-large team may earn automatic selection. Those cases are listed below:[76]

(1) any At-Large team ranked No.1 or No.2 in the final BCS Standings shall play in the BCS National Championship Game. If both the No.1 and No.2 teams in the BCS Standings are At-Large teams, those teams shall play in the national championship game;

(2) any team from a non-BCS conference or an independent institution, which is ranked three through six in the BCS Standings, shall qualify for a guaranteed selection in one of the BCS games. If one or more teams other than Notre Dame qualify for automatic selection, Notre Dame shall also qualify provided it is ranked in the top ten in the BCS Standings or has a record of at least nine wins, not including exempted games;

(3) the Bowls shall select from those teams that qualify in (2) above should insufficient slots be available;

(4) if any At-Large slots remain unfilled after satisfying the criteria in (2) above; and the team ranked three in the BCS Standings is an At-Large team, then the team ranked three in the BCS Standings shall automatically fill one At-Large slot and shall play in one of the BCS Bowls;

(5) if any At-Large slots remain unfilled after satisfying the criteria in (2) and no at-large team qualifies for automatic selection under (4) above; and the team ranked four in the BCS Standings is an At-Large team, then the team ranked four in the BCS Standings shall automatically fill one At-Large slot and shall play in one of the BCS Bowls.

As seen above, the requirements to receive an automatic bid to a BCS game are significantly more stringent for non-BCS conference champions and independent school than for BCS conferences and schools. The non-BCS conferences (Mid-American, Mountain West, Sun Belt, Western Athletic, and Conference USA) and independent teams, excluding Notre Dame, will be guaranteed a slot in a BCS game only if their teams are ranked sixth or higher in the final BCS standings, unless more than two non-BCS teams meet these criteria. For if three or more non-BCS schools are ranked in the top six of the BCS standings, the BCS bowls will only choose two teams from that group. In comparison, at large teams within the BCS conference only needs to be ranked anywhere in the top 12.

2. How the BCS ranks Division I-A Schools

The National Football Foundation and College Hall of Fame have compiled the BCS standings since the 2000 regular season.[77] The ranking system consists of five major components: subjective polls of the writers and coaches, computer rankings, schedule strength, a team’s record, and quality wins versus top 15 ranked teams in the weekly BCS standings.[78] As stated above, the two teams with the lowest point total in these categories will play in the national championship game.[79]

The poll component is based on each team’s average ranking in the AP poll and the USA Today/ESPN Coach's poll.[80] The ranking for each team in both polls is added and divided by two.[81] For example, a team ranked number three in one poll and number five in the other poll would receive 4.0 points in this component. (3+5 = 8/2 = 4.0).

The second component consists of eight computer rankings, which are published in major media outlets. The computer rankings are: Jeff Sagarin[82] (published in USA Today), the Seattle Times (Jeff Anderson/Chris Hester),[83] Dr. Peter Wolfe,[84] Richard Billingsley,[85] Wes Colley,[86] Kenneth Massey,[87] David Rothman,[88] and Matthews/Scripps-Howard.[89] The computer component will be determined by averaging the six intermediate computer rankings, disregarding the highest (best) and lowest (worst) rankings. For example, if a team is ranked first in four polls, second in three polls and third in another, one of the rankings in which the team is ranked first and the ranking in which the team is third will be disregarded and the remaining six polls will be added and divided by six. (1, 1, 1, 2, 2, 2 = 9/6 = 1.50).

The third component is the team’s strength of schedule, and is calculated by determining the cumulative won/loss records of the team’s opponents and the cumulative won/loss records of the teams’ opponents’ opponents.[90] The formula shall be weighted two-thirds (66%) for the opponent’s record and one-third (33%) for the opponents’ opponents record. The team’s schedule strength shall be calculated to determine in which quartile it will rank: 1-25; 26-50; 51-75; 76-100 and shall be further quantified by its ranking within each quartile (divided by 25).[91] For example, if a team’s schedule strength rating is 30th in the nation, that team would receive 1.20 points. (30/25 = 1.20).

The fourth component is the team’s record. This component shall evaluate the team’s won/loss record. Each loss during the season will represent one point in this component.[92]

Finally, the quality win component reduces a team’s BCS ranking by a sliding scale for victories against opponents ranked among the top 15 in the weekly BCS standings.[93] A defeat over the number one rated team is a reduction of 0.15 points, while a defeat over the number 15 rated team is a reduction of 0.01 points. For example, if Ohio State beat the number one rated BCS team, Georgia, Ohio State’ BCS point total would be reduced by 0.15 points. If a team defeats a top-15 BCS team twice in one season, the victorious team shall receive quality win points only once.[94] If a team fails to remain in the top 15, any team that beat them does not continue to receive the quality win component. In the above example, if Georgia fails to remain in the top 15, Ohio State will not earn the quality win reduction. But, If Georgia returns to the top 15, Ohio State will again be given back its reduction of 0.15.

To calculate the standings, all five components shall be added together. The team with the lowest point total shall be ranked first in the BCS Standings, the second lowest will be ranked second, and so forth;[95] these two top teams then meet in the championship game. Under the structure of the BCS, the national championship has gone to Miami in 2001, Oklahoma in 2000, Florida State in 1999, and Tennessee in 1998.[96]

An initial increased television audience represented an early success of the BCS. In 2001, the four BCS Bowls combined to reach a record television audience of 127 million viewers. The average attendance for the games was 77,765. Overall, attendance for all bowl games increased 7.6 percent to 1,291,557.[97]

3. Financial Benefits of BCS Participation

As with the previous Bowl Alliance, the participating institutions receive a substantial financial payout by playing in a BCS Game. Under the current BCS format for the 2001-2002 season, the BCS participants received between $11.78-14.67 million depending on the conference affiliation of the at-large participants.[98] Should the at-large participants come from outside the original BCS conferences those participants will receive $11.78 million.[99] If one or both at-large selections come from within the original BCS group, the first conference participant shall receive $11.78 million and the second participant from that same conference shall receive $6 million.[100] This was different from previous BCS seasons, where all participants, regardless of if other schools were participating in a BCS game, received the same financial payout. The total money received is than split among all the teams within the team’s conference.[101]

E. What is Antitrust Law

Modern antitrust law commenced in 1890 with the passage of the Sherman Antirust Act.[102] This Act protects and promotes the competitive process of the American open marketplace by maintaining an opportunity for market access and promoting market rivalry.[103] Essentially, the first section of the Sherman Act prohibits acts by two or more people that restrain trade in interstate commerce, while the second section bars monopolistic activities.[104] With monopolies, the most distinctive feature of a monopolized market is a barrier of entry.[105]

In bringing an Antirust case, the courts will first determine if there is standing. Standing arises out of section four of the Clayton Act.[106] To determine if the plaintiff has standing, the courts will ask three questions. First, is the plaintiff a person under the meaning of section four? Second, has there been an injury to the plaintiff’s business or property? And third, and most complicated, did the injury arise “by reason of” the antitrust violation?[107]

Once a potential antitrust claim has been raised, and standing exists, the implication is analyzed under either the “per se” or “rule of reason.”[108] Under the per se analysis, activities are condemned as a matter of law, without inquiry into their reasonableness, because the substantial likelihood that such activities are anticompetitive.[109] This strict approach has been used in “situations where the practice facially appears to be one that would always or almost always tend to restrict competition and decrease output of a product.”[110] The Supreme Court has ordinarily reserved the per se approach to those instances involving price-fixing,[111] tying arrangements,[112] division of markets,[113] and group boycotts.[114] A group boycott occurs when several competing entities agree to isolate others.[115] Upon showing of a per se violation, liability is automatic, and the court then determines the loss suffered by the plaintiff. Another factor in regards to per se violations is the type of restraint. Horizontal restraints, which injure competitors at the same level of production are more frequently treated as per see illegal.[116] Vertical restraints, which generally only affect parties at different levels of production from the violation, are generally treated under the rule of reason.[117]

The Supreme Court first defined the rule of reason approach in Board of Trade of City of Chicago v. United States.[118] When the violation is not patently anticompetitive, the courts are required to evaluate the effect of the behavior on the competitiveness of the market by the rule of reason analysis. In discussing the rule of reason analysis, the courts developed a three-prong test.[119] First, the plaintiff bears the initial burden of showing that the restraint creates actual anticompetitive effects. These anticompetitive effects can occur when an “agreement concentrates market power to participants in such a way as to eliminate competition, and can be evidenced by higher than competitive prices, lower than competitive quantity or quality of goods, or both.”[120] After the plaintiff has proven anticompetitive effects, the burden shifts to the defendant to show that the challenged anticompetitive effects create procompetitive benefits.[121] If the defendant can prove procompetitive benefits, the burden shifts back to the plaintiff to show that the “particular restraint is not reasonably necessary to accomplish the stated goal,” or that the same benefits could be obtained through a lesser restrictive means.[122]

III. HOW THE BCS VIOLATES ANTITRUST LAW

With a careful review, it is clear that the BCS violates antitrust laws. Under antitrust law, “anytime we see a group of competitors, such as the conferences, agreeing with each other instead of competing with each other, that is a potential antitrust problem.”[123] In the area of sports, antitrust issues arise in sports leagues, professional or amateur, when owners, school presidents, or conference commissioners make agreements amongst themselves that result in uncompetitive activity.[124] Within the BCS, these types of arrangements are occurring.

In this paper, I will not specifically address the standing issue, but will address the issues of antitrust of the BCS under the per se and rule of reason analysis. First, I will evaluate under the per se analysis the horizontal contracts within the BCS’s that create artificial barriers of entry for non-BCS teams. Second, under the rule of reason analysis, I will examine the vertical contracts between BCS conferences, teams, and networks that eliminate competition in the overall sale of regular season and post-season Division I-A football games, which reduces the over quality and product of college football. To encourage productivity and competition, under this analysis, I will present two lesser restrictive alternatives to the BCS.

A. Per Se Analysis

The first approach in studying the antirust issues of the BCS is under the per se analysis. Though the Supreme Court disfavors using the per se analysis, the lenient rule of reason approach “is inappropriate where the purpose of the regulations is to eliminate business competition.”[125] Per se review would be especially evident “where the underlying facts demonstrate that business-minded entities acted with the clear intent to exclude [non-BCS] bowls and [non-BCS] teams from multi-million dollar opportunities.”[126]

The apparent boycott of non-BCS created by the BCS warrants per se analysis.[127] “The hallmark of the unlawful ‘group boycott’ is the effort of the competitors to barricade themselves from competition at their own level.”[128] Within the horizontal agreements of the BCS a boycott, and thus a monopoly, has been created. The BCS is “an illegal restraint of trade an illegal conspiracy to monopolize.”[129] In essence, the BCS boycotts nearly 50 NCAA Division I-A college football teams from competing for a national championship.

Based on the current BCS format, a team’s ranking is based on the combination of the AP Poll, ESPN/USA Today Coaches Poll, other various computer polls, each team’s strength of schedule, each team’s number of losses, and a quality win component. One of the major barriers of entry is a team’s strength of schedule. To prevent the access of non-BCS schools, BCS teams can beat any team, while non-BCS teams have to beat only highly ranked BCS teams. The following hypothetical, will demonstrate this point. First, if undefeated Florida State University, a BCS school, beats a winless Duke University, another BCS team, Florida State’s strength of schedule is improved. But, if an undefeated and non-BCS Brigham Young University (BYU) team beats a winless University of Wyoming, another non-BCS team, BYU’s strength of schedule is hurt. The difference between a victory over Duke and Wyoming occurs because Duke loses the majority of its games to BCS teams while Wyoming loses the majority of its games to non-BCS games. So, since every non-BCS school plays the majority of its games against other non-BCS schools, non-BCS school’s strength of schedule continue to be sub-par. Even if a non-BCS team played a majority of BCS schools, their strength of schedule would still prevent access to the BCS. For example, if BYU played BCS opponents Miami, Florida, Tennessee, Nebraska, Duke, Vanderbilt, Oregon, Colorado, and California and non-BCS opponents Navy, Idaho, and Houston, BYU would still have a strength of schedule of 91^st,[130] a schedule to “weak” to ever be able to participate in a BCS bowl game. Though the strength of a team’s opponents is a factor in determining a team’s ability, it should not be the decisive factor. A team schedules its opponent’s years in advance, and has no control over how those teams will play in any given year. If a non-BCS teams schedules three BCS conference champion eight years in advance, and eight years later, these same BCS teams had a poor year; these non-BCS teams are criticized for having a weak schedule. The fact that in every year of the BCS existence, a non-BCS had a significantly better win-loss record over several BCS teams playing in a BCS game is evident that the BCS boycotts non-BCS teams.[131] Despite what the BCS claims, the BCS will continue to benefit only BCS teams for playing weak opponents within a BCS conference, and hurt non-BCS teams for playing teams not ranked high in the BCS.

These BCS conferences believe that any team in their conference is a significantly stronger football team than any non-BCS team, since non-BCS teams never play a challenging schedule, and can easily go undefeated by playing only non-BCS teams. Though, in the past eight years, statistics have shown that it is actually more difficult to obtain an undefeated regular season in a non-BCS conference. Since 1994, there have been 16 undefeated teams from the BCS conferences, and only three undefeated teams from the non-BCS conferences.[132] The BCS coalition has 53% of the Division I-A teams, and 84% of the undefeated regular seasons.

Statistically, a non-BCS undefeated season is not a common occurrence and should not be punished. This punishment was seen recently in 1998 and 1999, when Tulane and Marshall respectively went through their entire season undefeated and were still denied access to a BCS bowl. In addition, the average record per conferences is rather similar. For example, the average record in the 2001-2002 season for a Big 12 school was 7-5, while the Big 10 and non-BCS MWC were both 6-6.[133] At worst, the MWC averages one less victory then the best BCS conference, but this one additional loss should not be significant enough to prevent access to a BCS game.

Another factor that boycotts non-BCS teams are preseason polls, because these polls are consistently biases toward BCS teams,[134] and are detrimental to teams poorly ranked prior to the season. To qualify for a BCS spot, each team must be rated high in both polls. Without even playing a game, by not being ranked in the Preseason, a team is barred from national championship consideration.[135] Despite an undefeated season, Marshall and Tulane both were prevented from playing in a BCS bowl games because they began the season unranked.[136] The fate of a product should not be determined prior to its introduction into the market. Each football team must be given the same opportunity to play in national championship each year. Prior records are in the past and should have no barring on present circumstances. Though a previously successful product has earned a particular name in the market, this name does not guarantee its continued success. The product of a college football post season should be only subject to its subsequent regular season; prior seasons should not be considered. A championship should be earned on how that team played each game this season, not on how they previously played.

Because of these factors, the access to a BCS game for a non-BCS team is nearly impossible. For example, toward the conclusion of the 2001 season, BYU was 12-0, with one game remaining in the regular season. Despite being one of two undefeated teams, ranked 6^th in the AP and Coaches Poll, and 12^th in the BCS poll the BCS intentionally eliminated BYU from BCS consideration regardless of the outcome of their season finale. During that season, BYU played 14 games, eight coming on the road; both statistics were the highest in the NCAA.[137] Though BYU eventually lost their final regular season game against Hawaii, and to Louisville in the Liberty Bowl, the fact that “some blazer-wrapped bowl ‘scout’” barred BYU from the BCS proves that non-BCS teams are boycotted from BCS contention.[138] “A football champion should be a team that has won football games, not computer games or accident-of-birth games or smoked-filled-room games. The Bowl Championship Series simply gives a free pass into the finals to two teams with which it has a business relationship.”[139]

One major problem with restricting the access of non-BCS teams is the financial deficit in not participating in a BCS organized game. As previously stated, each BCS conference is guaranteed participation in a BCS game, and the roughly $14 million payout from each BCS bowl. Because of the BCS’s guaranteed millions to BCS teams, in past two years, BCS conferences have received $290,900,000.[140] If divided evenly between all 63 BCS teams, each BCS team roughly received $2,308,703 a year from their conference participating in a BCS game.[141] Comparing this to the non-BCS conferences, the non-BCS conference received $21,550,000 in the past two years, which relates to about $199,537 per non-BCS team per year.[142] That correlates to over $2,100,000 more per year that a BCS team receives, no matter what their record is, than a non-BCS team, just for being apart of a BCS conference.[143] “Since the BCS payout deficit averages $2,100,000 per year, and since this rigged game has been going on for [four] years under the BCS/Taliban regime, that works out to roughly $8,400,000 deficit per non-BCS team.”[144] Or, by this example “each time a BYU play a Cal or Mississippi State, the other team has received about $8,400,000 more in bowl payout on average over the previous [four] years.”[145] With an average deficit of $8,400,000 per non-BCS team, these 54 teams have received a total $420,000,000 less than BCS schools in the past four years.[146]

As seen in Attachment B, because of the BCS many states have a significant financial deficit in respect to money given to football teams. For example, in total, the non-BCS schools in Texas and Ohio have each lost nearly $55.5 million over the past fours. Other significant loses are seen in Louisiana, Michigan, California, Tennessee, Utah, Florida, and Alabama.

By intentionally excluding certain teams and conferences from the guaranteed structure of the BCS, non-BCS schools are greatly disadvantaged. The disparity in the revenues received by the BCS and non-BCS conferences will create an insurmountable obstacle to overcome. The lack of financial balance significantly affects the talent each team can recruit, the amount of additional money needed for facilities, improvements, and the potential salary of a coach. In addition, the financial differences will lead to decreased output of the entire NCAA college football. These issues will be discussed in full detail under the rule of reason analysis.

As seen above, the BCS has significantly hindered the access to a BCS game, specifically the market for the “national championship game” by creating artificial barriers of entry. Under the current system, a non-BCS team can never be admitted to a BCS game. Without an adequate access, the BCS is in fact boycotted nearly 50% of all NCAA division I-A teams. The BCS is intended to benefit only the BCS conferences and BCS teams, while restricting all non-BCS conference and non-BCS teams. Under this analysis, the BCS arguably fails.

B. Rule of Reason Analysis

The BCS also fails under the rule of reason analysis. Though the BCS will attempt to refute anticompetitive effects by arguing of the benefits of their national championship game, this neither compensates for the loss of competition among the non-BCS teams, nor is the BCS’s least restrictive means of accomplishing that presumed benefit.

1. Anticompetitive Effects

Under the rule of reason, courts first require the plaintiff to show significant anticompetitive effects. Anticompetitive effects are injuries to consumers from an “increase in the market power that the targeted agreement creates for its participants by reducing or eliminating the competition among them. Such injuries often take the form of higher than competitive prices or lower than competitive output levels or product quality.”[147] Because of the BCS, injuries in college football occur with the reduction of output and quality of both regular season and post-season bowl games.[148]

The effects of the BCS restructure college football into two classes. This two-tiered status reduces the product quality and output of college football, and specifically injures non-BCS teams in several ways. First, recruiting will suffer. Since there is unequal opportunity for participation in the BCS, each team in the “six participating conferences know that every year, they will have at least one representative, if not two, in the most prestigious bowl games, playing during the most visible times of the holiday season, guaranteeing conference exposure.”[149] This guaranteed exposure benefits the entire conference and gives individual BCS teams additional leverage for recruiting higher rated players. Recruits know that by playing for a BCS team, they have a guaranteed opportunity of playing in this arena of exposure every year by only winning their conference. But, even if their team does not reach a BCS game, recruits know that at least one team from their conference will participate in a BCS game, thus improving the exposure of the entire conference. Coaches from non-BCS conferences instead have to tell the same prospects, that to receive that same exposure, their team would have to be ranked in the top six of the BCS. This obvious recruiting advantage becomes a self-fulfilling prophecy; “[t]he teams outside of the agreement will not be going to prestigious bowls because they are not as good, but the reason they will not be as good will be due to the system that the teams in the BCS imposed upon them.”[150] This recruiting issue is evident in the 2002 recruiting class when only one non-BCS school had a top 25 recruiting class, which was BYU with a rank of 22.[151]

In addition to the injuries of recruiting, the BCS creates financial injuries to all non-BCS schools. As explained under the per se section, with an extra $2 million per year, BCS schools are able to provide better facilities, equipment, and coaches. “You spend money to make money. Football is the cash cow. If you are in the BCS and making these revenues, it makes sense you are going to pay your football CEO $1 million or more.”[152] Currently, the top 14 salaries of college coaches are all within BCS schools.[153]

Unlike BCS teams, non-BCS teams often lose money by attending non-BCS bowls. The money received through conference sharing rarely, if at all, covers the costs in participating in these non-BCS bowl games. Teams lose money when they fail to sell a required amount of tickets, thus covering their cost of travel. This year, BYU, participated in the Liberty Bowl, in Memphis Tennessee. BYU received “a travel subsidiary of $698,550 to cover its Liberty Bowl expenses.”[154] As Val Hale, BYU’s athletic director said, “‘[i]f we don’t sell the tickets, we lose money.’”[155] BYU was required to sell 8,571 tickets, at $35 apiece just to break even. But, BYU only sold roughly 5,500 tickets, requiring BYU to owe nearly $100,000 to the Liberty Bowl just to play the game. With such an insignificant bowl payout and conference share, BYU lost money by participating in a bowl game. But, when conferences receive a guaranteed $14 million from a BCS bowl game, all bowl bound teams are able to cover their travel expenses and still receive a substantial amount of money. As Hale stated, “Unfortunately in our conference, we don’t have that money.” [156] So, in reality, not only are BCS teams receiving more than $2,000,000 than that of non-BCS teams, but also the financial loss of non-BCS teams participating in a bowl game substantially widens the BCS gap. Because of the inferior recruiting and lower financial benefits payouts, the BCS has forced the non-BCS schools into “second tier status.”

The separation of division I-A college football into two tiers will also hurt competition and detract “from the quality of the overall product for consumers.”[157] There are two major products derived from division I-A football. The first product is the regular season games. The market of college football is unique since “consumers of college athletics are to a great extent motivated by emotional loyalty to a particular school.”[158] Though many fans are drawn to any game between two powerful football teams, most fans are only interested in a specific college “because they are personally affiliated with one of the schools or because a team is affiliated with local or regional college.”[159] As Professor Roberts suggested, “many fans of the University of Cincinnati football team are not interested in Florida State’s team even if it is the best team in the country.”[160] Because of this unique character, college football is a very different product and impossible to replace. If the BCS cartel continues, the financial gap will continue to widen and many colleges will be required to drop football all together. “Since every division I-A team generally plays 11 or 12 games per year, for every school that drops football, there is a decreased output of approximately six [home] games available for consumers every year.”[161] This drop of college football teams will be an obvious drop of quality and output since “loyal fans of the affected school will have a poorer or no team to follow.”[162] Furthermore, this disparity may decrease the number of all non-BCS games, thus reducing the overall product quantity of division I-A football.[163]

With this financial disadvantage, not only will non-BCS football teams be affected, but all university sports will be affected. Football, “on average, accounts for two-thirds of schools’ athletic revenues in the NCAA Division I-A.”[164] So, not only will the output of college football be affected, but also college basketball, baseball, track and field, tennis, and all other college sports will be financially impacted. The loss of college football will be the loss of all sports at many NCAA Division I-A schools. With the loss of division I-A football, the number of students would be reduced, along with tickets sales, and the amount of alumni donations. Entire universities could collapse without financial benefits of college sports. This potential loss is unacceptable, but is a possible outcome of the BCS.

The second major product is the national championship game. The pinnacle achievement of a team in college football is to be declared the national champion of division I-A. Without the sponsorship of the NCAA, any group competing against the BCS cannot feasibly claim the NCAA division I-A champion. Any attempt to crown a national champion out of the remaining non-BCS teams would be mute and would not receive the acceptance by the NCAA, the national media, or the majority of the NCAA division I-A teams. In addition, this would reiterate the second tier status created by the BCS. The only realistic proposal is to modify the current system by reducing all anticompetitive restrictions and benefits. These alternatives will be discussed later under the lesser restrictive alternatives section.

2. Procompetitiviness of the BCS

With sufficient anticompetitive effects, the burden of proof will shift to the defendant (the BCS) to argue any procompetitive effects. One argument is that a national championship is guaranteed, which increases interest and overall revenues. The BCS indeed creates a product very popular with consumers of college football that was not available through the traditional bowl format, and “this popular product is the so-called ‘National Championship game.’”[165] In addition to the one national championship game, the BCS claims to produce three other highly touted bowls that provides excitement for coaches, players, and fans.

In addition to a the BCS bowl games, the BCS argues the overall interest in college football and college football bowl games have increased, thus increasing the financial benefits of all NCAA division I-A teams. This argument is a farce, seeing as the ratings for the four 2002 BCS bowl games dropped an outstanding 22% from the previous year,[166] the lowest rating ever for either the BCS or the Bowl Alliance.[167] According to ABC Sports, the BCS national championship game between Miami and Nebraska drew only 13.8 national rating.[168] “After peaking with a 15.7 rating from 8:30-9:30 p.m. EST, viewership dropped to 13.6 from 9:30-10 p.m., and continued downward until the game ended,”[169] this was “22.5 percent lower than the 17.8 for last year's BCS title game, when Oklahoma beat Florida State 13-2 in the Orange Bowl.”[170] With the focus on one championship game, “[t]he public, with its television clickers, seems to have clearly deserted the BCS three non-championship games,” said Neal Pilson, former president of CBS Sports. “Only one game has any significance.”[171] With the focus of the bowl season on only one game, this declining trend was also seen in the three other BCS bowls. The Orange Bowl between Florida and Maryland “posted a 9.5 national rating, down 27% from last year's 13.0 for the comparable Sugar Bowl matching Florida and Miami . . . Oregon-Colorado Fiesta Bowl received an 11.3 rating, down 19% from last year's comparable Rose Bowl. The 8.6 for the LSU-Illinois Sugar Bowl fell 20% short of last year's comparable Fiesta Bowl.”[172] That dropped this year's first three BCS games to a combined overnight rating average of 9.7, 22% below last years 12.6 average.[173] The BCS and ABC were not “helped in 2002 by a series of blowouts, with the four top bowls decided by an average of 22.7 points and all pretty much were won by halftime. Last year, the average margin in those games was 17.5.”[174]

In arguing against the anticompetitive claims, the BCS claims of increased interest and revenue are misleading. With this year’s national championship game, the lowest rated “national championship game,” interest and revenues were not sustained.

One reason why the BCS is losing revenues is that it fails to actually match the top two teams in the nation. In the last two years, there has been heated controversy over which teams should be playing in the national championship game. At the end of the 2000-2001 year, the BCS placed the University of Oklahoma and Florida State University in the Orange bowl for the championship, despite the fact the Florida State lost to the No.3 ranked University of Miami, Florida, during the season; Miami was only 0.041 points behind FSU.[175] Then again, this year, when the BCS placed Miami in the Rose Bowl against the Nebraska, the third ranked team from the Big 12.[176] Nebraska lost to Big 12 champion Colorado 62-36,[177] which resulted in Nebraska being ranked No.4 by both the media and coaches poll behind Miami, Oregon, and Colorado .[178] Coaches, sports writers, and fans around the nation argued that Nebraska did not deserve to play for a national championship since they were unable to win their conference. If by chance Nebraska would have beaten Miami, the national champion would have been split with Oregon, the winner of the Fiesta Bowl.[179] But despite the controversial selection of the Rose Bowl championship teams, Roy Kramer, co-founder of the BCS and former SEC Commissioner, continued to support the BCS. In a radio interview with KOVO, a sports radio station in Provo, Utah, he reiterated, that the BCS is not about conference champions, but about the best two teams in college football.[180] Mr. Kramer also stated that even though the BCS might not treat all division I-A teams equally, no system could or should be fair for all teams.[181]

Another possible scenario that would put the BCS in doubt is if the top eight ranked teams in the BCS’s ranking all came from non-BCS conferences. If under the current BCS system, the top eight teams were non-BCS schools, only the top two teams would play for in a BCS bowl game. The next six highest teams under the BCS’s own system would be barred from participation. [182] Since 75% of the top teams in a season can theoretically be banned from the top bowl games of the year violates the anticompetitive prong of the rule of analysis.

Despite the advantage value of a potential national championship game, the monopoly prices takes much more away from the consumer.[183] Though “the championship game offers an attractive product to the consumers, this product is a direct result of increased market power. The [BCS] substantially strips the economic value of the product through monopoly pricing in order to benefit its own [BCS] members.”[184]

3. Lesser Restrict Alternatives

Though procompetitive effects of the BCS are arguably ineffective and under debate, the burden will probably again shift to the plaintiffs to prove any potentially lesser restrictive alternatives. “The BCS championship is a fiction created by a handful of conferences and games to provide the illusion of a national title, but until their handing out a trophy with the NCAA logo on it, it’s a counterfeit crown. And the sooner people [and the NCAA] realize this, and reject the farce that is the BCS ranking system and the entire bowl structure as it now exists, the sooner we can go to work on creating a real national championship.”[185] There are several different philosophies discussed in how to create an undisputed national championship without losing revenue or interest. The general alternatives vary from the returning to an open market bidding process after the NCAA selecting the top two teams,[186] non-BCS schools creating their own championship,[187] tinkering with the current BCS ranking system,[188] or establishing some type of playoff system.[189]

Based on the recent criticism of the 2002 championship game of Miami and Nebraska, the BCS is considering altering the usage of computers in the BCS format by either entirely relying upon a mathematical formulation, or eliminating the computers all together.[190] Despite being a lesser restrictive alternative, these commissioners continue to reject any playoff proposition; even a recent proposal worth $3 Billion, believing a playoff would suck the life out of college football.[191] “If college football’s current system were replaced by a bona fide playoff series, [according to Professor Roberts] ‘the 63 BCS conference schools would not be able to hog 93% of the $156 million paid out by the various bowls and all of the $108 million paid out by the top four BCS bowls. That is why [the BCS conference commissioners] keep extending the TV BCS contracts well into the future, and refuse to let the NCAA football issues committee even discuss a playoff – so that a playoff is never possible.’”[192]

i. Two lesser restrictive playoffs proposals

In analyzing the legality of the BCS, while considering the traditional and practical aspects of college football, a lesser restrictive alternative is to create an unbiased playoff. With a playoff, a true national champion will be determined on the field, and not by a person or computer. Undeniably, with a playoff interest would increase since more teams are vying for a title, and would allow fans to follow those “Cinderella” teams similarly found in the NCAA basketball tournament. Several benefits of a playoff are as follows:[193]

(1) A postseason playoff system that will determine an undisputed National Champion on an annual basis,

(2) Keeping the same bowl games of today, but utilizing them as playoff sites,

(3) All bowls, even the minor bowls, would increase gate and television revenue due to the significance of the games and the quality of higher ranked teams,

(4) All bowls will capture a greater television audience and revenue, because the major bowls will not be competing against one another on January 1st for viewership,

(5) Schools are less likely to patsy their schedules to guarantee a perfect or near perfect season so that they may in the (one game) BCS championship at the end of the year. Instead the emphasis will be one of the Top 16 teams and qualify for the post-season tournament.

(6) The postseason time frame would not be extended, thus not exceeding the NCAA's 22-week season regulation. (Actual season = 20 Weeks)

(7) It would be easier to obtain and retain quality corporate sponsors for the structured playoff games as television ratings increase significantly,

(8) The NCAA would receive a substantial increase in revenue to aid all, both male and female, team and individual intercollegiate sports,

(9) The increase in revenue generated by the playoff structure could be distributed amongst all participating and nonparticipating schools. Even if your division I-A school never makes it to the tournament, it is still benefiting from the structure. It is a Win-Win situation for all Division I-A Athletic Programs. Earnings can be distributed proportionally.

In considering the conferences, the amount of teams, the additional games to be played, and other factors, a 16-team playoff is the most feasible. Within this playoff, the most important aspect is the selection of the 16 teams. The crucial factor in selecting teams is treating each team and conference equal; no special privileges can be given to any conference. To reduce any anticompetitiveness, all teams most have the same chance of reaching the playoffs and becoming a national champion. Under one plan, the 11 conference champions are guaranteed a playoff spot, with the NCAA selecting the “best” five remaining at-large teams.[194] The guarantee of each conference champion, instead of a selected elite few, equalizes the competition and market between conferences. No longer will post-season bowl games be chosen by affiliation, but instead by merit alone. No longer will there be pre-selected perpetual elitist status given to conferences and teams. Prior to any given season, every team has the same chances to win a national championship. The current philosophy, “hey we’ve been successful over the past several years so we deserve privileged status for this upcoming year” will be eliminated.[195]

Another playoff alternative forgoes automatic selections of conference champions, and only the top 16 ranked teams are chosen.[196] This selection process treats all teams equally, prevents any unqualified or undeserving conference champion from competing for a national champion, and only selects the nation’s top teams with the best overall weighted record. After the season is over, the top 16 teams with the most points are invited to the post-season playoff.

The determination of the either the five at-large or top 16 teams, depending on which playoff systems is used, must also be free from all bias from any individual or computer. To equalize competition, all factors that favor a specific conference or team should be eliminated. The strength of schedule and quality win components, along with the computer rankings are bias towards the current BCS teams. In a perfect system, it could be determined by the final rankings in the AP and ESPN/Coaches Poll since any media writer or football coach should be taking into consideration each teams specific schedule, wins over ranked opponents, and considerably more factors, like margin of victory, number of games played, weather conditions, traveling, injuries, and many more. But unfortunately, the Coaches Poll and Media Poll are also extremely biased and a new ranking system has to be created. This ranking system will be explained next.

ii. Creating a new ranking system: The Hales Ranking System

This new ranking system should be exclusively based on a team’s ability that particular season. With such a limited amount of information, the best way to determine a team’s ranking is factoring a team’s amount of wins and the number of wins of each defeated opposing team. Under this ranking system, each team will get three points per victory, plus one point for every win of a team that they defeated. In the pursing weeks, each additional victory the defeated team earns, each team that beat that team will also earn one point. For example, if Tulane beat Virginia Tech, a team with a record of 8-2, Tulane would receive 11 points more points toward their ranking. (3 points for the victory + 8 points from Tulane’s wins. (3+8=11)). If two weeks later, Virginia Tech is 10-2, Tulane will have earned two more points. Under this system, each team starts out with zero points, and the final ranking is based on each team’s victories over quality components. To guarantee as much equality as possible, each team should play the exact same amount of regular season games, possibly 10 or 11. If a team chooses to play a division I-AA team, the I-A team will receive three points for a victory, but will not receive points for each win of that division I-AA team. Though, each division I-A team that beats any team with a victory over a division I-AA will earn that respective point. For example, if San Diego State beat division I-AA Montana, which has a record of 10-1, San Diego State will only earn three points, but if the University of Utah beat San Diego State, Utah will earn three points, plus a point for San Diego State’s victory over Montana. This same philosophy will also apply to Preseason games. [197]

Indeed this ranking system is not perfect. One concern is that an undefeated team still might not be highly ranked if every team they beat failed to win a game. For example, Syracuse finished with a record of 11-0 with all swins against winless teams (33 points), they would be ranked lower than a 6-5 Washington State with wins against six teams with three wins each (36 points).[198] Though under the first playoff system, by having an undefeated season, Syracuse would have won the Big East Conference and would have received an automatic bid to the playoff.[199] Though, if Syracuse was independent, no automatic bid would be rewarded, and they probably would not have enough points to reach the playoffs. But, if effectively evaluating each team is indeed the purpose of this ranking system, victories over winless teams fails to provide adequate measurement.

Despite being imperfect, this ranking places the greatest weight on the number of each team’s victories, specifically benefiting those teams that beat teams with more victories while hindering those teams that beat teams with few victories. Though the ranking will not be effective in determining a ranking during the first half of the season, the outcome is all that is relevant. (To see the results of the 2001-2002 final ranking under this Hales Ranking System, see Attachment C.) Under the first playoff alternative, the conference champions and the five “at large” teams are seeded 1-16 by their Hales Rank, with the top rated team playing No.16, No.2 playing No.15, and so forth. [200] Under the second playoff alternative, the top 16 teams are seeded 1-16. [201] The victor of each round moves on to play the next round, until two teams played their way to the national championship game.

This new ranking system will base each teams “ranking” solely on their performance on the field, and will like wise produce the true national champion under a lesser restrictive means. There will be no individual biases of teams, coaches, or sports writers; no complaining about quality of components; no prejudicial pre-season rankings; no conference favoritism; and no anticompetitive issues.

iii. Analyzing the concerns of a playoff

Though a playoff would be extremely beneficial, it does have a negative side. One concern is that a playoff will not guarantee a match up of the “top two teams in the nation each year, since upsets might commonly allow a lower-ranked team to advance over a higher-ranked opponent in the playoff.”[202] Though a playoff does not assure a title game of the two highest rated teams, as with every other high school, collegiate, and professional sport, a playoff “exemplifies basic fairness and open competition.”[203] With a playoff, interest is increased with the “underdog,” or Cinderella stories often seen in college hoops, i.e., Villanova and North Carolina State.[204] But, under the current football system, “there can be no Cinderella stories.”[205] However, with a “16-team playoff, unsung teams would be afforded the opportunity to go toe to toe with college football’s elite.”[206]

Another concern with creating a playoff is the potential elimination of several bowls and their revenue. With a playoff, the current bowls could easily be infiltrated as regional playoff locations.[207] With the majority of current bowls hosting playoff games, not only will the current BCS bowls generate more money and interest, but so would the revenue of “lower tier” bowls. Under the current bowl format, only one bowl game determined a national champion; but under a playoff, 15 games would be needed to define the champion. Since each playoff game would be important, interest and revenue would substantially increase. If additional bowl games outside the playoff desired bowl games for non-playoff teams, than these bowl games would have the same level of interest and production as non-BCS bowl games currently create, thus no output would be lost.

In addition to the concern regarding the interest and revenue of the current bowls, a different concern of creating a playoff is the potential disinterest of the regular season. This concern is a ridiculous, for a playoff under the Hales Ranking System would significantly increase the level of interest of each regular season game. For not only will each fan be concerned with their particular team’s record, but fans will become interested in each game of each team that their team defeated. With this overall increase in the interest in the college football season, revenues would also drastically increase.

A further concern with forming a playoff is the creation and scheduling of additional games. In addressing the amount of games, the concern is the burden it will be on the players and teams. Though, despite this concern, any playoff would not impose an excruciating burden on any team. “If you truly limit everyone to 11 games and install a playoff system, there would be eight teams finishing with 12 games, four playing 13 games, two playing 14, and two playing 15.”[208] As seen in the past, BYU has successfully completed 15 and 14 game schedules, Fresno State has played 14 games, and several teams have finished with 12 games. Since fewer and fewer teams are playing more than an 11-game season, the concern of an extended season is obsolete.

The other issue associated with additional games is the potential scheduling conflict with college finals and the oncoming National Football League (NFL) playoffs. With most college football seasons starting in the last weekend in August and ending in the first weekend in December, 15 weeks are provided to play the regular season. If each team is limited to 11 games, that provides four extra weeks through out that time. If each team is only given a maximum of two bye-weeks,[209] and the regular season concluded on the third weekend in November, there is ample time to schedule additional playoff games. Within this time frame, there are several ways to schedule a playoff. One example is to play the first two rounds on the last weekend in November and the first weekend in December. Than take off two weeks for finals, and play the final two rounds on the last weekend in December and the first weekend in January. To keep the tradition of a New Years Day bowl game, the schedule could be adjusted to hold the title game on January 1^st, with the third round of playoffs a week or 10 days previous. This would still provide ample time for school while avoiding the NFL. From the end of August to the beginning of January, there are about 20 weeks to successfully schedule an 11-game regular season and four-round playoff. At the most, 15 games will be played in 20 weeks.

Despite these concerns, the major obstacle in creating a playoff is the abandonment of the BCS. The BCS conferences teams will not enthusiastically give up their elite status and guaranteed millions of BCS money. The only way for the BCS to be dethroned is action from the NCAA or the court system.

No matter how any playoff system is organized, the NCAA must regulate and control the NCAA post-season. With a standardized playoff organization sponsored by the NCAA, “you won’t have the current situation where teams are frequently selected not because of worth, but because the ‘travel well,’ which is to say brings lots of fans who spend money, or are good for the ratings.”[210] As the NCAA professes, the goal of the NCAA is to administer national championships.[211] The administration by the NCAA is dispositive to the success of any alternative, for any private organization has the potential to become corrupt, as the BCS. For the BCS is a cooperation of six conferences to financially benefit those six conferences while financially destroying all other conferences.

To maintain the competitive balance of college football, all money generated will be distributed among all division I-A teams, preventing the expanding deficit currently created by the BCS. Though money can be proportionally distributed by the success of the team and conference in the playoff, it is important “in an industry where the quality and quantity of the output depends on maintaining athletic competitive balance across the industry, it is crucial that revenues be distributed in a manner that allows all teams to remain able.”[212]

IV. CONCLUSION

The BCS undermines the fundamental values of intercollegiate athletics, the education of amateur student-athlete, and accelerates and magnifies the perverse commercial motivations. The BCS hinders the production and competition of a significant portion of division I-A football teams, and the NCAA as a whole. Though each team does not in reality have equal talent and ability, the market must be open for each team to compete despite their lack of talent. Because of arrogance and bias, barriers of entrance have created financial gaps within the market of college football to an extent that productivity is threatened. Under both the per se and rule of reason analyses, the BCS fails.

Instead of the BCS, a lesser restrictive alternative is to create a 16-team playoff under a new ranking system that only uses each team’s wins and the accumulation of wins by each team’s defeated opponent. This system created within this paper provides a more productive and competitive market for college football.

[1] Mark is a 3^rd year law student at BYU. He can be contacted at byulawguy@hotmail.com

[2] See The Cougar Fight Song Brigham Young University http://www.byu.edu/about/songs/ (accessed Mar. 11, 2002). The lyrics were written by Clyde D. Sandgren.

[3][3] See The History of the NCAA, http://www.ncaa.org/ (accessed Dec. 28, 2001). [Hereafter History]. President Theodore Roosevelt summoned college athletics leaders to two White House conferences to encourage such reforms. In early December 1905, Chancellor Henry M. MacCracken of New York University convened a meeting of 13 institutions to initiate changes in football playing rules. At a subsequent meeting December 28 in New York City, the Intercollegiate Athletic Association of the United States (IAAUS) was founded by 62 members. The IAAUS officially was constituted March 31, 1906, and took its present name (NCAA) in 1910. For several years, the NCAA was a discussion group and rules-making body; but in 1921, the first NCAA national championship was held: the National Collegiate Track and Field Championships. Gradually, more rules committees were formed and more championships were created.

[4] 1997 WL 10572127, Congressional Testimony by Cedric W. Dempsey, Executive Director of the NCAA, before the Senate Subcommittee on Antitrust, Business Rights, and Competition. 105^th Congress. (May 22, 1997). [Hereafter Dempsey]. During the 1905 season alone, 18 deaths and 159 serious injuries occurred on college football fields. See Chris Hill, (unpublished paper, 1999) (copy on file with author of article) [hereafter Hill] citing Arthur A Fleisher III, The National College Athletic Association: A study in Cartel Behavior 39, (1992).

[5] Id. at 37

[6] See History.

[7] See NCAA Mission, Values, and Goals, http://www.ncaa.org/ (accessed Dec. 28, 2001). [Hereafter Missions]

[8] Id. Italics added

[9] Id. Italics added

[10] Id. Italics added

[11] See What is the difference between Divisions, I, II, and III? http://www.ncaa.org/ (accessed Dec. 28, 2001) [hereafter Divisions]

[12] Id.

[13] Id.

[14] See NCAA I-A Conferences. http://208.31.25.3/default.asp?c=ncaafootball&page=cfoot/stand/conf.htm (accessed Dec. 28, 2001). The conferences are: Southeastern (SEC), Big Twelve, Big 10, Big East, Atlantic Coast, (ACC), Pacific 10 (Pac 10), Mountain West (MWC), Conference USA (C USA), Sun Belt, Mid-American (MAC), and Western Athletic (WAC). The Independence schools are: University of Notre Dame, University of Connecticut, University of Central Florida, Navy, University of South Florida, Troy State, and Utah State.

[15] Todd Wallace, Elite Domination of College Football: An analysis of the antitrust implications of the Bowl Alliance, 6 Sports Law. J. 57, 59 (Spring, 1999) [Hereafter Wallace]

[16] More than 40,600 men and women student-athletes annually compete in these events for national titles. See NCAA Championships, http://www.ncaa.org/about/champs.html (accessed Dec. 28, 2001). There currently are 10 National Collegiate Championships for which all divisions are eligible--three for men, three for women, and three men’s and women’s events. There are 26 National Collegiate Division I Championships (13 men, 13 women), 25 National Collegiate Division II Championships (12 men, 13 women), and 27 National Collegiate Division III Championships (13 men, 14 women). Championships for men are offered in one or more divisions in baseball, basketball, cross country, football (except in Division I-A), golf, gymnastics, ice hockey, lacrosse, soccer, swimming and diving, tennis, indoor track, outdoor track, volleyball, water polo, and wrestling. Women's championships are sponsored in basketball, cross country, field hockey, golf, gymnastics, ice hockey, lacrosse, rowing, soccer, softball, swimming and diving, tennis, indoor track, outdoor track, volleyball and water polo. The NCAA sponsors combined men's and women's national championships in fencing, rifle, and skiing

[17] See Dempsey.

[18] Id.

[19] Id.

[20] See Divisions

[21] See Robert Ours, College Football Encyclopedia: The Authoritative Guide to 124 Years of College Football 243 (1994). Chicago won 8-0.

[22] See Dempsey. The next Rose Bowl, or the “Granddaddy” of all bowls, was played in 1916 pitting Washington State University against Brown University. Id.

[23] See Extinct College Football Bowls, http://www.sportsfansofamerica.com/index.htm (accessed Nov. 19, 2001)

[24] See College Football Bowls, http://espn.go.com/ncf/bowls01/index.html (accessed Dec. 28, 2001). The majority of these bowls were attempted to attract tourist to warm climates cities during the time between Christmas and New Years, when business was generally slow. See 1997 WL 10572125, Statement of Roy F. Kramer Commissioner of the Southeastern Conference on the Antitrust Implications of the College Bowl Alliance. (May 22, 1997). [Hereafter Kramer]. See also Dempsey

[25] Id.

[26] See 1997 WL 10572121, Statement of Richard Peace on the Antitrust Implications of the College Bowl Alliance. (May 22, 1997)

[27] The Sun Bowl was called the John Hancock Bowl from 1989-1993. See The Sun Bowl Football Classic: The Sun Bowl through History. http://www.cs.utep.edu/sunbowl/sunbowl.history.html (accessed Dec. 18, 2001)

[28] Michael J. McCarthy, Keeping Careful Score on Sports Tie-Ins, Wall Street Journal, Sec B, pg 1. (Apr. 24, 1991).

[29] See Hill, citing Nathan Wirtschafter, Notes and Comments: Fourth Quarter Choke: How the IRS Blew the Corporate Sponsorship Game, 27 Loy. L.A. L. Rev. 1465, 1486

[30] See Kramer.

[31] Lafcadio Darling, The College Bowl Alliance and The Sherman Act, 21 Hastings Comm. & Ent. L.J. 433, 437 (Winter 1999). [Hereafter Darling]

[32] A vertical contract is an agreement between firms at different levels of distribution. See Business Electronic Corp v. Sharp Electronic Corp., 485 U.S. 717, 728 (1998). As with BCS, the vertical contracts are between conferences, bowl games, and the ABC network. All three of these organizations are on a different “level.”

[33] See Kramer.

[34] See Past National Champions. http://espn.go.com/ncf/bowls01/s/history.html [Hereafter Champions] (accessed Dec. 28, 2001). The years are: 1954, 1957, 1965, 1970, 1973, 1974, 1978, 1990, 1991, and 1997.

[35] Id. See also Past Division I Football National Champions, http://www.ncaa.org/sportsfrontF.html (last visited 1/14/02). The seven consensus national champions were Miami (2001), Oklahoma (2000), Florida State (1999), Nebraska (1995), University of Southern California (1972), Nebraska (1971), and Texas (1963). Between the years of 1950 and 1869, there were only 20 consensus national champions.

[36] See, BCS mulls changes in format, http://espn.go.com/ncf/news/2002/0114/1311387.html (Jan. 14, 2002) See also Dempsey

[37] Id.

[38] See Kramer

[39] Id.

[40] Id.

[41] See Kramer

[42] The Southwestern Conference no longer exists. It disbanded after the 1995-1996 season. The remaining teams joined several different conferences. Texas, Texas Tech, Texas A&M, and Baylor joined the Big Eight, thus becoming the Big 12. The remaining four teams are currently part of Conference USA (Houston and TCU) and the WAC (SMU and Rice). See AP Article, Texas' loss in Sugar was finale for SWC, Jan.1 1996. http://archive.sportserver.com/newsroom/ap/fbo/1995/col/swc/feat/archive/010196/swc64289.html

(accessed Feb. 18,2002). See also, Standings, http://sports.espn.go.com/ncf/standings (accessed Feb. 24, 2002)

[43] The Big Eight later became the Big 12 when the SWC conference disbanded

[44] Id. The ACC and Big East had to break their ties with the Blockbuster Bowl to join the Bowl Coalition. The Blockbuster Bowl was established in 1990, but became the Carquest bowl in 1993; the Bowl’s last year was 1997. See College Football Bowl Games: Blockbuster/Carquest Bowl http://www.geocities.com/nolefan_fsu/fbowls.html (accessed Dec. 29, 2001)

[45] The Big East had previously not been a football conference prior to 1991. When the Big East formed, it attracted several previously independent teams, specifically the University of Miami, Syracuse University, Boston College, & West Virginia. See The Big East Conference, http://www.bigeast.org/about/ (accessed Dec. 29, 2001).

[46] See Kramer

[47] Id.

[48] Though the purpose of this union was to create the most competitive match-ups, and whenever possible, between the top two teams in the nation, the Bowl Coalition could not guarantee a national champion. For example, if the SEC Champion was ranked No.1 in the country, and the Big Eight Champion was ranked No.2, the existing conference affiliation agreements prevented them from playing against each other. In addition, the champions of the Big 10 and Pac-10 were contractually obligated to the Rose Bowl, and other conferences, like the WAC were excluded. Id.

[49] See Champions. In 1990, Georgia Tech was declared national Champion by the Coaches poll and Colorado University was declared national champion by the AP poll. In 1991, Washington was declared national Champion by the Coaches poll and Miami (Florida) was declared national champion by the AP poll.

[50] Florida State joined the ACC in 1991 where previously it had been and independent football program.

[51] Alabama won the game and was voted national champion in both coaches and AP poll. Florida State won the game and was voted national champion in both coaches and AP poll.

[52] See Kramer. The Rose Bowl’s contract with the Big 10 and Pac-10 did not expire at this time.

[53] See Hill citing Andrew Bagnato, New Format would reshape bowls, Chicago Tribune, Aug. 3, 1994 at Sports 5. The nine bowls that placed bids to participate in the Bowl Alliance were the Cotton, Orange, Sugar, Fiesta, Gator, Carquest, Alamo, Peach, and Citrus Bowls.

[54] With the disbandment of the SWC, the Cotton Bowl was dropped from consideration.

[55] See Kramer

[56] See Darling at 439. According to Roy Kramer, Commissioner of the SEC, this guaranteed placement in an Alliance Bowl was “absolutely necessary” for the success of the Alliance. See Kramer. For these conferences were only willing to relinquish their historical and traditional relationships with particular bowls if it substantially increased the possibility that their conference champion could participate in a national championship game. But, even when their conference champion was not playing for national title, each conference champion must play in one of these prestigious Alliance Bowls. Id.

[57] See Darling at 439

[58] Despite being qualified, a non-Alliance or non-BCS team has never been selected as an “at large” team for either the Bowl Alliance or BCS. In the past 10 years, several qualified non-BCS teams were over looked for a less qualified BCS team. Several examples will be discussed later in the paper.

[59] See Wallace at 62

[60] See Kramer

[61] Though, unlike the other Alliance Bowls, the Rose Bowl was allowed to continue to host the champions of the Big-10 and Pac-10, unless it was the Rose Bowl’s turn to host the National Championship game, or if either the Big-10 or Pac-10 champions were ranked No.1 or No.2.

[62] See Two Conferences, Alliance Agree on Participation in Bowls, NCAA News, June 30, 1997. This arrangement was made when non-Alliance BYU, than a member of the WAC, in 1996 was 13-1, ranked No. 5 in the nation (a higher ranking than four Bowl Alliance teams), and still was denied an Alliance birth. No arrangements were available to other non-alliance conferences.

[63] See Darlings at 442, citing McConnell at S2613-2614.

[64] See Hill

[65] See Darling at 442. This financial payout was a substantial increase from the previous year in which the same conferences received $69.4 million in bowl payouts. Id.

[66] See About the BCS, http://espn.go.com/abcsports/bcs/about/ (accessed Jan. 1, 2002)

[67] Id.

[68] Id.

[69] Id.

[70] See What is the “Big East” rule? http://www.collegebcs.com/ (accessed Dec. 28, 2001). For example, the past four champions of the SEC have to average of top 12 finish.

[71] See About the BCS, http://espn.go.com/abcsports/bcs/about/ (accessed Jan. 1, 2002)

[72] See 2001-2002 Bowl Championship Series, http://mgoblue.com/football/01-02/bowl/2-3.pdf (accessed Jan. 1, 2002). When the Rose Bowl hosts the title games, as with the 2002 and 2006 bowl years, the Pac-10 champions will be assigned to the Fiesta Bowl, assuming they are not ranked number one or two.

[73] Id.

[74] Id.

[75] Games are exempt for two reasons. First, they are a preseason “classics.” Second, all wins over Division I-AA are exempt. Though, a team can count a win over a division I-AA once every four years. Exempt games count everywhere in the BCS formula, except for the nine win requirement. See What is an exempt game, and Which teams are eligible for BCS Bowls, http://www.collegebcs.com/ (accessed Jan. 2, 2002).

[76] See Qualifications for At-Large Teams, http://mgoblue.com/football/01-02/bowl/4.pdf (accessed Jan. 1, 2002)

[77] See How they figure the BCS Standings, http://mgoblue.com/football/01-02/bowl/5.pdf (accessed Jan. 1, 2002)

[78] Id. In addition, in previous years, the formula consisted of four central components: poll rankings, computer rankings, strength of schedule, and team record. See Wallace at 63.

[79] Id. The standings will be calculated from the results of all regular season games excluding exempt games and conference championship games.

[80] Id.

[81] Id. If a team is tied in a poll, the team actual rank is considered 0.5 points less than the actual ranking. For example two teams are ranked 7^th in the AP Poll, when calculating the average rank, each teams’ AP rank will be considered 7.5

[82] See What do you know about the different computer ranking? http://www.collegebcs.com/ (accessed Dec. 28, 2001). This poll rates 241 teams (all Division I, plus a few Division II teams.) His ratings have a starting point, which is factored out about halfway through the season. The ratings are designed to be a score predictor. Weights all games equally, regardless of when they are played.

[83] Id. This poll rates only the Division I-A teams. It does not consider margin of victory but factors in conference strength, which is based on how conference do in non-conference play. This poll is not published until after the 5^th week.

[84] Id. This poll rates all NCAA and NAIA teams. It has a hard cap of 21 points on margin of victory. This poll is not published until the October. Rankings are based on actual outcome versus the predicted.

[85] Id. This poll rates only Division I-A teams. This rating system was rewritten for 2001 to remove margin of victory. It carries a team’s rank over from the previous year and values early part of the season more highly.

[86] Id. This poll rates only Division I-A teams, plus provisional I-A teams (like Troy State in 2001.) This poll does not use margin of victory. He publishes ratings at the beginning of the season, but uses no prior season data. Every team starts at 0.5

[87] Id. This poll was rewritten in 2001 to remove margin of victory

[88] Id. This poll rates all NCAA and NAIA teams. This poll, among other things, minimizes blowouts and does not weigh recent results more heavily. This poll is not published until sometime in October.

[89] Id. This poll rates all the same teams as Sargin, but includes, in some form, margin of victory.

[90] See How they figure the BCS Standings, http://mgoblue.com/football/01-02/bowl/5.pdf (accessed Jan. 1, 2002)

[91] Id.

[92] Id.

[93] Id. The scale reduction is follows: [Team Rank when beaten (points reduced).] 1 (0.15), 2 (0.14), 3 (0.13), 4 (0.12), 5 (0.11), 6 (0.10), 7 (0.09), 8 (0.08), 9 (0.07), 10 (0.06), 11 (0.05), 12 (0.04), 13 (0.03), 14 (0.02), and 15 (0.01).

[94] Id.

[95] Id.

[96] See About the BCS, http://espn.go.com/abcsports/bcs/about/ (accessed Jan. 1, 2002). “Miami earned the 2001 title by beating Nebraska 37-14 in the Rose Bowl. Oklahoma captured the 2000 national title defeating Florida State 13-2 in the Orange Bowl. In the BCS' first season in 1998, Tennessee defeated Florida State, 23-16, in the Fiesta Bowl to claim the national title. A year later, it was Florida State's turn as the Seminoles topped Virginia Tech 46-29 in the Sugar Bowl.” Id.

[97] See 2002 BCS Revenue Distribution, http://www.mgoblue.com/football/01-02/bowl/ (accessed Jan. 2, 2002)

[98] Id.

[99] Id.

[100] Id.

[101] Id.

[102] 15 U.S.C.A §1-2. The Sherman’s Act reads as follows:

Section 1: Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a corporation, or, if any other person, $350,000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court.

Section 2 states: Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a corporation, or if any other person, $350,000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court.

[103] See Wallace at 66

[104] See Mark Conrad, SportslawJargon: Antitrust, http://www.sportslawnews.com/ (accessed Jan. 7, 2002)

[105] See Wallace at 66, citing Ernest Gellhorn, Antitrust Law and Economics 64 (1986)

[106] 15 U.S.C.A. §12

[107] See Hill citing, Practicing Law Institute, Antitrust Litigation 12 (1985)

[108] See 143 Cong. Rec. S2613-01 - Senator McConnell, Antitrust Implications of the College Bowl Alliance, Proceedings and Debates of the 105^th Congress, First Session, Thursday, March 20, 1997. [Hereafter McConnell]. A third “quick look rule of reason” exists, but will not be addressed in this paper. See Darling at 454

[109] See Wallace at 66, citing NCAA v Board of Regents of the Univ. of Oklahoma, 468 U.S. 85, 100 (1994).

[110] See Wallace at 66, citing Broadcast Music, Inc. v Columbia Broadcasting Sys. Inc., 441 U.S. 1, 19-20 (1979)

[111] Id.

[112] See Northern Pac. Ry. v. United States, 356 U.S.1, 8 (1958) (tying use of a railroad to purchase of land illegal).

[113] See Addyston Pipe & Steel Co. v United States, 175 U.S. 211, 244 (1899) (agreement held illegal, specified that six defendants would not compete in 36 states and territories)

[114] See Fashion Originators’ Guild of Am., Inc. v FTC, 312 U.S. 457, 467-468 (1941) (guild members conspired to refuse to sell to retailers who also sold competing goods.)

[115] Id.

[116] See NYNEX Corp. v. Discon, Inc., 525 U.S. 128 (1998)

[117] Id. See also Maxwell M. Bleacher, The Impact of GET Sylvan on Antitrust Jurisprudence, 60 Antitrust L.J. 17 (claiming continued application of per se rules to horizontal restraints); Stephan Catkins, Antitrust Law Developments: The 1990-91 Supreme Court Term and Antitrust: Toward Greater Certainty, 60 Antitrust L.J. 603 (asserting reduced use of per se treatment).

[118] 246 U.S. 213 (1918)

[119] See United States v. Brown University, F.3d 658,668-69 (3^rd Cir. 1993); See also Gary R. Roberts, The NCAA, Antitrust, and Consumer Welfare, 70 Tul. L. Rev. 2631, 2635-36.

[120] See Hill, citing 1997 WL 10572230, Congressional Testimony by Gary R. Roberts, Professor of Law, Tulane Law School, before the Senate Subcommittee on Antirust, Business Rights, and Competition. [Hereafter Roberts]

[121] See Wallace at 68

[122] Id.

[123] See Senator Mike Dewine, Opening Statement on the Senate Subcommittee on Antitrust, Business Rights, and Competition: Hearing on College Football Bowl Alliance. May 22, 1997.

[124] In a recent case, the NCAA was fined $54 million for restricting the salaries of basketball’s assistant coaches under antitrust laws. Law v. NCAA, 902 F. Supp 1394 (D. Kansas 1995)

[125] See McConnell at S2616.

[126] Id. The word “non-BCS” replaced the word “non-Alliance.”

[127] See McConnell at S2616.

[128] Id., citing Smith v Pro Football Inc., 593 F.2d 1173,1178 (DC Cir. 1978).

[129] See Jon Saraceno, Messy BCS might not even be legal, http://www.usatoday.com/sports/comment/saraceno/2001-12-13-saraceno.htm (accessed Feb. 10, 2002) [hereafter Saraceno], citing Gary Roberts.

[130] Hypothetical created with the assistance of http://www.collegebcs.com/ created on Dec. 3, 2001.

[131] See The BCS rankings for the past four years, http://collegebcs.com/ (accessed Jan. 8, 2002), and 1998-2001 Bowl Game Schedules http://www.allsports.com/ncaa/football/ (accessed Feb. 25, 2002)

2001: Non-BCS: BYU (12-1), Fresno State (11-2); BCS: LSU (9-3), Florida (9-2), Colorado (10-2).

2000: Non-BCS: TCU (10-1); BCS: Florida (10-2), Notre Dame (9-2), and Purdue (8-3).

1999: Non-BCS: Marshall (11-0); BCS: Nebraska (11-1), Alabama (10-2), Tennessee (10-2), Michigan (9-2), Wisconsin (9-2), and Stanford (8-3).

1998: Non-BCS: Tulane (11-0); BCS: Florida State (11-1), Ohio State (10-1), UCLA (10-1), Wisconsin (10-1), Texas A&M (10-2), Florida (9-2), and Syracuse (8-3).

(Records are indicated prior to each team’s final bowl game)

[132] This only includes regular season games, and excludes conference championships or bowl games.

BCS Conferences (16): Big 12 (4): Nebraska 1994 & 1995, Texas A&M 1994, Kansas State; SEC (3): Alabama 1994, Florida 1995, Tennessee 1998; Big 10 (2): Penn State 1994, Michigan 1995: ACC (2): Florida State 1996, 1999; Pac 10 (1) Arizona State 1996; Big East (2): Virginia Tech 1999, Miami 2001; Notre Dame (0).

Non-BCS Conferences (3): MAC (2): Toledo 1995, Marshall 1999; Conf USA (1) Tulane 1998; MWC (0); WAC (0), Sun Belt (0), Independents (0).

[133] For the 2001-2002 season, the average per conference was: Big 12 (7.08 – 4.92); Big East (6.75-5.00); Pac 10 (6.60-4.90); ACC (6.56-5.44); SEC (6.38-4.54); Big 10 (6.18-5.45); MWC (6.00-5.75); WAC (5.60-6.20); MAC (5.46-5.85); Conf USA (5.30-6.30); Independents (4.57-6.29); and Sun Belt (3.71-7.57).

[134] Over the past 10 years, BCS teams dominate all preseason polls. See 1991-2000: College football’s most underrated and overrated teams. http://cbs.sportsline.com/u/ce/feature/0,1518,4057369_56,00.html (accessed Feb. 25, 2002) [Hereafter Underrated]

[135] Id. In the past 10 years, no team has won a championship without being ranked in a preseason poll. The largest deficit any team has overcome to win a national title was Oklahoma in 2000 when they began the season No. 19. Other significant deficits over come to win a title were Tennessee in 1998 (preseason ranked No. 10) and Michigan in 1997 (preseason ranked No. 14). All other teams that won a national title had a preseason rank higher than No.10.

[136] See Underrated

[137] Most teams play an average of 11 games, five coming on the road.

[138] Alexander Wolfe, Scorecard, Sports Illustrated, 41. (Dec. 17,2001)

[139] Id.

[140] See Attachment A.

[141] Of course, the money is not divided equally between all 63 teams, but it provides a rough average of the money yearly guaranteed for all BCS teams under the BCS. In reality, the difference is even greater. Over the past two years the Pac 10 teams have earned about $2.5 million while the Sunbelt has earned less than $60,000 per team.

[142] See Attachment A

[143] Id.

[144] Email from Rex McBride, JD (rexmcb@yahoo.com) to Mark Hales (Dec. 7, 2001)

[145] Id.

[146] See Attachment B.

[147] See Wallace at 76

[148] Id

[149] See Hill

[150] Id.

[151] See Final Top 25 Football Recruiting Classes. http://recruiting.theinsiders.com/2/34629.html (accessed Feb. 7, 2002)

[152] Jon Morgan, Coaches run up the salary score, The Baltimore Sun, Sports, pg. 1D. (Jan. 25 2002).

[153] Id. (Coach, School, $ in millions) Tyrone Willingham, Notre Dame, $2.0; Bob Stoops, Oklahoma, $2.0; Bobby Bowden, Florida State, $2.0; Mack Brown, Texas, $1.7; Phillip Fulmer, Tennessee, $1.65; Nick Saban, LSU,$1.6; Ron Zook, Florida, $1.5; Barry Alvarez, Wisconsin, $1.3; Glen Mason, Minnesota, $1.3; Tommy Tuberville, Auburn, $1.25; Rick Neuheisel, Washington, $1.21; Pete Carroll, USC, $1.21; Tommy Bowden, Clemson, $1.2; Dennis Francione, Alabama, $1.1. “Note: Totals are estimates. Actual compensation varies by incentives, bonuses and other contract terms.” Id. This does not represent any changes after the cited article was written.

[154] See Patrick Ridgell, MWC bowls unlikely to lead to profit for schools, http://www.cougarblue.com/ (accessed Dec. 19, 2001)

[155] Id.

[156] Id.

[157] See Darling at 460

[158] See Roberts

[159] Id.

[160] Id.

[161] Id.

[162] Id.

[163] See Darling at 460

[164] See Steve Wieberg, Questions Rise about Commissioners’ Roles Chiefs of Six Major Conferences Seen as ‘De Facto Leaders’ of NCAA, USA Today, 8C. (Nov. 1, 2000) [Hereafter Wieberg]

[165] See Wallace at 81

[166] See Turing Out: Lopsided games lead to the lowest Rose Bowl ratings. http://www.cnnsi.com/ (accessed Jan. 5, 2002)

[167] Id.

[168] Id. ABC is paying $525 million for seven years of TV rights to the top four college bowl games, through 2006.

[169] Id.

[170] Id. Each rating point represents a little more than 1 million TV households. Id.

[171] See Rudy Martzke, ABC Spells out Miami’s Dominance in game, http://www.usatoday.com/sports/comment/martzke/2002-01-04-martzke.htm (accessed Jan

[172] Id.

[173] Id.

[174] See Wieberg

[175] See http://www.collegebcs.com/00/bcs.html (accessed Jan 4, 2002)

[176] See http://espn.go.com/ncf/bowls01/rose.html (accessed Jan 4, 2002)

[177] See http://college.espn.go.com/ncf/teamsched?teamId=2319 (accessed Jan. 4, 2002)

[178] See http://sports.espn.go.com/ncf/rankings?poll=2&week=17 (accessed Jan. 4, 2002)

[179] See AP Article, No Debate – Miami No.1 in polls, http://www.msnbc.com/news/666371.asp#BODY (accessed Jan. 12, 2002)

[180] Radio interview conduct on January 8^th, 2002

[181] Id.

[182] For example, if the top eight teams were (1) BYU; (2) Tulane; (3) Louisiana Tech; (4) Arkansas State; (5) Louisville; and (6) Toledo, only BYU and Tulane would play in a BCS game and all other teams would be barred my BCS participation despite being highly ranked

[183] See Wallace at 80

[184] Id. The term “BCS replaced the word “Alliance,” referring to the former Bowl Alliance arrangement.

[185] David Lassen, Needing a true champion, Part A, Washington Times, A15, (Dec. 24, 2000). [Hereafter Lassen]

[186] See Robert

[187] See H.B. Arnett proposal was posted on http://www.byusports.com/ (accessed Nov. 15, 2001)

[188] See BCS mulls changes in format, ESPN.com news services. http://espn.go.com/ncf/news/2002/0114/1311387.html (accessed Jan. 14, 2002) [Hereafter Changes]

[189] Various playoff opinions range from four, eight, 16, and 32 team playoffs.

[190] See Changes.

[191] Id. See also Wieberg. This $3 Billion playoff proposal would be five times the guaranteed gross under the BCS.

[192] See Saraceno

[193] See SFAA College Football Playoff Proposals, http://www.sportsfansofamerica.com/index.htm (accessed Jan. 2, 2002) [Hereafter SFAA]

[194] The selection of these top five at large teams will be conducted under the new ranking system proposed within this paper. The top five ranked non-conference champions would be the teams that are “selected.”

[195] See McConnell

[196] The Hales Ranking System seen later in this article will conduct the ranking & selecting of these 16 teams.

[197] The inclusion of Preseason games, are included for a matter of convenience in writing this paper but should be eliminated from any future analysis.

[198] Syracuse would receive 3 points per victory. (3x11=33). Washington State would receive 3 points per victory (6x3=18) plus 1 point per victory of each opponent. (6 teams X 3 wins each =18) (18+18=36). Thus an undefeated Syracuse would be ranked lower than a 6-5 Washington State.

[199] If every team in the Big East failed to win a game, except for Syracuse, than the surely the supremacy of the Big East would be in doubt.

[200] See Attachment D

[201] See Attachment E

[202] See Darling at 463

[203] See McConnell

[204] Currently, the NCAA invites 65 teams to its annual post-season basketball tournament. There are 4 divisions with 16 seeded teams each. (One division has a pre-tournament game between two teams to qualify for the 16^th seed). In 1983, N.C. State won the NCAA Basketball Tournament as a No. 6 seed. See 1983: NCAA Tournament, http://cbs.sportsline.com/u/madness/2000/history/yearbyyear/1983.htm. (accessed Feb.3, 2002). In 1985, Villanova won as a No. 8 seed. See 1985: NCAA Tournament, http://cbs.sportsline.com/u/madness/2000/history/yearbyyear/1985.htm (accessed Feb. 3, 2002)

[205] See McConnell

[206] See Mel Kiper, Playoff is only cure for BCS woes, http://espn.go.com/melkiper/s/2001/1210/1293013.html (accessed Feb. 3, 2002).

[207] See SFAA for several proposals incorporating the current bowls as playoff locations

[208] See Lassen.

[209] A “Bye-week” is a week when the team does not play any games.

[210] See Lassen

[211] See Missions

[212] See Roberts