Question for Boneyard lawyers

[noeynox]

Maybe, but I don't believe that anyone advocating brandishing pitchforks today will be rushing to the court if we get in, merely to make a larger point for the rest of the outcasts. That's just how life is for most of us. You may be different.

Your right, in that it will be “their " problem, but i won't be bashing those fan bases about how they don't “belong".

 

[VAHuskyFan]

This would be an awfully tough antitrust case.

Here's the problem: According to the U.S. Supreme Court, NCAA football is "an industry in which horizontal restraints on competition are essential if the product is to be available at all." -NCAA v. Board of Regents, 468 U.S. 85, at 101 (1979).

UConn would have to do a lot more than point to the existence of various horizontal restraints that cause harm as to UConn. Behavior that would, in other industries, be condemned as per se illegal is subject to the rule of reason in the sports context. Shouting "collusion" or "group boycott" is not going to get you anywhere. Every conference is, by definition, a group boycott of other teams. And members of every conference must meet and agree on schedules and rules that all will follow.

To successfully challenge the P5, UConn or another plaintiff would have to demonstrate that a particular restraint or group of restraints is unreasonable -- which would mean demonstrating that they have the effect of (or the clear purpose of) restricting the supply of top tier college football contests. (This would involve defining "top tier" P5 football as a separate product market from G5 football, which while possible would nonetheless be an uphill battle.)

Technically, a plaintiff could succeed just by demonstrating that the effect of the P5 agreements is to restrict the supply of "top tier" football -- but that would involve forecasting the future, which a court would be reluctant to do in such a complex industry. Thus, as a practical matter, a suit is unlikely to be successful without clear evidence of anticompetitive intent (e.g. "starving" non P5 schools of money needed to compete at a "top tier" level.) I would not be at all surprised if this is, in fact, the motivating force behind much of what the P5 is doing -- but finding sufficient evidence to demonstrate that it was a conscious plan or scheme (and not just something one particular AD wrote in an internal email) would be extremely difficult.

 

[Fishy]

When was the last time the Justice Dept. brought a big antitrust case?

Apple, ConAgra, US Airways....they're actually pretty active.

 

[nelsonmuntz]

This would be an awfully tough antitrust case.

Here's the problem: According to the U.S. Supreme Court, NCAA football is "an industry in which horizontal restraints on competition are essential if the product is to be available at all." -NCAA v. Board of Regents, 468 U.S. 85, at 101 (1979).

UConn would have to do a lot more than point to the existence of various horizontal restraints that cause harm as to UConn. Behavior that would, in other industries, be condemned as per se illegal is subject to the rule of reason in the sports context. Shouting "collusion" or "group boycott" is not going to get you anywhere. Every conference is, by definition, a group boycott of other teams. And members of every conference must meet and agree on schedules and rules that all will follow.

To successfully challenge the P5, UConn or another plaintiff would have to demonstrate that a particular restraint or group of restraints is unreasonable -- which would mean demonstrating that they have the effect of (or the clear purpose of) restricting the supply of top tier college football contests. (This would involve defining "top tier" P5 football as a separate product market from G5 football, which while possible would nonetheless be an uphill battle.)

Technically, a plaintiff could succeed just by demonstrating that the effect of the P5 agreements is to restrict the supply of "top tier" football -- but that would involve forecasting the future, which a court would be reluctant to do in such a complex industry. Thus, as a practical matter, a suit is unlikely to be successful without clear evidence of anticompetitive intent (e.g. "starving" non P5 schools of money needed to compete at a "top tier" level.) I would not be at all surprised if this is, in fact, the motivating force behind much of what the P5 is doing -- but finding sufficient evidence to demonstrate that it was a conscious plan or scheme (and not just something one particular AD wrote in an internal email) would be extremely difficult.

The 1984 Oklahoma case is more recent, and more relevant. In a 7-2 decision, the Court ruled that the NCAA was a restrictive organization, despite the acknowledgement that you cited. The court further qualified the citation to apply to "A myriad of rules affecting such matters as the size of the field, the number of players on a team, and the extent to which physical violence is to be encouraged or proscribed, all must be agreed upon, and all restrain the manner in which institutions compete." They never included the right of certain institutions to refuse to play others that wanted to compete on the highest level, or negotiations between and among members of a cartel to divide the postseason by some basis other than free market competition.

Shouting "collusion" and "group boycott" will go very far, particularly since your citation does not say what you think it says. Conferences are on shaky ground from an anti-trust perspective, and the P5 is dead in the water.

Edit: It's worth noting that White and Rehnquist were the two dissenters in the 1984 case, and their argument was predicated on the non-profit nature of the NCAA. That would be a much harder argument for the P5 to make. Maybe one of the hardcore anti-government judges like Scalia or Thomas might vote with the P5, but I think it would be 8-1 or 9-0, if it ever got that far, which it wouldn't.

 

[HuskyHawk]

Apple, ConAgra, US Airways....they're actually pretty active.

The reality is that the FTC is more active than the DOJ. Section 5 of the FTC is incredibly broad, (1)Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful. That's pretty much it. Proving a Sherman Act or Clayton Act case against the P5 would be much more difficult. The FTC is certainly more aggressive. Just discussed this with outside counsel recently.

 

[upstater]

This would be an awfully tough antitrust case.

Here's the problem: According to the U.S. Supreme Court, NCAA football is "an industry in which horizontal restraints on competition are essential if the product is to be available at all." -NCAA v. Board of Regents, 468 U.S. 85, at 101 (1979).

UConn would have to do a lot more than point to the existence of various horizontal restraints that cause harm as to UConn. Behavior that would, in other industries, be condemned as per se illegal is subject to the rule of reason in the sports context. Shouting "collusion" or "group boycott" is not going to get you anywhere. Every conference is, by definition, a group boycott of other teams. And members of every conference must meet and agree on schedules and rules that all will follow.

To successfully challenge the P5, UConn or another plaintiff would have to demonstrate that a particular restraint or group of restraints is unreasonable -- which would mean demonstrating that they have the effect of (or the clear purpose of) restricting the supply of top tier college football contests. (This would involve defining "top tier" P5 football as a separate product market from G5 football, which while possible would nonetheless be an uphill battle.)

Technically, a plaintiff could succeed just by demonstrating that the effect of the P5 agreements is to restrict the supply of "top tier" football -- but that would involve forecasting the future, which a court would be reluctant to do in such a complex industry. Thus, as a practical matter, a suit is unlikely to be successful without clear evidence of anticompetitive intent (e.g. "starving" non P5 schools of money needed to compete at a "top tier" level.) I would not be at all surprised if this is, in fact, the motivating force behind much of what the P5 is doing -- but finding sufficient evidence to demonstrate that it was a conscious plan or scheme (and not just something one particular AD wrote in an internal email) would be extremely difficult.

Those restraints alluded to by the Supreme Court could be anything. It could refer to scholarship limits, transfer limits, it could refer to the treatment of student athletes as amateurs, etc. In any case, you'll have a redefinition of terms, especially 35 or 40 years into the future. For instance, the NCAA was shocked at the Chicago Labor Relations board for diverging so far away from the ruling that favored Brown University over a decade ago. I happen to agree with the NCAA on this one. Either the Brown ruling was wrong and the Northwestern ruling was right, or vice versa. You can't separate the two as the Chicago Board did. This is why one of two things will happen. Either the Chicago decision will be overturned or you will see unions nationwide revisiting the Brown U. decision in light of the Chicago decision.

In other words, when it comes to universities and its students/employees and sports, absolutely nothing is settled.

 

[IthacaMatt]

Apple, ConAgra, US Airways....they're actually pretty active.

Apple v Samsung has been private litigation, not the Justice Dept. US Airways was still allowed to merge with American, creating the biggest airline in the US, so that one was just window dressing. And I guess the ConAgra suit required divestiture of 4 flour mills. Hoo-wee!

I don't see the appetite in the Justice Dept. to take on the NCAA and its billion dollar sports properties, especially when you have such powerful television networks in the middle of it all. When was the last time a merger between media properties was disallowed?

 

[The Funster]

Apple v Samsung has been private litigation, not the Justice Dept. US Airways was still allowed to merge with American, creating the biggest airline in the US, so that one was just window dressing. And I guess the ConAgra suit required divestiture of 4 flour mills. Hoo-wee!

I don't see the appetite in the Justice Dept. to take on the NCAA and its billion dollar sports properties, especially when you have such powerful television networks in the middle of it all. When was the last time a merger between media properties was disallowed?

Well, there you have it. IthacaMatt says it won't happen so it won't. Move along folks, nothing to see here...

 

[IthacaMatt]

Well, there you have it. IthacaMatt says it won't happen so it won't. Move along folks, nothing to see here...

What do you suppose the percentage of probability is that the Justice Dept. would open up an investigation into NCAA football and television contracts? I'm guessing it's 10% or less. Orin Hatch in Utah was out there on behalf of BYU a few years ago regarding access to the BCS, but that never seemed to get any traction, did it?

 

[noeynox]

What do you suppose the percentage of probability is that the Justice Dept. would open up an investigation into NCAA football and television contracts? I'm guessing it's 10% or less. Orin Hatch in Utah was out there on behalf of BYU a few years ago regarding access to the BCS, but that never seemed to get any traction, did it?

He was out there on behalf of Utah, I thought, and once they got in he backed off. It was deemed a legit enough threat to get the Utes in "The Club".

 

[nelsonmuntz]

What do you suppose the percentage of probability is that the Justice Dept. would open up an investigation into NCAA football and television contracts? I'm guessing it's 10% or less. Orin Hatch in Utah was out there on behalf of BYU a few years ago regarding access to the BCS, but that never seemed to get any traction, did it?

Intel and Microsoft have a lot more pull than any university, and they both went through lengthy, expensive investigations. If they are breaking the law, they are breaking the law. I would expect an investigation to begin as soon as a complaint is filed. There may be one underway already.

If your P5 had the pull you think they would, they would have crushed this unionization drive. That is on a lot shakier legal ground than an anti-trust case.

The P5 have already agreed to pay the G5 $85 million annually of what is essentially hush money. If they were not guilty, why would they make their opening offer $85MM/year?

 

[billybud]

Nelson...

There is a long tradition of giving alms.....a few trinkets from your heavy purse given by your coachman to the less fortunate who line the way as your carriage regally sweeps past.

Think of the $85 million in the modern incarnation...as beads flung to the beseeching crowd from the merriment of a parade float.....mere baubles that catch the sun.

 

[upstater]

Nelson...

There is a long tradition of giving alms.....a few trinkets from your heavy purse given by your coachman to the less fortunate who line the way as your carriage regally sweeps past.

Think of the $85 million in the modern incarnation...as beads flung to the beseeching crowd from the merriment of a parade float.....mere baubles that catch the sun.

 

[billybud]

Kudos my friend,,I laughed long

 

[billybud]

Soooo? UConn plays the role of Madame Defarge?

Knitting as the tumbrels roll to the guillitine.

 

[SAMCRO]

Vive la Republique!

 

[HuskyHawk]

Nelson...

There is a long tradition of giving alms.....a few trinkets from your heavy purse given by your coachman to the less fortunate who line the way as your carriage regally sweeps past.

Think of the $85 million in the modern incarnation...as beads flung to the beseeching crowd from the merriment of a parade float.....mere baubles that catch the sun.

While it is a clever image, Nelson is right [ow...the pain!] and college football and college sports is a pittance in the real economy. Google and Apple are currently having issues (Google in EMEA, Apple U.S.) with antitrust cases. Either of them could buy the entire world of college football with cash on hand. I keep hearing how "big" the money is when the biggest of all these schools (UT) makes a hundred and fifty million or so a year, gross. That is a "small business" folks. It certainly isn't a lot of money. I've been involved in single deals larger than that.

So stop thinking that they could throw money at this, rather the opposite is true. The government could basically ruin them just with the costs of handling a major case. What they do have are a large loyal following of people who can vote, and politicians who need to get elected. Nobody who does anything to hurt Bama or Auburn would ever be electable in Alabama...hell they may not escape the state alive. Most of the players here are state universities, and they have pull because they have alumni who vote and because they are essentially State actors. That is their leverage against the government. But it cuts both ways...should several state Us leave other state Us on the sidelines, that leverage will be applied in the opposite direction. As long as pretty much every major state university is in on the game, it will go off without incident.

 

[The Funster]

In addition, the P5 conferences have shown very little willingness to really work together. Sure they want to breakaway together but while they discuss that amongst themselves they are also looking to poach from each other to advance their own conference. It's quite possible that the spectre of Federal investigation could force them to work truly cooperatively together but they have no prior experience doing so and, IMO, that would be another obstacle for them to overcome. If the P5 were working more like, say, the NFL, then I'd give them a better chance but the conferences are out for themselves on almost every other issue.

 

[nelsonmuntz]

While it is a clever image, Nelson is right [ow...the pain!] and college football and college sports is a pittance in the real economy. Google and Apple are currently having issues (Google in EMEA, Apple U.S.) with antitrust cases. Either of them could buy the entire world of college football with cash on hand. I keep hearing how "big" the money is when the biggest of all these schools (UT) makes a hundred and fifty million or so a year, gross. That is a "small business" folks. It certainly isn't a lot of money. I've been involved in single deals larger than that.

So stop thinking that they could throw money at this, rather the opposite is true. The government could basically ruin them just with the costs of handling a major case. What they do have are a large loyal following of people who can vote, and politicians who need to get elected. Nobody who does anything to hurt Bama or Auburn would ever be electable in Alabama...hell they may not escape the state alive. Most of the players here are state universities, and they have pull because they have alumni who vote and because they are essentially State actors. That is their leverage against the government. But it cuts both ways...should several state Us leave other state Us on the sidelines, that leverage will be applied in the opposite direction. As long as pretty much every major state university is in on the game, it will go off without incident.

It is a stretch to think that fans will get that worked up about the right of their school to exclude other schools. Fans don't care that much about this issue outside of a handful of schools like UConn, Cincinnati and BYU where conference affiliation is the biggest threat to our existence. You think SEC fans weren't laughing their asses off when Muschamp went down to Georgia Southern last year? You think that they are going to vote as a block to prevent Muschamp from losing to Georgia Southern again?

Politicians cut funding to their own State U every year, and have been doing so for 3 decades. 99% of fans don't think about this stuff for 10 seconds in a year, and when they do, they laugh about Muschamp losing to Georgia Southern. There is not a "pro oligopoly" voting block out there.

 

[nelsonmuntz]

One thing that has occurred to me is that the solution for this would not be that egregious for the majors. I think if they did the following they would dramatically reduce their anti-trust problem:

1) 8 team playoff that is purely merit based. They can include conference champs, but has to be merit driven because that makes it non-exclusionary and non-collusive. Pre assigning post season matchups through bowl affiliations is probably the single biggest anti-trust problem the P5 have.

2) Only broadcast rights on the conference schedules are sold by the conferences. Non-conference games would belong to the individual schools. One of the anti-trust problems the P5 have is that so much of the content is controlled by and priced by what is effectively a cartel. A conference TV contract is a reasonable structure to have for conference games and probably defendable as a negotiating block for those games, but the fact that the conferences control and negotiate the non-conference content is a problem legally.

3) No explicit exclusionary scheduling restrictions based on conference affiliation. They can have recommended scheduling requirements, such as minimum # of OOC games against Top 50 opponents and the such and I don't see a problem with a football RPI that dictates SOS, but they just can't dictate specific schools that are excluded from scheduling.

I think if the P5 took those 3 steps, an anti-trust case would be a lot harder to prosecute. Ironically, the college football super-powers would love #2.

 

[IthacaMatt]

Intel and Microsoft have a lot more pull than any university, and they both went through lengthy, expensive investigations. If they are breaking the law, they are breaking the law. I would expect an investigation to begin as soon as a complaint is filed. There may be one underway already.

If your P5 had the pull you think they would, they would have crushed this unionization drive. That is on a lot shakier legal ground than an anti-trust case.

The P5 have already agreed to pay the G5 $85 million annually of what is essentially hush money. If they were not guilty, why would they make their opening offer $85MM/year?

1. Microsoft's antitrust trial was probably the biggest of our generation, but it was almost 20 years ago.

2. I have never heard anything about this $85M per year. Do you have a link for that? (And I'm still unclear on what "G5" stands for, if you can fill me in.) Thanks.

 

[Fishy]

2. I have never heard anything about this $85M per year. Do you have a link for that? (And I'm still unclear on what "G5" stands for, if you can fill me in.) Thanks.

It's the so-called Group of Five...the American, Mountain West, Conference USA, MAC and Sun Belt.

Those conferences split $85M in the current playoff system.

 

[woomba]

It's the so-called Group of Five...the American, Mountain West, Conference USA, MAC and Sun Belt.

Those conferences split $85M in the current playoff system.

That reminds me - did the G5 conferences decide on how that money will be split up? I recall that topic was punted over to the G5 conference commissioners to figure out for themselves. Depending on how that deal is structured it can mean that any team that place in a contract bowl and up can take in the majority of the pie so the top teams in the G5 may not be in that much of a monetary disadvantage.

 

[Fishy]

Apple v Samsung has been private litigation...

What does Apple vs. Samsung have to do with anything?

 

[itgoeslike]

This is like deja vu all over again. . .

http://usatoday30.usatoday.com/sports/college/football/2011-04-20-bcs-anti-trust-lawsuit_N.htm