Politics Up Close: AG Mark Shurtleff on BCS

“I’ve dreamed about the NCAA tournament and watched the teams that went to the NCAA tournament and that’s what I wanted to be. Now that we have that chance to, I want to take full advantage of it”- David Stockton

Mark Emmert
President
National Collegiate Athletic Association
P.O Box 6222
Indianapolis, IN 46206

Dear President Emmert:

We are writing to respond to the March 12, 2011 3rd District Town Hall Meeting in Spokane, Washington. January 11, 2011 we sent a letter to Washington State’s Senate Majority Leader Lisa Brown to inform her of the efforts that will be taken to convince the Department of Justice (DOJ) to sue the Association of Conferences. When asked if legislative efforts should be taken to improve the Bowl Championship Series (BCS), Representative Timm Ormsby suggested that I send my information to “Dr. Emmert”.

After the conclusion of the July 7, 2009 Senate hearing, “The Bowl Championship Series: Is it Fair and in Compliance with the Antitrust Laws?”, Mountain West Conference (MWC) lawyer Alan Fischel suggested I “submit it to them”. His classification of “them” is the BCS. The BCS is a five game event that is managed by the 120 Football Bowl Subdivision (FBS) universities with additional assistance from ESPN, the Rose Bowl, the Orange Bowl, the Sugar Bowl, and the Fiesta Bowl .

The Kennedy Proposal (KP) has been submitted to Executive Director of the BCS Bill Hancock, Executive Director of the Rose Bowl Scott McKibben, the Orange Bowl, the Sugar Bowl, the Fiesta Bowl, University of Miami AD Brad Bates, Big 12 (10) Commissioner Dan Beebe, Central Michigan University AD David Heeke, University of Texas AD DeLoss Dodds, University of Buffalo Associate Athletic Director Douglas Gnodtke, Mid American Commissioner Jon Steinbrecher, Big Ten (12) Commissioner Jim Delany, Ohio University AD Jim Schaus, Atlantic Coast Conference Commissioner John Swofford, Kent State University AD Laing Kennedy, Former Big East Commissioner Michael Tranghese, former University of Southern California AD Mike Garrett, former West Virginia AD Mike Parsons, Southeastern Conference (SEC) Commissioner Mike Slive, University of Southern Mississippi AD Richard Giannini, University of Tulane AD Rick Dickson, USC Senior Associate AD Steve Lopes, San Jose State University AD Tom Bowen, Sun Belt Commissioner Wright Waters, and former Pac 10 Commissioner Tom Hansen ; handed to President Young of the University of Utah, Pat Haden AD at University of Southern California (BCS AD Advisory Group) , Head Coach Chris Petersen, and rejections have come from President Kustra of Boise State University, Vice President of Administration Tom Poole at Penn State (President Spanier is the current BCS Presidential Oversight Committee Chairman), President Nikias at the University of Southern California (USC), President Simon of Michigan State University (MSU)(Mrs. Simon is member of the NCAA Executive Committee) , Greg Byrne the AD at the University of Arizona, President Bodenheimer of ESPN, Western Athletic Conference (WAC) Commissioner Karl Benson and his presidents, makes me doubt that these same people will be wanting to go in that direction unless forced or punished. Each response is not listed in this letter but instead a few will be highlighted.

July 12, 2009 via email
Dear Brandon,

Chancellor Perlman has received The Kennedy Proposal and has asked me to respond.

We appreciate your taking the time to write.

I’m sure you have read that the conferences have agreed to continue the current format through the 2014 bowl season. When they begin to discuss plans for 2015 and beyond, I am certain they will consider as many proposals as possible. I have not heard any sentiment to add three or four games to the season, nor any sentiment to play games in the two weeks before Christmas.
Thank you again.
Bill Hancock

Even if we ignore the fact the KP adds two or three games to the season, and that teams already compete on Christmas Eve, the August 11, 2010 ESPN poll indicates “players want a playoff — but don’t dare take away their bowl games (and the accompanying gift bags).” The players’ position on a playoff was furthered this January with the release of the National College Players Association (NCPA) survey of FBS players—nearly 81% were in favor. The Associated Press reported earlier this month that you would be willing to help create a playoff “if the leadership of those universities wanted to go in that direction.” Mr. Hancock would respond to these comments on ESPNU’s College Football Podcast hosted by Ivan Maisel:
“Well the NCAA membership does not want a playoff. It comes down to that and I think you have to poll every school to find out what their reasons are, but I think the consensus is that they want to continue with the bowl system, which is such a great experience for the athletes, and also the tradition of the bowls; and also the regular season is so important in college football and I don’t think anybody wants to do anything to take away from that. And so that’s why the people that [NCAA President] Mark [Emmert] works for has said, ‘We’re sorry we just don’t want a playoff’.”
Mr. Hancock has lied once again. This is no different than his four page letter to the Football Writers Association of America (FWAA) when he claims “Certainly, players in a playoff would not enjoy a bowl experience”. I am certain that Bill Hancock won’t use that information in a lawsuit nor in front of legislators that are aware of the KP. In addition, July 25, 2009, the Washington Post reported, “He has sent, by his estimate, more than 15,000 emails and letters to college athletic conference commissioners, athletic directors and NCAA officials over the past year.”

Mr. Viera would conclude his story by asking those administrators about the KP and they reported the KP was “simply not feasible”. Mr. Viera has not supplied those administrators because he knows they can’t supply that information. Furthermore, Mike Leach asked Bill Hancock about me and Hancock acknowledged that we send emails to each other. The email sent to Mr. Hancock on December 7, 2010 challenged him to BCS Debate on my radio show, in a meeting, in the court of law, or in Congress. To report an antitrust concern, the DOJ-Antitrust Division’s first bullet: “What are the names of companies, individuals, or organizations that are involved?” This letter has been forwarded via postal mail to each BCS president, athletic director, and coach. No response is the presumed stance of opposed.

Dennis Wagner reports in The Arizona Republic on December 24, 2009, that “former Attorney General Grant Woods turned up “no credible evidence that the bowls management engaged in any type of illegal or unethical conduct.” March 29, 2011 I received an email from Playoff PAC Co-Founder Matthew Sanderson headlined, “Fiesta Bowl Fires CEO Amid Troubling Revelations”. This email was forwarded to a large community of BCS presidents but the reason for illustrating this point is illuminated in the ESPN article ran March 31, 2009 in which former BCS Presidential Oversight Committee Chairman Dave Frohnmayer (who received the KP) states, “Frankly, we’re not concerned about [Utah AG Mark Shurtleff’s antitrust suit]. People can threaten lawsuits all they want, but it’s another thing to be successful … I am convinced that an antitrust suit would be utterly without merit. And I speak as a former state attorney general”.

Washington State University (WSU) has provided a perfectly worded rejection: December 10, 2010 WSU Athletic Director Bill Moos responds via email:

Mr. Kennedy,

President Floyd of Washington State University received your letter regarding the Kennedy Proposal and forwarded it to me for response.
As you know, WSU is a proud member of the Pac-10 Conference. As a Pac-10 member, our institution’s best interests are compatible with those of the conference as a whole. The Pac-10 Conference supports the bowl system and is opposed to an NCAA FBS playoff structure. In addition, the Pac-10 has a long and valued relationship with the Tournament of Roses and Rose Bowl game and see that relationship continuing well into the future.
Bill Moos

The next step in the process is to determine if WSU’s opposition of the NCAA FBS Playoff Structure provided by the KP is in violation of the antitrust laws. The United States of America has three major Federal antitrust laws: The Sherman Antitrust Act, the Clayton Act, and the Federal Trade Commission Act.

Remarks will be limited to the Sherman Act because the July 13th, 2009 response to Mr. Hancock states, “Unless you can provide sufficient evidence that proves the Kennedy Proposal simply and utterly cannot work, then either the BCS is a conspiracy, collusion, or abusing monopolistic power that is restraining trade and commerce within the states and thus in strict violation of the Sherman Act of 1890”.

Mr. Monts testifies, “The principal federal antitrust statue, the Sherman Act, has two main provisions: section 1 of the Act, 15 U.S.C §1, prohibits any “contract, combination…or conspiracy,”—in other words, agreements – in restraint of trade. Section 2 of the Act, 15 U.S.C §2, prohibits monopolization or attempted monopolization of trade or commerce and conspiracies to monopolize.”

April 8th at Southwestern Law School, Mr. Monts, Mr. Fishel, and Gary R. Roberts (Dean and Gerald L. Bepko Professor of Law), will provide an antitrust analysis of college football’s Bowl Championship Series. Professor Roberts testified at the May 22, 1997 Senate Committee on the Judiciary hearing entitled, “Antitrust Implications of the College Bowl Alliance”. His prepared statement for the Judiciary states, “My own view, and probably the best interpretation of the caselaw, is that because antitrust is aimed specifically at aggregations of market power that injure consumer welfare, once a plaintiff establishes significant anticompetitive effects, the burden is then on the defendant(s) to prove that procompetitive benefits clearly and substantially outweigh those negative effects. Put another way, the logic of the Sherman Act suggests that in a rule of reason balance, the tie goes to the plaintiff—or alternatively, that once the plaintiff has established a prima facie case of significant anticompetitive effects, the burden is on the defendants(s) to prove by clear and convincing evidence that there are procompetitive benefits that more than justify the negative effects.”

Mr. Monts testifies the BCS has four pro-competitive benefits, “First, the BCS creates an annual national championship game … Second, the BCS arrangement enhances the quality of non-championship BCS bowls by allowing them to delay their team selections until completion of the regular season … Third, by creating a national championship through the bowls, the BCS preserves and strengthens that broad-based bowl system and thus maximizes the number of post-season playing opportunities for student-athletes and the number of post-season college football games for bowls, television networks, and fans … Fourth, it preserves and enhances the college football regular season and thus allows conferences and institutions to reap maximum benefits from their regular season games and sale of their regular season television rights.” He would also testify, “The BCS Has No Anticompetitive Effects.”

Addressed in the email/letter to Chairman Ray, after the conclusion of the July 2009 Hearing, Mr. Perlman is recorded saying, “But if you can within those restraints, come up with some new deal, we’re willing to take a look at it.” Mr. Hancock furthers the recognition of an NCAA FBS Playoff Structure by saying, “it’s not that the college presidents couldn’t devise a playoff plan; they could, but at a great loss to the game that we all love.”

The restraint concerns of Mr. Perlman and the losses claimed by Mr. Hancock were expressed to Senator Hatch (R-Utah) and Senator Bennett (R-Utah) in a July 9, 2009 response letter from ACC Commissioner John Swofford and former BCS Presidential Committee Oversight Chairman David Frohnmayer, “we have not found an alternative structure that is economically workable, preserves the bowl games, maintains the singular importance of the regular season, fits within the academic calendar in place at most universities, meets other significant educational and athletic concerns related to extension of the FBS football season, and can garner the support of all conferences and universities”.

Mr. Hancock claims the BCS is not perfect and I have not claimed the KP is perfect, but other people have. The 120 FBS universities voluntarily agreed to the current automatic qualification, at-large eligibility, team selection procedures, BCS standings, and standards for future automatic qualification. The BCS is claiming that they can’t provide the players, the students, the fans, nor the television networks with a commercially feasible method to create a number one vs. number two matchup in the BCS National Championship Game (NCG) through a national tournament. Despite the claims that a playoff can be implemented, the BCS administration continues to refute the idea of moving forward and instead grasp on returning to the old bowl system.

If indeed this opposition is in violation of Federal law, any corporation that voluntarily participates in the BCS and is opposed would result in violation. Legal action has not initiated because the University of Washington (UW) has not responded to the same letter that was sent to WSU. The letter President Floyd de facto responded to was the November 2010 letter that was addressed to you and forwarded to each Automatic Qualifying (AQ) President via postal mail in response to “NCAA Prez Preaches Efficient Probes”.

The concepts of the Sherman Act are fully understood and thus Chairman Ray’s response is benevolent to the case: August 2, 2010 Chairman Ray responds to email entitled, “The BCS, Legislation of the KP, 2010 August NCAA Meeting, Antitrust Lawsuit and What’s in it for me” via email:

Dear Brandon:
Clearly, you have put a great deal of time, energy and thought into the issue of a future playoff system. The current BCS contract runs through 2014 and the realignment of teams within the six conferences and other conferences may be subject to change throughout the intervening years. The NCAA is an association of conferences and the conferences must vote on any actions implemented by the NCAA. The BCS conferences have indicated that they will continue to review possible changes in the FBS format to determine a champion as additional suggestions are brought forward. I do not expect any significant changes to occur in advance of the expiration of the current contract and it would be difficult to weigh alternatives going forward and anticipate best practices as long as conference realignment of teams is still possible. I am glad that you and others continue to develop and share ideas so that the best decisions can be made going forward. Thanks taking the time to share your observations with me and others.
Ed Ray

The indicting question is if Mr. Perlman responded to the KP before the finalization of the contracts on July 9, 2009 that Mr. Hancock (BCS), Mr. Monts (BCS lawyer), and Mr. Ray (NCAA) have alluded. Mr. Perlman first responded to the KP on July 8th, 2009 in an email to Administrator Bill Hancock: “You want to deal with this?”

Mr. Perlman acknowledges that he sees something “maybe in the antirust a bit”, but he’s not an antitrust lawyer so he wouldn’t want to try to “weave his way through that”. I have no reason to believe the NCAA or BCS administration will implement the KP without legal action and/or pressure from Congress. Will my review of this arrangement provide merit for the United States Treasury to seize approximately $12.5 billion from the BCS?

Sincerely,

Brandon E. Kennedy Jesse T. Wenzl
Executive Director of the KP Coalition First Member