Washington (CNSNews.com) - The manner in which college football’s Bowl Championship Series (BCS) is carried out was the subject of a Senate Judiciary Committee subcommittee hearing Tuesday.
 
What was in dispute, however, was why Congress appeared to be meddling with the method college football uses to choose a national champion.
 
Sen. Orrin Hatch (R-Utah), who chaired the hearing of the antitrust, competition policy and consumer rights subcommittee, said the BCS bowl “regime” is best described as a violation of the Sherman Anti-Trust Act--a law aimed at protecting against monopolies and business arrangements that stifle competition.
 
“The law requires that all business enterprises meet certain standards with regard to pro- and anti-competitive behavior,” Hatch said. “Our focus should therefore be on comparing the current (BCS) system with the standards required by our nation's anti-trust laws.”
 
University of Utah President Michael Young, one of the witnesses, agreed with the Utah senator.
 
“I think there is serious argument with the anti-trust laws,” Young told CNSNews.com. “I also think (BCS gives) very considerable financial benefits to all of the universities in the country and that creates an obligation that they should live up to,” he added.
 
Hatch was explicit as to what sections of the anti-trust laws the BCS defies. 
 
“Section 1 of the Sherman anti-trust act prohibits contracts, combinations, or (conspiracies) that limit competition,” he said. “I don’t believe that a tighter description of the BCS exists.”
 
Hatch provided a justification for why the BCS violates the anti-trust act, saying that the BCS controls with whom its members compete.
 
“The system itself is an agreement between the preferred conferences and the major bowl games as to how they will compete with one another, and more apparently how against the non-preferred conferences,” said Hatch.
 
“More still, under the current BCS regime, each of the six privileged conferences is guaranteed to receive a large share of the BCS revenue to distribute among their member schools, he added.

“The remaining five conferences, which include nearly half of all the teams in (the Naitonal Collegiate Athletic Association) Division I, all share a much smaller share of the BCS revenue.”
 
He pointed out that the BCS also violates Section 2 of the anti-trust law, which deals with prohibiting monopoly power, which means using a superior product or business to hinder growth and development.
 
“I think there is a sharp argument that the BCS may very well be in violation of that provision (Sec. 2) as well,” said Sen. Hatch.
 
“Given the drastic differences between the revenues and the profits of the BCS bowl, when compared to other bowl games played throughout the mid-December and early January, I think it’s safe to conclude that BCS bowls constitute a market that is on their own,” said Sen. Hatch. 
 
In addition, the BCS enjoys a monopoly because it has an “edge restricting the ability of teams from non-privilege conferences to participate,” he added.
 
Nevertheless, not everyone at the hearing shared the sentiment of the two gentlemen who represented Utah. 

But William L. Monts, an attorney with Hogan and Hartson, LLP in Washington D.C and expert with anti-trust law issues, disputed Young's and Sen. Hatch's argument that BCS violates the Sherman Act. 

“As the Supreme Court has stated, the purpose of the anti-trust laws is to protect competition, not competitors,” Monts written statement reveals.
 
“In other works, the Sherman Act does not exist to shelter some producers of goods and services from competition from other producers of goods and services or to equalize marketplace outcomes or redistribute income,” he added.
 
According to Monts, “the Sherman Act guards the competitive process so that consumers benefit from competition.”
 
Besides Monts and Young, the other witnesses were Barry Brett, a lawyer with Troutman Sanders, and Harvey Perlman, the chancellor of the University of Nebraska-Lincoln.
 
Sanders was against the BCS and Perlman was in support of it. Out of 10 committee members, only Hatch, who proposed the hearing, was present throughout.
 
The subcommittee chairman, Sen.  Herb Kohl (D-Wis.) was there to start the hearing and provide his opening remarks.
 
“The Bowl Championship Series was created more than a decade ago in an effort to find a fair and equitable way to select universities to participate in the lucrative end of bowl games,” Kohl said.
 
“In order to have an objective means of selecting teams to participate in a national championship game,” he added. “While many believe that the system is working well, critics of the BCS argue that it’s an unfair disadvantage to those universities that are not align with the large athletic conferences.”
 
In addition, critics of the BCS argue that the system does not award athleticism and performance.
 
Young told CNSNews.com that the reason that the University of Utah is not playing national champion Florida this fall is because Florida will not schedule them.
 
“They won’t schedule us,” he said. “Part of the problem is these teams, in order to be fully eligible themselves, can’t schedule up so they have to play their conference games and they may want to win 6 games so they can get a victory so they schedule down,” he told CNSNews.com. 
 
“The problem with (University of) Utah is we beat them, so we would love to play them,” he added.
 
In November 2008, then- Sen. Obama told CBS’s “60 Minutes” that he favors a college playoff system over the bowl series one.
 
“I think any sensible person would say that if you’ve got a bunch of teams who play throughout the season and many of them have one loss or two losses (and) and there’s no clear decisive winner, that we should be creating a winner.”
 
The BCS consists of choosing bowl participants – and a national collegiate champion -- based on polls and computer rankings. Critics of the system, who favor a playoff system, say that the latter does a better job in rewarding athleticism.
 
Under the BCS system, each of the powerhouse conferences -- including the Atlantic Coast Conference (ACC), Big East, Big 12, Big 10, Pacific 10, and the Southeastern Conference – are guaranteed at least one berth in one of the BCS bowls. The conferences receive $18 million each, plus $45 million extra for individual teams that appear in a bowl game.
 
The assured spot and monetary award comes at the expense of the smaller conferences, including Conference USA, Mid-American, Mountain West (of which Utah is a member), Sun Belt and Western Athletic Conferences.
 
For smaller conferences, only one team is guaranteed a berth in BCS bowl games -- and the conference and the team get $9.5 million combined.