Sorry, Utah: BCS doesn't break anti-trust laws
I've been on the show with Kent and Mick a few times, and Kent said he'd be available to chat if I needed a little light on the anti-trust elements of the whole BCS case.
We talked Wednesday, and it was very educational. First, Meyers' credentials. He tried his first anti-trust case in 1972 and has done virtually nothing else since in the field of law. "It's kind of where I live," Meyers said. He teaches anti-trust law for all three of the state's law schools (OU, OCU, Tulsa U.) Meyers worked the anti-trust aspects of the OU-Georgia lawsuit against the NCAA in the early 1980s, which opened the doors for schools to control their own television destiny.
Meyers said he has read the transcripts from the Senate hearings last week, which included attorneys from both sides, Nebraska chancellor Harvey Perlman for the BCS and Utah president Michael Young for the Mountain West, which is asking for the BCS to turn into a full-fledged playoff.
Meyers wants to make it clear he has no dog in the fight. "I don't care whether we have a playoff or not," Meyers said. He is a college football fan but not hard-core. Meyers, for instance, admits to not knowing such details as how many automatic-qualifying conferences are in the BCS ("five or six," he said). His contribution to this discussion is strictly related to the anti-trust laws, which is why the Senate convened. Utah Sen. Orrin Hatch claimed anti-trust laws are being broken by the BCS, when the mid-majors are given secondary status in the structure that determines major bowl assignments in college football.
OK. So what does Meyers say? The BCS does not violate anti-trust laws. Doesn't even come close.
Meyers gave me a quick lesson on anti-trust law, which admittedly is elementary, considering what he tried to teach me in 15 minutes he teaches students over a full semester. But it comes down to this simple concept: anti-trust laws protect the consumer, not the competitor.
Did you grasp that? I didn't know it until I talked to Meyers. I figured Holiday Inn could sue Marriott for anti-trust violations, if Marriott practices were harming Holiday Inn. But no.
Only if tourists and businesspeople and travelers were harmed by Marriott practices.
So the BCS is in violation of anti-trust laws NOT if the University of Utah or the Mountain West feels slighted. It is in violation of anti-trust laws if college football fans in general are being economically injured.
We know the answer to that. In college football, attendance has gone up. Stadium expansion has gone up. The number of games has gone up. Advertising revenue has gone up. Cost per spot of the advertising revenue has gone DOWN, which is another good thing for consumers. The number of bowl games has gone up.
Where is the economic injury to the consumer? It does not exist. Anti-trust laws have not been violated. "The guy representing Utah does not know what he's talking about," Meyers said. "There's nothing wrong with a group of conferences or teams getting together where agreement is needed to have the product."
Again, Meyers reiterates the anti-trust bedrock: "Anti-trust laws protect economic competition but do not protect competitors." He offers an example. He and I both offer to sell the same product to The Oklahoma Publishing Company. OPUBCO decides to buy my product and not his. I've won, he's lost. "There's always going to winners and losers," Meyers said. "What we've done is carry out the competitive system as it's supposed to work."
The key on the BCS, Meyers said, is to look at the BCS and see if it's more pro-economic competitive, not withstanding individual competitors. "If this case got filed, (the question would be) has the BCS had more pro-competitive benefits than anti-competitive benefits ... How has the BCS affected the product of college football and how has the BCS affected the output of college football?"
Meyers said he sees no anti-competition elements to the BCS. Some say, for instance, that Utah would have made more money without BCS restrictions. "How do we know that?" Meyers asked. In truth, the "better-off" argument — that the mid-majors are much better off with the BCS than before it — which so angers fans is absolutely relevant in anti-trust discussions.
Meyers offers another example. Say Oklahoma City wants a National Hockey League franchise. It goes to the NHL and asks to be admitted. Does the league have to admit OKC? "Hell no," Meyers said. "The NHL has the right to add who it wants to."
Meyers said the fact that the mid-majors are in the NCAA's Bowl Subdivision along with the power conferences is irrelevant. The BCS is not an NCAA venture.
Meyers calls anti-trust laws the "Mills Lane" of the marketplace. Lane refereed the Mike Tyson-Evander Holyfield fight in which Tyson bit Holyfield's ear. A referee steps in when there's cheating going on, as Lane did to eject Tyson. Anti-trust laws stand on the sidelines and don't enter the fray, Meyers said, until there's cheating going on that harms the American consumer.
"This is a far cry from Tyson biting off Holyfield's ear," Meyers said. "They're putting out a product the consumer clearly loves."
Bottom line: anti-trust laws protect Joe Six-Pack, not the University of Utah.
The Mountain West and the Utes and Orrin Hatch might have an argument and might have a case and might have an army of vocal college football fans cheering them on. They do not have anti-trust laws on their side.