Note To Orrin Hatch — 13-0 May Be A Travesty, But It’s Not Congress’ Business

Orrin Hatch is undoubtedly merely responding to his constituents’ demands with this nonsense. The Utah Utes finished 13-0 last season, with notable wins over Michigan, Oregon State, ranked teams TCU and BYU, and a BCS bowl defeat of Alabama. It’s a pretty impressive resume. They were the only undefeated team in Div I-A (FBS). But they’re not the Champion. Florida, who finished 13-1 (with their sole loss being to Mississippi) is the Champion.

I understand the complaint. If a mid-major team like Utah can have the season they’ve had, beat the teams they beat, and still fall behind a one-loss school from a “major” conference, then no mid-major will ever be crowned Champion. Granted, Florida may have been the best team in college football (as the Patriots were the best team in the NFL in ’07-8 despite not winning Super Bowl XLII), but I don’t think the system for determining a Champion is very fair.

It’s not a system I like. It’s also not a system that Orrin Hatch likes, but he’s sticking the full power of the federal government into the debate:

Sen. Orrin Hatch, R-Utah, may be a skinny guy with a high voice. But he’s angrily setting out to tackle the biggest powers in college football, vowing to pound them until they reform the Bowl Championship Series.

He called them out Wednesday, as he and Sen. Herb Kohl, D-Wisc. — respectively the top Republican and Democrat on a Judiciary subcommittee on antitrust — released a list of topics that panel plans to consider this year.

A bit buried on Page 4 of an eight-page list, amid somewhat sleep-inducing reading on oil and railroad antitrust, is a nifty paragraph about the BCS.

“The BCS system leaves nearly half of all the teams in college football at a competitive disadvantage when it comes to qualifying for the millions of dollars paid out every year,” their joint statement says.

Then it drops its first unexpected bomb: “The subcommittee will hold hearings to investigate these issues.”

That is followed by a second: “Sen. Hatch will introduce legislation to rectify this situation.”

I realize that Congress believes it has purview over everything that occurs within our borders, but if their “fixes” for other problems are anywhere near as effective as this one will be, I’m not sure anyone will want to watch college football afterwards. I really wish they’d waste their time ruining something else, because I quite enjoy spending fall Saturdays watching one of the few worthwhile sports left.

  • Chris Byrne

    Not that I agree with the idea, but at least on this one there is a solid commerce clause argument to be made.

    There is clearly interstate commerce going on with respect to college football… on the scale of a couple billion dollars when taken as a whole.

    Clearly the states cannot adequately act as a neutral arbiter in such disputes. This is one of the relatively few cases when, if we are going to address this either legislatively or through the courts, federal is the way to go.

    Additionally, most of the colleges and universities participating in the NCAA receive significant state and federal monies; further inviting congressional regulatory purview.

    Still a massive overreach into areas that should be left well enough alone; but at least he’s doing it by the rules.

  • Brad Warbiany


    With the traditional commerce clause interpretations as well as the traditional “necessary and proper” interpretation, I don’t agree. With modern interpretations, this is par for the course — but I find that interpretation sorely lacking and allowing of over-expansive government powers. The traditional commerce clause interpretation is that it is improper for states to arbitrarily restrict commerce between that produced within their borders and that produced without — not really at issue here.

    Their more direct route is through anti-trust rules, where this does appear to be a monopoly — and in typical fashion, monopolies can only truly exist with state support, which is the case here since [as you point out] mainstream college football is driven primarily by state-supported universities.

    If he’s going to attack the problem, doing so through FTC anti-trust actions is the most legitimate way to do so. Given that these are government-enforced monopolies, I can even grant that if there is a legitimate place for anti-trust action (full disclosure, I didn’t think it was warranted in the Microsoft case), this might be it. But I see no reason that any actions they take will really make college football better. There are problems with all systems (due to trying to declare a champion among 117(?) teams in such a physically-demanding sport), and I think having Congress select the method for selecting a champion is as arbitrary and fraught with problems as letting the NCAA/BCS system do so.

  • Stephen Gordon

    As a diehard Alabama football fan, this REALLY pisses me off! Do I think the BCS system needs to be improved upon? Hell, yes! Should Congress be involved? Hell, no!

    Hatch isn’t the only Republican hoping to intervene in a situation. As I wrote in December, “That Texas Republicans Joe Barton and Michael McCaul are pushing this bill is probably causing both Ronald Reagan and Bear Bryant to roll over in their graves.”

  • Chris Byrne


    That IS an interesting take; but I thought the NBA, NFL, NHL, MLB, and NCAA were actually given specific protection under law from anti-trust action?

  • Chris Byrne

    Oh and in case I was unclear, I don’t think this is necessary or proper; only that one could certainly make a good argument that the commerce clause applied. BOTH must be true for legislation to be justified.

    Lately however, it seems that congress is absolutely disregarding all rules or restrictions on their whims, and that was what I was saying was good. Hatch was deciding to play by the rules.

  • Brad Warbiany


    I was understanding that only MLB is explicitly given anti-trust protection… But I could be wrong.

    But still, I’d state that the traditional commerce clause interpretation prevents individual states from erecting barriers to commerce between each other… There is no explicit state action here regulating commerce between states, which is why I’d say that the commerce clause shouldn’t apply.

    Of course, the commerce clause isn’t what it used to be. It’s grown to say “any activity (whether commerce or not) that might could someday sniff a gnat who could reasonably be expected to get on a truck that may potentially come within 150 miles of a state border”… Which means they’ll regulate whatever the heck they want.

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