Utah attorney general says he will file antitrust lawsuit against BCS

Utah's attorney general says he has decided to file suit against college football's Bowl Championship Series, claiming it's "an illegal monopoly" that violates antitrust regulations.

Republican Mark Shurtleff, who has been investigating the BCS since undefeated Utah was shut out the national championship picture three seasons ago, told USA TODAY he'll pursue the action in federal court within the next couple of months and likely will be joined by attorneys general in at least two other states.

"I think more will get involved," Shurtleff says, "as they have a chance to look at what we're talking about — that this isn't about bragging rights, it isn't some kind of frivolous deal, there are serious antitrust violations that are harming taxpayer-funded institutions to the tune of hundreds of millions of dollars. And the right thing to do, regardless of whether teams in your state benefit, is to go after the antitrust violations ... all the way from the Sherman Act through price fixing."

The suit could seek hundreds of millions of dollars in damages, which would be trebled if antitrust violations are found.

The legal threat is among a number of challenges buffeting the BCS as conference commissioners and athletics directors who manage the 13-year-old system prepare to meet next week in New Orleans.

A special panel is considering the future of one of its four top-tier bowls, the Fiesta, in the wake of a scathing report that detailed grossly excessive spending and illegally orchestrated political contributions. A Washington, D.C.-based, anti-BCS political action committee has filed an Internal Revenue Service complaint against the Fiesta and two other affiliated bowls, the Sugar and Orange, and the U.S. Justice Department said last year that it was weighing a request by Sen. Orrin Hatch (R-Utah) to look into antitrust questions.

College football's six marquee conferences — the Atlantic Coast, Big East, Big Ten, Big 12, Pacific-12 and Southeastern — dominate both control of the BCS and representation in its games. Only seven of 114 berths have gone to teams from middle- and lower-echelon leagues in 13 years, and none of those teams finished high enough in the BCS' mathematical rankings to qualify for its No. 1-vs. 2 national championship game.

Critics argue that inequities in revenue-sharing and television exposure keep the non-preferred conferences at a competitive disadvantage.

Shurtleff, who is midway through his third term as Utah attorney general, says his suit will claim restraint of trade and "ask the judge to order some way to fix it. It's not my call on how to fix it, but I think clearly (it would be) to go to a playoff and eliminate the BCS."

BCS Executive Director Bill Hancock wouldn't comment specifically on the prospective lawsuit, but says he and other officials are confident the system complies with the law. "I'm not an attorney," he says, "but I know antitrust laws challenge entities that limit access and the BCS provides access in spades."

In part because of loosened guidelines, mid-level Utah, Boise State, Hawaii and Boise State have cracked the BCS lineup seven times in the past seven years.

"The BCS also doesn't limit supply," Hancock argues. "There's more (bowl) games than ever before. It's created a national championship game that didn't exist before. So in terms of access for the consumer and supply for the consumer, and just access in general, contrary to limiting that, the BCS has enhanced it."

Shurtleff has continued his fight even though Utah is moving next season from the Mountain West Conference to the Pacific 12, whose champion is guaranteed a place in the BCS.

He met with Justice Department officials in February, and says he preferred that they take the lead in the legal action. "They kind of suggested that, if the states started, they might follow," he says. "There's no guarantee of that.

"It's a hard one because of the fact that so many big schools and so many states benefit from the current setup. But I finally made a decision. .. to go ahead and start the lawsuit.

"I don't want to wait any longer. I think it's time to move forward. ... If there are clear violations of the law, I think it's my responsibility to do something about it."

A spokesman for Hatch, Mark Eddington, says the senator has heard nothing from the Justice Department since a January 2010 letter saying it was weighing a BCS investigation.

"If it was an open-and-shut, clear-cut violation, then you might think DOJ would be more interested," says Stephen Ross, a Penn State law professor and antitrust expert who once worked for the Federal Trade Commission and the Justice Department. "Beyond that, I think it's hard to read the tea leaves."

Proving unfair business practices by the BCS won't be enough, he says. Shurtleff will have to show consumer harm.

"It is possible that the Justice Department's failure to sue simply reflects the fact they believe that, politically, there's sufficient incentive for state attorneys generals to sue and they don't have to do the work and their resources can be better used elsewhere. It is also possible that, on the merits, they think they don't have a good case," Ross says.

"It's also possible they think it's a close case on the merits and ... it's primarily designed to benefit college football fans of non-BCS conference schools and that it's hard to argue that is something the federal government ought to be spending its time and resources on."

Said Justice spokeswoman Gina Talamona, "We continue to receive information and will determine whether an investigation is warranted."

Contributing: Kevin Johnson