January 7, 2009 7:44 PM

The Gino Torretta Chronicles: A BCS-Themed Look at Sports and the Law

Posted by Zach Lowe

The Am Law Daily has never been a big college football fan; we grew up in Connecticut, far from the big football powers and crazy alumni (college hoops is a different story). There's also the fact that we just can't get behind a sport that decides its national champion by using a mathematical equation so convoluted even the president-elect, besieged by massive world calamities, feels the need to call for its overhaul.

But nothing creates excitement in these parts like the threat of litigation, and that's exactly what we've got in the college football realm, courtesy of Mark Shurtleff, attorney general of Utah. Shurtleff is steamed because the University of Utah Utes are undefeated but have no chance at this year's national title--in part because they belong to a conference (the Mountain West Conference) that does not receive an automatic bid to play in one of the four bowl games that make up the Bowl Championship Series.

A quick primer: Under BCS rules, the nation's two top-ranked teams--as determined by human polls and computer rankings that take into account strength of schedule, margin of victory, and other factors--play each other in one of those bowls, with the winner named national champion. While teams such as Utah can theoretically qualify for the national championship game, for various reasons the odds are stacked against them.

Shurtleff claims that because the BCS robs teams like the Utes of a fair shot at the crown and deprives smaller conferences of millions in revenue, the system may violate federal antitrust law and says he's thinking about filing a lawsuit on that basis against the BCS. (How much money is at stake? The six conferences that receive automatic bids to BCS bowls get $18 million each; the five smaller conferences whose teams are eligible for the other two BCS spots split $9.5 million plus 9 percent of revenue from television and other sources, according to ESPN.)

So, could Shurtleff win this lawsuit? We checked with Marc Edelman, a visiting law professor at Rutgers University and a sports law expert, and he said such a suit faces an uphill battle. Shurtleff, Edelman says, would have to prove that BCS has market power and that consumers are hurt by a lack of fair competition. Sure, football fans may be mad that a good team gets squeezed out of the championship picture, but Edelman says that's probably not a strong enough argument to topple the BCS. After all, viewers can still watch Utah play on television, and reporters who vote in the Associated Press poll can still award Utah the AP's national championship if they want.

Another potential obstacle: Utah would be suing its own conference (which belongs to the BCS) and the National Collegiate Athletic Association, which controls the BCS. Winning a suit against an entity to which one belongs is possible, but it's difficult, Edelman says--especially if you've basically agreed to follow that entity's rules by virtue of joining it. Edleman says Madison Square Garden--parent company of the National Hockey League's New York Rangers (Am Law Daily ed. note: BOO!)--encountered a similar hurdle in its unsuccessful suit against the NHL over the league's claim that it had the right to control the team's website. 

But enough about college football. Here's what else caught The Am Law Daily's interest in the last few days:

• It looks like the Chicago Cubs are about to be sold, and, while we don't know who the new owner will be, as we reported last month, it's not going to be to Mark Cuban, billionaire owner of the NBA's Dallas Mavericks. Paul, Weiss, Rifkind, Wharton & Garrison and Foley & Lardner are advising two of the three finalists in the bidding for baseball's lovable losers. Cuban, a prolific blogger, has a fun post about the bidding process that our corporate law readers will like. He says he threw in the towel when banks tightened their lending standards amid the credit crisis. The only other option was to partner with other investors and pay in cash, but Cuban wasn't about to do that--not with so many distressed assets available on the cheap. "Cash was and is king," Cuban says. Of course, Cuban dropped out of the bidding right around the time the SEC charged him with insider trading.

• This one's for our New York readers: The Ultimate Fighting Championship, kingpin of mixed martial arts, is once again lobbying New York lawmakers to legalize the sport here, according to ESPN. League officials tried last year, but legislators voted against them, partly because of concern over the sport's brutality.

UFC President Dana White says he's optimistic about his chances this year, and experts cited by ESPN suggest that squeamish legislators might be a little less squeamish this year when they think about the revenue the sport could bring to the cash-starved state. We reached out to the UFC to find out if it has hired counsel for its lobbying efforts, but hadn't heard back as of late Wednesday afternoon. (We doubt the UFC attorneys will be as tough as Richard Wilner of Wilner & O'Reilly, the longtime representative of now-defunct UFC competitor Elite Xtreme Combat who gave a memorable interview to our colleague Brian Baxter over the summer). 

• We end with some steroid-related items. Anytime Judge Richard Posner writes, especially about doping issues, we listen. He has a recent article out in the Duke Law Journal (hat tip: the Sports Law Blog) on the economics and ethics of steroid use among professional athletes. (The article is available below). As usual, it's interesting stuff, and it's difficult (and precarious) to try and summarize it here. Posner argues that there might be an "optimal positive level of sports doping," one that improves the on-field product without compromising what fans love about sports. Posner and the author whose book he reviews in the article (Michael Sandel) have an interesting take on what exactly it is fans enjoy about sports. They say sports gives fans a chance to see people with exceptional innate talent excel in relation to everyone else. Steroid use would only hurt sports, Posner suggests, if it allowed the mediocre players to become as good as the stars. At that point, economics (the lack of fans) would force owners to take action and limit steroid use. (Posner does suggest there are other costs associated with steroids--particularly health effects and the possibility that more children will take them). 

• Speaking of steroids, guess who had hip surgery and reportedly wants to return to baseball? The Am Law Daily doubts any team will sign Mr. Bonds, even if he could still be a productive hitter at 44--and he probably could be. The public relations hit would just be overwhelming, even if Bonds were willing to sign for the minimum salary. Meanwhile, the Major League Baseball Players Association still hasn't filed its grievance claiming team owners are colluding against Bonds, despite announcing in October it had evidence of such collusion. The Am Law Daily waits eagerly.

Download Posner.duke

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