• Anthony Studnicka

A Level Playing Field? Analyzing the Antitrust Implications of the BCS and College Football Playoff

By: John Rigby



“(The College Football Playoff) is subterfuge for fueling the arms race…and is an impetus for creating a plutocracy.”[1] – Former Boise State University President Bob Kustra


The College Football Playoff (“CFP”) recently made waves by announcing it is considering expanding its current system from four teams to 12 teams, most likely beginning in the 2023 season. Much criticism has been directed towards the playoff since its inception – it’s too restrictive, it favors Power Five teams over Group of Five, it’s the same teams over and over again. Another consideration is that perhaps the current structure violates antitrust law. Below is a detailed blog post that tracks the general history of Division I college football, its postseason structure, and its relationship with antitrust law. It also looks generally what a hypothetical antitrust lawsuit against the current CFP would look like. This blog post is adapted from a longer seminar paper I wrote as a law student at the UCLA School of Law in the spring of 2019.

I. Board of Regents

Of course, the NCAA and college football aren’t strangers to antitrust litigation; the most historically significant case involving college football and the NCAA occurred in 1984 when the U.S. Supreme Court decided NCAA v. Board of Regents. Board of Regents concerned the NCAA’s television broadcast plan and “the limits it imposed on national college football broadcasts.”[2] The NCAA had long placed a two-game maximum for each team to appear on national television during the regular season, with the rationale being that a restraint on national television appearances would help protect live attendance at games and serve as a necessary measure to maintain competitive balance among teams.[3]

In a 7-2 decision, the U.S. Supreme Court didn’t buy that rationale, ruling that the NCAA couldn’t limit the number of times a team appeared on national television.[4] Associate Justice John Paul Stevens’s majority opinion was a blistering rebuke of the NCAA, saying that the organization’s controls over televised college football games recalled a “classic cartel” that “restricted rather than enhanced the place of intercollegiate athletics in the nation’s life.”[5] Stevens wrote that, despite justifications for the NCAA’s controls, they could be implemented by “less restrictive means.”[6]

Board of Regents proved to be an “earthquake in collegiate athletics.”[7] For one, it launched a “television war” that “set the stage for the breakup of the status quo…and become a catalyst for [] football’s financial disparity, forcing college administrators into a new array of choices and compromises while elevating the game on the field to an even greater level of exposure.”[8] Even though Board of Regents gave fans more access to teams than ever before, many commentators felt it negatively altered the ecosystem in college football in “ways that harmed consumers, particularly the fans of smaller, mid-major programs.”[9] Put more succinctly, since 1984, money, television, and major college football have gone hand-in-hand, and most of the sport’s “economic growth can be attributed to the influx of monies flowing from media rights deals made possible” by Board of Regents.[10]

Since Board of Regents, television revenues have skyrocketed, now totaling in the billions for the Power Five conferences (ACC, Big Ten, Big 12, Pac-12, and SEC).[11] This explosion, in turn, has led to a growing economic gap between the haves and have-nots of college football. Athletic departments, on average, at public Group of Five schools get “roughly 58 percent of their revenue from public subsidies (student fees, direct and indirect institutional support, and state money), while athletic departments at public Power Five schools are subsidized at a rate of 5.3 percent.”[12]Because of their lucrative television deals, Power Five conferences can lavishly spend money on new facilities and capital projects to draw recruits, while Group of Five teams are often forced to operate deep in the red or rely on taxpayer dollars or student fees just to survive. Recent television deals negotiated largely by the richest football schools and conferences have “only exacerbated this inequality.”[13]

Some administrators at smaller programs say this divide feels deliberately orchestrated by the major schools, and it is leading to an existential crisis for many Group of Five teams. Boise State University President Bob Kustra said in 2016: “The high-resource conferences have a very subtle but powerful strategy—to separate themselves from the have-nots …the end result is that the high-resource conferences are sucking up all of the money, and the low-resource conferences are getting left behind. This isn’t fair…and it’s not healthy for college football.”[14]

II. THE BCS TO THE COLLEGE FOOTBALL PLAYOFF

This meteoric rise in broadcasting revenues for the major conferences following Board of Regents coincided with a revamp of the sport’s crowning of its national champion––the Bowl Championship Series (“BCS”). Introduced in 1998, the BCS relied on a combination of polls and objective statistical formulas to determine team rankings, ultimately narrowing down the field to two teams to play in the “BCS National Championship Game.”[15] After several seasons that saw multiple teams share a national championship (most notoriously, the undefeated Michigan Wolverines and Nebraska Cornhuskers in 1997) because they played in different bowl games, this was the first time college football had ever implemented a true national championship game between the #1 and #2 ranked programs.[16] Even though a true championship was finally introduced to the sport, this change came with vociferous criticism – many commentators, for example, found the computer-driven polls to be confusing and obtuse and that it removed the human element from the game. And several legal scholars felt that the BCS system was prone to antitrust liability because, despite its objective formulas and computer-based algorithms, any procompetitive justifications could have been achieved, recalling Stevens in Board of Regents, through “less restrictive means.”[17] As the BCS went on, this criticism only got louder. In 2008, ten years after the first BCS championship game, Utah’s Attorney General Mark Shurtleff said, “We’ve established that from the very first day, from the very first kickoff in the college season, more than half of the schools are put on an unlevel playing field…they will never be allowed to play for a national championship.”[18] (Shurtleff had good reason to be irate at the BCS: The University of Utah had gone 13-0 that season after beating powerhouse Alabama in the Sugar Bowl, yet were denied a shot at ever playing in the BCS National Championship game, despite having an undefeated record and then-#1 Oklahoma and #2 Florida both having losses). And it wasn’t just state governments that got involved in the criticism -- in May 2011, the Department of Justice warned in a letter to NCAA President Mark Emmert that the agency had serious concerns relating to the BCS’s structure, and even suggested: “that the system may not be consistent with the competition principles expressed in federal antitrust laws.”[19] There was also a political action committee – the Playoff PAC – that served as an anti-BCS interest group that donated money to political candidates who advocated for abolishing the BCS and implementing a college football playoff.[20] Even former President Barack Obama weighed in, saying in 2010 that he was going to “throw his weight around a little bit to nudge college football toward a playoff system.”[21]

With state and federal lawmakers, university administrators, and the general public fed up, the BCS was finally replaced in 2014 by the CFP.[22] As currently structured, the CFP committee selects four teams, and offers two semifinal games, with the winners of each game then advancing to play in the CFP National Championship. With the introduction of the CFP, the NCAA breathed a deep sigh of relief; one commentator said the implementation of the CFP “put off the potential of antitrust litigation for at least a couple years until its impact could reliably be observed.”[23] The changes carried the “potential to diminish the strength of legal challenges” the NCAA was facing over its BCS bowl system, one sports economist said.[24] The state of Utah dropped its investigation after news that the BCS would be no more.[25]

Less than eight years after the CFP’s introduction, however, it is not even close to the panacea the NCAA had hoped it would be. Many of the same criticisms of unfairness, system-rigging, and class division that plagued the BCS have carried over to the new format. Like the BCS, the current CFP system continues to favor teams from conferences with more money and resources, which is illustrated by the “fact that each major conference has automatic representation on the CFP selection committee”[26] (along with Notre Dame). The Group of Five conferences are not all represented.[27]Moreover, unlike the objective formula used by the BCS, the new system relies wholly on subjectivity, where 13 members of a selection committee pay far more attention to the eye test than to the few objective markers in a vastly uneven college football landscape.[28] Additionally, worries of lobbying by power conferences and corruption of officials are just as prevalent.[29] As a result, an inherent unfairness still hovers over the system, and Group of Five teams have reason to feel excluded, if not threatened, because it seems that “any hope that a four-team playoff would open the door for a Group of Five national championship bid has evaporated.”[30]


III. LITIGATING THE 4-TEAM COLLEGE FOOTBALL PLAYOFF


What would an antitrust suit against the current College Football Playoff look like? Any potential antitrust challenge to the CFP would be brought under the Sherman Antitrust Act of 1890 (“Sherman Act”). The Sherman Act was intended to curb business activities deemed anticompetitive,[31] and designed to “protect the marketplace from the monopolistic destruction of competition.”[32] The plaintiffs could argue that the CFP is antithetical to these core Sherman Act principles because it empowers the Power Five at the expense of the Group of Five.[33]

The Sherman Act consists of two main sections, one of which is relevant to our analysis here. §1 states in part that, “Every contract, combination in the form of trust otherwise, or conspiracy, in restraint of trade or commerce among the several States…is declared to be illegal.”[34] Thus, plaintiffs engaged in an antitrust suit against the CFP would primarily focus their complaint on Sherman’s §1, in arguing that the CFP is as a contract that works a restraint on trade.[35]

To start, a plaintiff has to define the market being impacted. A plaintiff, in this case, would probably define the relevant market as “college football postseason games.” (The defined market in Board of Regents, for example, was “live televised college football games.”[36]) If a court found that this market was acceptable, the case would then proceed using one of two standards of review: a per se review or “rule of reason” review, with rule of reason being more deferential to defendants. Even with this more deferential standard, however, the plaintiffs would still have an extremely compelling argument. (The Court in Board of Regents, for example, analyzed under “rule of reason” review, and still ultimately found for the plaintiffs.[37]). In analyzing complaints under rule of reason, courts will generally start with an analysis of whether the restraint adversely affects competition in the relevant market.[38] If the plaintiff succeeds, the burden then shifts to the defendant to show that the restraint has “procompetitive” benefits.[39] Finally, after the burden shifts back to the plaintiff, the court will then determine whether the asserted “procompetitive” benefits could be achieved via “less restrictive means.”[40]

The first question is who would be the plaintiff? Two constituencies would be ideal plaintiffs in a hypothetical CFP case: student-athletes and consumers. Players, of course, would be sympathetic plaintiffs because they are being impacted by the CFP’s anti-competitive arrangements.[41] Additionally, consumers are also harmed by a four-team CFP, as the format is not at all responsive to high consumer demand for more premium postseason college football games. Overall, the current system is not “fair and reasonable,” and that the numbers prove it: each of the teams that have been in the College Football Playoff has been from a Power Five conference. Ultimately, there are three compelling claims plaintiffs could make that would help support their prima facie case: 1) A restricted format that leads to revenue discrimination, 2) a reduction in output, and 3) an inherent bias.


a. Plaintiff’s Burden to Prove Restraint on Trade


i. Restricted Format and Revenue Discrimination

A plaintiff could first argue that the restrictive format presents a near impossibility for Group of Five access.[42]Currently, with only four spots available and five major conferences vying for them, this spells a “continuing trend of future exclusion” for smaller programs.[43] Two conferences – the SEC and the ACC – have had a team in the CFP every year since its inception.[44] The plaintiffs could argue that “the format is inherently anti-competitive and deprives the Group of Five conferences – already at an economic disadvantage – of significant revenue.”[45] One of the benefits that CFP advocates argued would be an improvement over the BCS was that a larger revenue pie would be spread more fairly among all of the college football conferences.[46] However, the proceeds from the CFP are not divided equitably – in 2018, for example, the 65 schools making up the Power Five conferences collected 75 percent of the proceeds, and the paltry “remaining 25 percent was distributed to the 60 remaining institutions” that make up the Group of Five.[47] In his 2016 book, Billion-Dollar Ball: A Journey Through the Big-Money Culture of College Football, Pulitzer Prize-winning journalist Gilbert Gaul calls the four-team CFP system “ridiculously lucrative,” where the “five power conferences…eventually stand to take in about 325 million from the semifinals and championship game, or about 66 million each – effectively double what they got under the BCS.”[48] In just the first year of the CFP, for example, Power Five conferences saw increases in base revenues from $28 million in 2013-2014 to nearly $50 million in 2014-2015, further adding to the class divide between the Power Five and the Group of Five.[49]


ii. Reduction in Output

While some argue that antitrust law would “be the strongest weapon in student-athletes’ arsenal to challenge the impact of the (College Football Playoff)”[50], an equally strong claim could be made by consumers, who could argue that the limited output is not consistent with high consumer demand.[51] This might be the clearest violation of black-letter antitrust law because a restraint that reduces output is the type of restraint that “an observer with even a rudimentary understanding of economics could see” the anti-competitive effect of.[52] The plaintiffs could argue that, like in Board of Regents, the current structure is wholly “unresponsive to viewer demand and unrelated to the prices that would prevail in a more competitive market.”[53] The plaintiffs could argue that there is less frequency in high-profile, premium college football games by only limiting the CFP to four teams and three total games. Thus, consumers are shortchanged as a result.


iii. Inherent Bias

Lastly, the plaintiffs could point to the inherent bias that has plagued the CFP selection process. Like the BCS, there are worries that the CFP has been unduly influenced by the media[54] over its decision-making.[55] The CFP has also structural remnants of the BCS -- the same legal entity, Bowl Properties, LLC[56], that owned the BCS now owns the CFP, and the CFP’s executive director also previously served as executive director of the BCS. One legal commenter says about the four-team CFP: “It’s the same business, with the same people, and it’s going after the same goal – let’s give the appearance of fairness, let’s give the appearance of a level playing field, let’s give the appearance of opportunity, but in reality, let’s limit this gigantic bag of money to only conferences that we think deserve it.”[57] All of these are things the plaintiff could use to argue that the CFP’s inherent bias works as a restraint on trade.


b. “Pro-Competitive” Response from the CFP

If plaintiffs were to satisfy their burden of demonstrating that a 4-team CFP restrains trade, the burden would then shift to the CFP to rebut the plaintiff’s prima facie case. Here, the CFP would counter by arguing that the current format, despite its flaws, encourages a “pro-competitive” spirit, because two semifinal games and a “single national championship game elicit build-up and excitement among spectators and fans.”[58] Additionally, the CFP would try to use some of Stevens’s Board of Regents dicta for its advantage. Stevens detailed several types of restrictions that an organization like the NCAA can place on consumers and student-athletes, such as “defining the conditions and rules of a contest.”[59] The CFP could argue that, by working with the NCAA, it should be allowed to implement a more restrictive playoff policy because it helps the NCAA “promote quality among its member institutions.”[60]


c. Burden Shifts Back to Plaintiff to Argue “Less Restrictive Means”

If the CFP were to successfully rebut the plaintiffs’ restraint on trade arguments, the burden would then shift back to the plaintiff to show that, despite any justifiable “pro-competitive” arguments advanced by the CFP, there are less restrictive alternatives available that could enhance both competition and consumer demand. If it is clear that expanding the CFP “would effectively increase measures of consumer demand, then a court should find that that is a sufficient alternative” to the current system.[61] Expanding the CFP is a less restrictive alternative that could widen consumer demand, all the while still offering what the current playoff structure sets out to accomplish: “traditional bowl games, true playoff games, and an indisputable national championship.”[62]

While Justice Stevens in Board of Regents said that the NCAA could implement reasonable restrictions in order to maintain the quality of the “product,”[63] he emphasized that any regulations “may not reduce the importance of consumer preference in setting price and output,” nor may the restrictions “blunt the ability of member institutions to respond to consumer preference.”[64] It is clear that the CFP does both. The plaintiffs thus could hammer home the argument that Justice Stevens found compelling in Board of Regents––that “consumption will materially increase if controls” by the CFP are removed.[65] To support this, the plaintiffs could point to both formal and informal polling data that demonstrates strong[66] consumer appetite for expansion.[67]


IV. FIXING THE SYSTEM

Expanding the football playoff to a system that includes both automatic and at-large bids will “reward[] the most deserving teams while also preserving the importance of the regular season.”[68] An expansion will increase excitement that college football fans have surrounding the postseason, especially if there are new teams allowed to play in the playoff for the first time.[69] Both Alabama and Clemson, for example, have made the CFP in every year but one. Together with Ohio State, the three teams have occupied 16 of 28 total playoff spots, as of the end of the 2020 season. Fans are already tuning out from same team fatigue.[70] More fans could eventually tune out if they see the same dominant teams play each other year.[71]

Additionally, as the revenue from the playoff games thus far has shown, this would only result in more of a cash explosion for ESPN (the exclusive broadcaster of the CFP until the 2025 season) and the conferences. As B. David Ridpath, a Forbes writer puts it, “Money talks, and more playoff contests would most likely increase the College Football Playoffs’ value to more than $1 billion per year.”[72] Some estimates have put the total from a 12-team play at around 2 billion dollars.[73]

The idea of expansion is not without criticism, as there are many logistical challenges that have yet to be ironed out. Further, some say that it would not make the CFP more competitive[74] and it would in fact lead to more blowouts.[75]Yet the data does not reflect this so far. Group of Five schools have already demonstrated their competency against elite Power Five programs in major bowl games during the BCS-era, for example, Group of Five schools have beaten Power Five schools in five out of seven opportunities in New Year’s Day bowl games.[76] Most famously in 2017, an undefeated Group of Five program Central Florida beat Auburn – a team that had previously defeated two #1 ranked teams in the regular season – handedly in the Peach Bowl, after being denied a shot at competing in the CFP.[77] Further, just last year, the Cincinnati Bearcats nearly beat the SEC powerhouse Georgia Bulldogs in the Peach Bowl, losing on a last-second field goal. These teams deserve a chance to play in college football’s greatest showcase, but it is “clear that the current power structure will never let [teams like UCF and Cincinnati] have a shot at an actual national title.”[78]


Conclusion

The crucial role that football plays in contemporary American university life cannot be exaggerated. Football has proven to be almost a necessity for the livelihood of smaller universities; many administrators like Boise State’s Kustra must use the sport as a way to leverage their profile to attract more student applications and state resources.[79] For these schools that rely on football just to survive, this is no hyperbole. Without dramatic expansion, these teams and their fans may need to look to the judicial system for relief. Ultimately, it “may well be up to Sherman to bring fair competition back to college football.”[80]


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John Rigby is a graduate of UCLA Law and a current Associate Attorney at Robbins Geller Rudman & Dowd LLP.

[1] Gilbert Gaul, Billion-Dollar Ball: A Journey Through the Big-Money Culture of College Football (New York: Penguin Random House, 2016), at p. 207. [2] Thomas A. Baker III and Natasha T. Brison, From Board of Regents to O’Bannon: How Antitrust and Media Rights Have Influenced College Football, 26 MARQ. SPORTS L. REV., 331, 332 (2016) [3] Patricia L. Pacey, The Courts and College Football: New Playing Rules Off the Field? 44 AM. J. ECON. & SOC. 145, 148 (1985). [4] National Collegiate Athletic Ass’n v. Board of Regents of the University of Oklahoma et al., 468 U.S. 85, 87 (1984) [5] For further reading on the long and lucrative symbiotic relationship between big-time college football and television broadcast networks, see Keith Dunnavant, The 50 Year Seduction: How Television Manipulated College Football, from the Birth of the Modern NCAA to the Creation of the BCS(New York: St. Martin’s Press, 2004), at p. 165. [6] Board of Regents, 468 U.S. at 97. [7] See Dunnavant, supra note 5, at p. 172. [8] See Dunnavant, supra note 5, at p. 172 [9] See Baker III and Brison, supra note 2, at p. 344. [10] Id. [11] Id. at 332. [12] Jon Solomon, SEC commissioner explains why Group of Five should ‘be careful’ about playoff idea, CBS SPORTS (Jan. 2, 2017). https://www.cbssports.com/college-football/news/sec-commissioner-explains-why-group-of-five-should-be-careful-about-playoff-idea/. [13] See Gaul, supra note 1, at p. 208. [14] Id. at 207. [15] Andy Staples, The Chaos and Consequences of the BCS, 20 Years After Its Inaugural Season, SPORTS ILLUSTRATED (July 9, 2018). https://www.si.com/college-football/2018/07/09/bcs-history-20th-anniversary-controversy-tennessee-florida-state. [16] Id. [17] Nathaniel Grow, Antitrust & the Bowl Championship Series, 2 HARV. J. SPORTS & ENT. L., 53, 98 (2011) [18] Marc J. Spears, Utah AG: BCS may violate antitrust law, ESPN (Jan. 7, 2009). http://www.espn.com/college-football/news/story?id=3814472. [19] Brian Frederick, It’s About Time the Justice Department Investigated the BCS, HUFFINGTON POST (Jul. 10, 2011). https://www.huffpost.com/entry/bcs-justice_b_859595. [20] Jordan Fabian, Anti-BCS Group Launches New Ad Targeting Fiesta Bowl, THE HILL (Jan. 4, 2010). https://thehill.com/blogs/blog-briefing-room/news/74227-playoffpac-launches-new-ad-targeting-fiesta-bowl. [21] ESPN.com news services, BCS under scrutiny from Capitol Hill, ESPN (Jan. 30, 2010), http://www.espn.com/college-football/news/story?id=4870657. [22] B. David Ridpath, The College Playoff and Other NCAA Revenues Are An Expose of Selfish Interest, FORBES (Jan. 17, 2017). https://www.forbes.com/sites/bdavidridpath/2017/01/17/college-football-playoff-and-other-ncaa-revenues-is-an-expose-of-selfish-interest/#5ffdeacd4e1a. [23] Brandon C. Miller, Playoffs?! Are You Kidding Me, Playoffs? An Antitrust Analysis of College Football’s New Playoff Format, CARDOZO ARTS & ENT. L. J., 531, 543 (2014) [24] Jason M. Breslow, College Football’s ‘Final Four’ Could Quell Antitrust Fight, PBS.ORG (Jun. 27, 2012). https://www.pbs.org/wgbh/frontline/article/college-footballs-final-four-could-quell-antitrust-fight/ [25] Jeff Finley, Utah A.G. drops antitrust investigation of college football’s BCS system for now, DESERET NEWS (Oct. 27, 2012), https://www.deseret.com/2012/10/27/20508821/utah-a-g-drops-antitrust-investigation-of-college-football-s-bcs-system-for-now. [26] See Gaul, supra note 1, at p. 207. [27] Id. [28] George Schroeder, Things We’d Change in Sports: Expand College Football Playoff, USA TODAY (Mar. 11, 2019). https://www.usatoday.com/story/sports/ncaaf/columnist/george-schroeder/2019/03/11/college-football-playoff-expansion/2991149002/. [29] Sally Jenkins, College football playoff proposals are repackaged corruption, THE WASHINGTON POST (May 31, 2012). https://www.washingtonpost.com/sports/colleges/college-football-playoff-proposals-are-repackaged-corruption/2012/05/31/gJQAbsZP5U_story.html?utm_term=.218387fe5274. [30] See Schroeder, supra note 28. [31] Jude D. Schmit, After Further Review: Whether The College Football Playoff Falls Short of the Antitrust Marker, U. DEN. SPORTS & ENT. L.J., 39, 77 (2015). [32] Id. [33] Id. at 108. [34] 15 U.S.C.A. §1. [35] Id. [36] Board of Regents, 468 U.S. at 84. [37] Id. at 87. [38] See Schmit, supra note 31, at p. 83 [39] Id. [40] Id. [41]Daniel Ravicher (@danravicher). Dec. 1, 2018, 5:21 PM. https://twitter.com/danravicher/status/1069038921118621698?lang=en [42] See Schmit, supra note 31, at p. 87. [43] Id. [44] Andy Staples, Why a 12-team College Football Playoff is a good solution. Hang on, hope is on its way, THE ATHLETIC (June 14, 2021). https://theathletic.com/2649167/2021/06/14/why-a-12-team-college-football-playoff-is-a-good-solution-hang-on-hope-is-on-its-way/. [45] See Schmit, supra note 31, at p. 87. [46] Kristi Dosh, How College Football Playoff’s Payouts Compare With BCS’s: A Conference-by-Conference Breakdown, FORBES (Jan. 1, 2018). https://www.forbes.com/sites/kristidosh/2018/01/01/how-have-college-football-playoff-payouts-compared-to-bcs-a-conference-by-conference-breakdown/#784cfc8e2938. [47] See Ridpath, supra note 22. [48] See Gaul, supra note 1, at p. 207. [49] Jacob Pramuk, Playoffs Are A Revenue Bonanza for College Football, CNBC (Jan. 1, 2015). https://www.nbcnews.com/business/business-news/playoffs-are-revenue-bonanza-college-football-n277641 [50] Kyle R. Wood, NCAA Student-Athlete Health Care: Antitrust Concerns Regarding the Insurance Coverage Certification Requirement, IND. HEALTH L.R., 562, 601 (2013). [51] See Nate Silver, Expand The College Football Playoff, FIVETHIRTYEIGHT (Jan. 15, 2015). https://fivethirtyeight.com/features/expand-the-college-football-playoff/. [52] Cal. Dental Ass’n v. Fed. Trade Comm’n, 526 U.S. 756, 781 (1999). [53] See Dunnavant, supra note 1, at p. 155. [54] Jordan Burchette, The Worldwide Cheerleader: ESPN and the College Football Playoff, ROLLING STONE (Oct. 28, 2014). https://www.rollingstone.com/culture/culture-sports/the-worldwide-cheerleader-espn-and-the-college-football-playoff-80005/. [55] M. Mark Heekin and Bruce W. Burton, The Deeply Flawed College Football Playoff: A Call for Structural Changes to Protect Against Undue Commercialization, To Ensure Transparency, and to Systemize Democratic Due Process, 40 U. OF DAY. L. REV., 383, 393 (2016). [56] See Ridpath, supra note 22. [57] Scott Harris, Is The College Football Playoff Waiting For A Lawsuit? THE BEAT OF SPORTS. 96.9 The Game. Orlando, FL, (Dec. 4, 2018) https://969thegame.iheart.com/alternate/amp/2018-12-04-is-the-college-football-playoff-waiting-for-a-lawsuit/?__twitter_impression=true. [58] Joy Blanchard, Flag on the Play: A Review of Antitrust Challenges to the NCAA. Could the New College Football Playoff Be Next? 15 VA. SPORTS & ENT. L.J., 33 (2015). [59] Board of Regents, 468 U.S. at 117. [60] See Blanchard, supra note 63, at p. 34. [61] See Miller, supra note 23, at p. 567 [62] Id. at 568. [63] Board of Regents, 468 U.S. at 102. [64] Id. at 120. [65] Id. [66] See Silver, supra note 51. [67] David Hookstead, Poll: Is it Time to Expand the College Football Playoff to Eight Teams? THE DAILY CALLER (Dec. 4, 2018). https://dailycaller.com/2018/12/04/poll-college-football-expansion-eight-teams/. [68] See Silver, supra note 51. [69] Greg Wallace, 7 Reasons College Football Playoff Needs to Expand, BLEACHER REPORT (Jan. 28, 2015). https://bleacherreport.com/articles/2344972-7-reasons-college-football-playoff-needs-to-expand#slide5. [70] Twelve-team College Football Playoff Expansion ‘building support’: Sources, THE ATHLETIC (Apr. 28, 2021) https://theathletic.com/news/twelve-team-college-football-playoff-expansion-building-support-source/sfmXzYHlYGrh. [71] Ralph D. Russo, Clemson blowout draws lowest TV ratings for CFP title game, ASSOCIATED PRESS (Jan. 8, 2019). https://www.apnews.com/540b366d203443d094a9922591a04130. [72] See Ridpath, supra note 22. [73] Steve Berkowitz, Possible CFP expansion could increase revenue to more than $2 billion, USA TODAY (June 11, 2021), https://www.usatoday.com/story/sports/ncaaf/2021/06/11/college-football-playoff-expansion-could-push-revenue-2-billion/7657072002/. [74] Michael Baumann, UCF Didn’t Lose a Game – but the Knights Lost to College Football’s Playoff Cartel, THE RINGER (Dec. 3, 2018). https://www.theringer.com/2018/12/3/18123560/college-football-playoff-central-florida-knights-alabama-clemson-notre-dame-oklahoma. [75] Ivan Maisel, Results are in: Expanded playoff wouldn’t mean more competition, ESPN (Jan. 1, 2019). http://www.espn.com/college-football/story/_/id/25664696/expanding-college-football-playoff-simply-create-more-blowouts. [76] See Miller, supra note 23, at p. 559. [77] Ryan Gillespie, UCF national champs? Florida lawmakers could declare it so, ORLANDO SENTINEL (Jan. 3, 2018). https://www.orlandosentinel.com/politics/os-legislature-ucf-national-champions-20180103-story.html. [78] See Baumann, supra note 74. [79] See Gaul, supra note 1, at p. 209 [80] See Schmit, supra note 31, at p. 110.

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