(01-05-2018 01:54 PM)Attackcoog Wrote: (01-05-2018 12:49 PM)quo vadis Wrote: (01-05-2018 12:01 PM)Attackcoog Wrote: (01-05-2018 11:23 AM)quo vadis Wrote: (01-04-2018 10:00 PM)Fighting Muskie Wrote: I'm not sure that a breakaway Power 4 or 5 necessarily constitutes an antitrust issue. The universities are allowed to freely associate with whichever institutions they'd like. If they want their own playoff structure that's their right. It sucks for the UConn's, UCF's, and Houston's of the world but that's the reality.
Exactly. "Restraint of trade" means trying to *stop* entity X that is currently a sub-set of entity B from leaving. That's what the NCAA tried to do in 1984 - prevent a subset of its members, the CFA, from negotiating its own TV deal and threatening them with a boycott if they did.
That's the opposite of what a P5 breakaway would be, they wouldn't be trying to keep the G5 in the fold so no restraint of trade.
Likewise, once the CFP contract is up, if the G5 decided to break away and have their own playoffs, that would not be antitrust, rather it would be antitrust if the P5 tried to keep them from doing so.
Now this is where you have a problem with your argument you made in several posts---because the NCAA argued in 1984 that their group TV deal wasnt restraint of trade because Oklahoma could keep their rights and join any number of other college football organizations (such as the NAIA) if they didn't like the NCAA deal. The NCAA wasn't "forcing" them to stay. You're making essentially the same argument---saying the G5 could start their own playoff or league if they dont like the way the current agreement is being implemented. However, what you seem to be ignoring is that the Supreme Court found that the NCAA was so dominant in that space, that there was no real reasonable alternative to the NCAA for Oklahoma---therefore the NCAA was being anti-competetive. Id argue that the Supreme Court would likely find that the P5 so dominates the top level of college football that the same could be said of them. Any league or playoff that didnt include the P5 would not likely be a reasonably similar alternative. Keep in mind--the G5 isnt asking for more money. They are simply asking to be treated fairly in an existing agreement. In other words, I think your unlikely to find that the courts will say its ok for the P5 to treat the G5 unfairly and unequitably in regards to competition for a championship in intercollegient football simply because of their more powerful market position. That would be anti-competetive.
The key difference IMO is that the NCAA didn't just say that Oklahoma was free to leave the NCAA, they also instituted a ban on NCAA teams competing against Oklahoma. That's where the restraint came in.
Similarly, if the G5 broke away from the P5 (or vice versa), and in retaliation the group that didn't want a split told its members that you can't schedule games against G5/P5, that would be a big restraint issue.
The notion that the P5 is 'so dominant' also doesn't seem to make sense to me, simply because there are plenty of college football programs - in FCS, Division II, and Division III, that aren't affiliated with the P5 and yet they carry on with their football programs anyway.
In effect, G5 would be making an argument that somehow the law says they must be allowed to compete at a certain level of football, make a certain amount of money, play against Alabama for a championship, etc. And i don't think any court is likely to agree with that. It's more a claim of entitlement than anything else.
Same exact argument the NCAA made and lost. But lets be honest, everyone can see through that. When people discuss college football--they are not talking about FCS, D2, and D3. Those completely different worlds and are not equally viable options to the existing FBS world. Essentially, the P5 are using thier market position to block the G5 from access to the CFP. Thats really not going to be that hard to prove--especially when commissioners are making public statements like Bowlsby did this week. Just another reason I think the 8-team format with P5 champs being AQ with a slot reserved for the top G5 champ is inevitable. The current position is getting harder and harder to defend. Now its not just leagal grounds---there is a public backplash where more and more view the system as unfair and unjust. That tends to be a tipping point for change.
The NCAA lost because of it (a) fixed prices, and (b) enforced the price-fixing with a boycott of recalcitrant members. Nothing about the P5 leaving the G5 would involve either of those things. The P5 would not be forcing the G5 to accept a contract negotiated by the P5 and if it was smart, it would not try to preclude P5 teams from playing willing G5 teams. But a split is easily accomplishable without doing either of those things.
Basically, the G5 argument would be similar to what UConn argued in 2003 when it tried to sue Miami for leaving the Big East, "hey, we invested a bunch of money in a stadium because we thought Miami would be playing here, so they shouldn't be allowed to leave!" It's actually an attempt to restrain trade, force someone to do business with you.
Now you raise an interesting point about "blocking access to the CFP". That sounds like a lawsuit that would be filed now, and it would be a breach of contract claim, that the P5 schools are violating the terms of the agreement so as to block G5 teams from the playoffs.
That's going to be really hard to prove. First, the committee members are chosen by the Management Committee of the CFP, which is the 10 conference commissioners plus Notre Dame. So it's hard for the G5 to argue that the members are selected without their fair input and according to the procedure agreed upon.
Second, unless some kind of memo is found whereby it is clear that the P5 conferences are making payments to the committee members to get them to exclude G5 candidates in their ranking deliberations, it's going to be hard to argue that the committee members are using anything but their good faith conscience to evaluate teams.
As for pubic backlash, that IMO has never worked to change the system. The only thing that has worked was congressional pressure, namely in the form of Orin Hatch, who was responding not to a national sense of outrage but rather the politics of his own state of Utah. That worked because at root, it's not the courts but congress that controls this issue. In their 1984 decision, the court didn't rely on constitutional principles, they interpreted an act of congress, the sherman anti-trust act. So Congress could make what the CFP is doing illegal by simply amending the Sherman act to make it so. Congress often does this - if the supreme court interprets a law (a law passed by congress, not a constitutional provision - congress can on its own change the former but not the latter) in a way that congress disagrees with, congress will pass a new law clarifying for the courts that it really did intend a different outcome. That's the danger that the BCS responded to and it led to the changes that brought about more inclusion into the BCS from 2005 onwards and also helped move the conferences to change the BCS to the CFP.
Congress definitely has the power to change the various anti-trust acts to make what the CFP is doing illegal, that's the danger the CFP will respond to.