Attorney General Mark Shurtleff says he expects to sue the Bowl Championship Series by next month and that the snub of Boise State in this season's bowl games gives additional fodder to the impending lawsuit.
"I think we got some really good, new facts this season to support our case," Shurtleff told The Tribune in a recent interview. "The big example again is Boise State. They had one loss and finished in the Top 10, and yet they don't get a [BCS] bowl game."
Instead of Boise State, the Discover Orange Bowl selected West Virginia and Clemson, each with three losses. The Allstate Sugar Bowl took Michigan and Virginia Tech, both of which were ranked below Boise State.
The Broncos were relegated to the Maaco Bowl, where they dominated Arizona State and earned $1.1 million. If they had made the BCS, Boise State's conference would have shared $26.4 million.
But Bill Hancock, executive director of the Bowl Championship Series, defends the system and says it has opened up access for small-conference teams to the premier bowl games.
The National Championship game is designed to pair the top two teams in the country. After that, the bowls can pick the teams they desire.
"The Sugar Bowl is an independent organization. It owns the game, presents the game, and arranges for the opportunities for student-athletes, coaches, and fans to enjoy as part of the bowl experience," he said in an email. "It makes no sense that, having created the event, the Sugar Bowl should not be able to select those teams that it wishes to invite to its game."
Under the BCS structure, six conferences the traditional football powerhouses have automatic qualifying spots. Hancock said before the BCS, teams from outside those top conferences have cracked into one of the elite bowl games only five times in 54 years.
Since the BCS was created, seven teams have played in those games in eight years.
"Think about that," he said. "Five times in 54 years versus seven times in eight years."
That argument may pose the biggest challenge to any lawsuit that Shurtleff ends up filing, according to Michael McCann, director of the Sports Law Institute at the Vermont Law School.
"Before there was a BCS, there was no playoff system, so it's not clear there would be one after," he said. "That helps it in court, because they can argue that, on balance, it promotes competition because it provides a system that didn't exist before."
The court may be reluctant to determine there is a legal right to a college football playoff and decide that it is unwilling or unable to undo any harm done by the system.
"There are clearly overtly anti-competitive qualities to the BCS," McCann said. "But I think, on balance, at this point going into the litigation, I think the BCS would be favored."
For nearly three years ever since an undefeated University of Utah was denied a shot at the national title, trouncing Alabama in the Sugar Bowl instead Shurtleff has been threatening to sue the BCS for colluding to deprive schools from smaller conferences a shot at elite bowl games. (Utah joined the Pac-12 last year, which is a BCS automatic-qualifying conference.)
In August, the state issued a "Request For Information," soliciting input and statements of interest from law firms that might be interested in representing the state in the litigation. Twenty-four responded to the request, including some of the most prestigious law firms in the country.
Shurtleff said that he had hoped to seek bids from law firms by the end of the year, but now hopes to start that process this month, have a law firm selected by early February and have the lawsuit filed in federal court by the end of the month.
The selection process will be handled by state contracting officers rather than Shurtleff's office to avoid any potential appearance of conflicts of interest in selecting the outside firm.
The time frame for the litigation could change, Shurtleff said, if the BCS makes "major" changes to its selection criteria when its board meets later this month.
Hancock said the commissioners are scheduled to meet in January, but likely won't make any decisions until after the series of meetings concludes later in the year. He said it wouldn't be appropriate to speculate on what proposals might be made or adopted.
Shurtleff said the state is looking for a firm that will be willing to handle the case entirely or partly on a contingency basis meaning the firm would keep a share of whatever damages are recovered, which could be considerable.
In antitrust suits, courts can award "treble damages," meaning three times the actual compensation due to the damaged parties, which could be tens of millions of dollars.
Shurtleff has pledged to put up $1 million from the proceeds of previous antitrust cases, which have been set aside for future such cases.
"That's good for a start, but we're committed not to go to the Legislature to fund it, not use taxpayer money," he said.
He also hopes attorneys general from other states will join in, including, ideally, the U.S. Department of Justice. He has had numerous conversations with attorneys from the Justice Department over the past few years.
In 2008, then-President-elect Barack Obama said he would try to "nudge" the BCS toward a playoff system.
McCann said he expects there would be a lot of interest from firms in taking the case. "Even though the chance of winning the litigation is less than 50 percent, there's still a chance of winning, plus there's a chance of a favorable settlement," he said. Most antitrust cases are settled before they go to trial. And the firm would get "a ton" of publicity for handling the case.
Fixing college bowl games
In a recent law review article, Michael McCann recommended several potential changes that could strengthen the Bowl Championship Series and alleviate some of the anti-competitive stumbling blocks.
Among his recommended changes:
• Using economic incentives to coax the BCS toward a playoff. "March Madness" rakes in many times in television revenue what the college football bowl games do and has considerably better ratings. A playoff could increase television revenue and merchandise sales.
• Short of a playoff, the BCS could do away with automatic qualifying conferences and treat all conferences on equal footing. That would require expanding the number of BCS bowl games so that each conference is guaranteed a berth in one of the top-tier bowl games.
• A hybrid model where conference champions and eight wild-card teams have a playoff. This would likely require shortening the regular season.