The Bowl Championship Series, Conference Realignment and the Major College Football Oligopoly : Revolution Not Reform

The legality of the Bowl Championship Series under the federal antitrust laws has been the subject of much scholarly commentary and Congressional inquiry. The results have been mixed but the majority view seems to be that the BCS passes muster under the Sherman Act. Most of the commentary has examined the application of Section 1 with only passing attention to Section 2. This article makes three points. First, it argues that the focus on the BCS has obscured the attention to a broader set of economic issues relating to the structure of the major college football industry. The Bowl Championship Series and its relationship to the Football Bowl Subdivision of the NCAA has obscured focus on the development of major college football as an oligopoly in which the firms are athletic conferences. The industry is dominated by the BCS automatic qualifying conferences which have engaged in conference expansion and realignments to strengthen their dominance over the industry. Second, the article acknowledges that the regulation of oligopolies has been problematic under the antitrust laws but explores whether the major college football oligopoly may present an appropriate case for regulation as a cartel under section 1 or perhaps as a shared monopoly under section 2. In exploring the application of the Sherman Act to the major football conference oligopoly, this article draws upon themes and analyses in European Community competition law. Unlike the traditional oligopoly, the industry conference members not only engage in parallel conduct but are linked by explicit agreements such as the BCS and NCAA Bylaws on conference structure and amateurism rules. Finally, assuming a strong case can be made for the application of the Sherman Act to the oligopoly, this article discusses whether traditional antitrust remedies are feasible. Accordingly, this article reluctantly considers the propriety of granting the NCAA a limited exemption from the antitrust laws to permit it to regulate the economic structure of intercollegiate athletics while concomitantly subjecting it to oversight by the Department of Education. This article thus calls for revolution not reform