Wednesday December 9th, 2009

Texas Rep. Joe Barton's BCS-busting bill made its way out of subcommittee Wednesday.

That's a small victory for a noble -- and ultimately doomed -- piece of legislation that may or may not have a higher pork content than Spam.

Now the bill, which would forbid the BCS from marketing its big enchilada as a "championship game" or "title game" just has to pass the full Energy and Commerce Committee, then the House, then the Senate and get signed by the president. Obviously, that's not going to happen. But the fact that this little scrap of bacon fat still sits on the plate is meaningful.

When Barton hauled representatives of the BCS before his subcommittee in May, I wrote that the political pressure for a change in the way major college football determines its national champion wouldn't go away. Some people laughed. Well, it's not going away. And this pork dumpling is just the appetizer.

The BCS recently hired a firm run by former White House Press Secretary Ari Fleischer to help spin its message to the masses. Why? Because BCS and bowl officials know the public hates their system, and they know the politicians -- at a time of great woe on other fronts -- need all the goodwill they can get. If this keeps up, forcing a college football playoff may be the most meaningful thing some incumbent can give his constituents.

This is one issue Republicans and Democrats can agree upon. Utah Sen. Orrin Hatch, a Republican, hates the BCS. So does Utah Rep. Jim Matheson, a Democrat. Wednesday, Matheson called the TCU-Boise State Fiesta Bowl matchup "the Kids' Table Bowl," according to The Salt Lake Tribune.

More important, the BCS needs all the public goodwill it can get in case the government agency with real power to force change comes calling. As anyone from American Telephone and Telegraph will tell you, it's not pleasant to be a heavy-handed monopoly when the Department of Justice comes calling.

Hatch already has called for a DOJ investigation into the BCS. So far, that hasn't materialized, but the BCS should probably tread carefully. With anti-BCS legislation still floating around Washington, enough people will be researching how the system works to realize that it's a cartel that isn't all that different from OPEC. BCS officials and their lawyers have sworn for years that the system was designed to withstand any antitrust challenge, but it's doubtful they want DOJ to call their bluff.

I would explain why, but I'm not a lawyer. Alan Fishel, however, is an attorney. "A group of competitors has come together and collectively agreed that they are going to use market constraints to get the vast majority of the revenues in this market," Fishel said Tuesday. "In any other context, that's a clear antitrust violation."

Fishel has a dog in this hunt. His Washington-based firm, Arent Fox, represents the Mountain West Conference and Boise State, two entities that have been wronged multiple times by a system that denies undefeated teams a chance to play for a national title. "It's the only system," Fishel said, "where perfection isn't good enough."

Fishel is giving his own opinion, but his is an opinion valued by the leaders of the Mountain West and Boise State. He also knows BCS sympathizers will argue that the presidents in the Mountain West and at Boise State voluntarily signed on earlier this year to be part of the BCS through 2014. It's a legitimate question. Why tacitly endorse a system they consider unfair?

"They have no other option," Fishel said. "That 'completely voluntary' argument has absolutely no merit whatsoever. ... If you want to play major college football, you have no choice but to be a part of this."

Fishel argues that cartels throughout history have claimed that if an entity outside the power structure doesn't want to play by their rules, then they're free to go into business on their own or pursue an entirely different industry. In the U.S., such behavior is illegal under the Sherman Act.

Fishel and conference officials have argued that they want access to a championship. They also want money -- or, more specifically, an equal distribution of it. The facts the DOJ would find most interesting are spelled out clearly on the BCS Web site. Last year, the Big East put one team in a BCS bowl (Cincinnati) and received about $17.8 million. The Mountain West put one team in a BCS bowl (Utah) and received $9.8 million. In what universe is that an equitable distribution of revenue?

The longer politicians need anti-BCS sentiment to unify their constituents, the more facts like these will get highlighted. That will not go well for BCS officials, who look worse every time they have to defend their system. That's probably why BCS executive director Bill Hancock -- a truly nice guy with an impossible job -- didn't even bother to argue his system's merits Wednesday after the bill passed the subcommittee. He opted for pure misdirection.

"With all the serious matters facing our country, surely Congress has more important issues than spending taxpayer money to dictate how college football is played," Hancock said. "The consensus among the presidents, athletics directors, coaches and faculty from the 120 major universities is that the current system is the best."

Next time Hancock gets pulled over for going 82 in a 70, he should ask the cop why he's spending taxpayer dollars to catch speeders when he should be out looking for murderers. He probably won't like the result.

So laugh -- or cry -- all you want that your elected officials are spending their time on football, but get used to it. It's either going to be the Congress, the Department of Justice or one of the aggrieved conferences finally getting fed up and filing suit, but as long as the economy is in the tank and no one can agree on healthcare, this bipartisan pork project won't go away until the BCS embraces a more equitable system.

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