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12 Questions With Sen. Orrin Hatch

RealClearSports recently interviewed Orrin Hatch, a Republican US Senator from Utah, a position he has held since 1977. Sen. Hatch has long been an outspoken critic of the Bowl Championship Series, and is currently urging the Senate Antitrust Subcommittee to schedule hearings to investigate the antitrust implications of the current system.

RCS: Most college football fans wouldn’t know it, but you may represent the best hope to reform the nearly universally detested BCS. Other than the President, you have been the most prominent and outspoken BCS opponent in Washington. In fact, you’ve previously held hearings about the BCS and you’re on the record calling the BCS “Un-American.”

But, although loathed, the BCS is the status quo, has some powerful support and has proven resilient. Practically speaking, what can Congress do bring about BCS reform?

Sen. Hatch: As far as I’m concerned there are antitrust issues involved here, and I don’t think there’s any doubt that college football fits as a commercial enterprise. These BCS schools – in fact all of the schools of any size – market there teams like they would a commercial product. In the case of BCS schools they receive substantial revenue in return. Some of them outside of BCS do too, but certainly they get an advantage if they play in a BCS conference. Also, it isn’t just the schools and conferences that are involved here. There are the TV networks, the corporate bowl sponsors, and others as well.

Our antitrust laws are designed to prevent people from acting in agreement and coordination to reduce competition. I think that’s precisely what we have going on with the BCS.

I’m a member of the Senate Antitrust Subcommittee, and its Ranking Member. We already have plans to hold another hearing to look into the antitrust implications of the BCS. Hopefully we’ll be having that hearing within the next few weeks. And we’ll look at these issues very soon. Like I say, I think there’s a pretty clear case that the BCS is exclusionary. There’s no question that the way they’ve designed it, has a negative impact on the schools left on the outside. So I think it’s important for us to determine whether or not the system is legal, and personally I don’t think it is.

RCS: A couple of months ago, you did an interview with Dennis Dodd of CBS Sports in which you said “[T]he current BCS agreement expires next year and that there is a proposal on the table to extend it through 2014. The deal is not yet in place and a number of the conferences, particularly the Mountain West, have expressed serious concerns about the proposed extension. Frankly, I think this proposal is the reason for Congress to get involved right now.”

The BCS television and bowl contracts have recently been agreed upon through 2014, including the Rose Bowl contract, which was signed with ESPN over the weekend. Now that these contracts have been agreed to, is there still a significant reason for the Senate to get involved now?

Sen. Hatch: If people conclude that they are violating the antitrust laws that could upset all of their plans, no matter what they’ve entered into, because the BCS is fundamentally unfair. I don’t think there’s any real fan of college football that would dispute that.

When you have a system that’s been criticized and condemned by people ranging from the coaches and university officials to the President of the United States, you have a problem.

My biggest concern with the BCS is that it creates inherent disadvantages for those conferences that don’t receive automatic bids. Nearly half of all the teams in college football are left to share relatively small amounts of BCS revenue, while the teams from the six automatic bid conferences each have a share in a much larger pot, even if they don’t win a single game. Given this level of exclusion and coordination, I think there’s a good chance of success should someone decide to file a lawsuit. If that’s the case, it won’t matter when they sign the television contract.

Now they go final with the contract, as I understand it, on July 9th. That’s why I’m hopeful that the Chairman of the Subcommittee [Senator Herb Kohl] and I can hold a hearing before that date, and hopefully get them to wake up on that.

RCS: You and Democratic Senator Herb Kohl, Chairman of the Senate Judiciary Antitrust Subcommittee, have committed to holding hearings this year – and, in fact now you’ve said hopefully before July 9th. You stated that the purpose of these hearings would be to determine whether the BCS “constitutes a coordinated effort to eliminate competition.”

If it’s determined that it does, how will this affect BCS reform both in the short and the long term? And perhaps more importantly, can BCS reform be made before 2014?

Sen. Hatch: Well, there are also some people who are thinking of bringing litigation against the BCS. That might be the only thing that will make them wise up and start being fairer about it. It’s hard to do.

I am planning, once we’ve had a hearing, on writing a letter to the Department of Justice and the Federal Trade Commission to look into this. That’s typically the process we follow on the Antitrust Subcommittee. I would prefer them to look into it because I think they would conclude that this is not a fair system.

When you look at it, a lot of schools depend on the revenue from their football programs to keep all their athletic programs running, or to pay even for some of their academic programs. So for all those things, on the outside looking in on the BCS, which once again is nearly half of all the teams in Division I, the problems with the system extend well beyond the football field. So, as you can see, this is not some itty-bitty problem, this is a pretty important set of issues we’re raising here. I would hope that, given the size of these disparities, the DoJ and the FTC wouldn’t shy away from these issues.

RCS: You mentioned potential lawsuits, among them is Utah Attorney General Mark Shurtleff’s, who is said on a radio program over the weekend that he is planning to ask the US Department of Justice to join his investigation against the BCS.

What do you think are the chances of Attorney General Shurtleff being successful in having the US Department of Justice pick up the case?

Sen. Hatch: Well, I don’t know if he can get the US Department of Justice to pick up the case, but I would think they would be interested. This looks to me like a fairly good anti-trust case, which ought to be brought up. But, from the beginning, I’ve said that I would prefer to just have the BCS wake up and take notice of all the criticism they’ve received, rather than involving Congress or the courts.

RCS: In Monday morning’s USA Today, there’s a story about how J.C. Watts is representing the BCS as a lobbyist on Capitol Hill. The BCS is paying Watts’ firm about $100,000.

As a lobbyist, a former Congressman, and college football star, what effect, if any, will Congressman Watts have on the Senate hearings?

Sen. Hatch: J.C.’s a great guy. I mean I like him personally, and we’re close friends. He’ll be doing his job,and I don’t have any problems with that; I just think he’s on the wrong side. I can’t say that I wish him well on this particular endeavor. All I can say is he’s a good person. J.C.’s a former college football player, plus wonderful member of Congress when he was here. A good friend of mine. He has the right to represent the BCS.

I think the bigger concern, more so than who is representing who, is ensuring that every school is treated fairly. It’s more than just a question of wanting to see a playoff or playoffs, or wanting to see teams like Utah or BYU get a chance for the National spotlight – though as a fan of college football I do find those prospects exciting. I think it’s obvious that BCS is bad for consumers; it’s bad for the fans of college football; and it’s bad for the schools that are shut out.

Given the amount of money that’s at stake here, I think that’s more than enough to warrant the attention of Congress. Even though nearly everyone disagrees with the current BCS system, as you’ve mentioned, they’re currently working to extend the system for another four years. Given the wide spread criticism from nearly every sector of the country, I personally think that’s outrageous. But that’s where we are.

RCS: This week the BCS commissioners are attending the Collegiate Commissioners Association meeting in Colorado Springs. At the meeting, the Denver Post reported that the Mountain West Conference Commissioner Craig Thompson will propose a BCS restructuring plan, including new conference qualification requirements and a special committee to determine end-of-season rankings.

But according to BCS administrator Bill Hancock, support for Thompson’s plan among BCS Commissioners “has been limited.” If BCS Commissioners are completely dismissive of Thompson’s plan, does it make it more likely that there will be some kind of BCS legislation?

Sen. Hatch: Well, I think the first order of business, before we start working on legislation, is for us is to hold this hearing. We did hold this hearing a while back, but I think we’ve got a lot more information now. We’ll be doing just that in the Antitrust Subcommittee in the next few weeks.

Now, the House Energy and Commerce Committee also held a hearing last month. I think those hearings will hopefully help us get a clearer picture of the BCS problem. That said, I am considering legislation to address the problem. I haven’t introduced it yet, but I hope to be able to work with my colleagues to examine this issue thoroughly to make sure we can come up with an appropriate approach.

Look, I’m not itching to get the Senate involved in the regulation of college football. And, like I said, I would also rather not see the matter addressed in the courts, or by the Justice Department’s Antitrust Division. There are people right now with the power to reform the BCS system, and it’s always been my hope that they’ll do so without government involvement. I think they ought to. What I’d eventually like to see, as the President would like to see, and so many others, the use of a Playoff system. Quite honestly though, anything would be better than what’s in place right now.

RCS: As you mentioned, there were Committee Hearings in the House last month, and at them ACC Commissioner John Swofford, who is this year serving his rotation as BCS Commissioner, adamantly defended the BCS.

But he also said he welcomes Congressional input. Do you take him at his word that the BCS Commissioners really do welcome Congressional input?

Sen. Hatch: Well I hope so. I hope he means what he said. And if he does, he ought to at least pay attention to what we’re doing here.

I don’t relish being the skunk at the picnic here, but on the other hand I do kind of relish it because I think this truly is a prejudicial system.

It’s not fair to about 50% of Division I schools; it’s not fair from a prestige standpoint; it’s not fair from a chance to play for the National Title; and it’s not fair from a monetary standpoint. I mean you can go right down the list. I hope they’ll change their ways at this next meeting, but the July 9th contract date doesn’t seem to me to be very helpful.

These are not inconsiderate questions that we’ve raised. They’re very important questions. As we in Utah know, the BCS system makes it virtually impossible for a team from one of the outside conferences to make into the so-called National Championship game.

RCS: So should college football and ESPN delay their July 9th contract date until the Senate has their hearings?

Sen. Hatch: Well no, I can't speak for them. All I can say is I would hope the BCS Commissioners and the people who are doing this to all the teams would consider some of these points that we're raising here. They're legitimate points.

All of us have been raised in America seeing the elite have advantages that others don't have. We're kind of used to it. But when it comes to something like collegiate football, and you clearly have about 50% of these teams not treated fairly; that's taking elitism too far.

I know what the break down is. One team has a vote. Just one team in this country: Notre Dame. That's a great team, a great school, and has seriously had great teams all these years. But that's not right. I don't care what anybody says. If they're serious about a compromise, then executing this contract at such an early date is not very helpful. It doesn't look to me like they're trying to compromise at all.

You know this isn't just Utah that's being treated unfairly. You can go to Boise State and ask them -- they were undefeated at the end of the regular season last year. In fact, both Boise State and Texas Christian finished higher than two teams with automatic bids last season. Yet two teams with multiple losses were able to qualify for a lucrative BCS game, even though they were ranked lower in the BCS's own poll. In addition to Utah last year, other teams in recent years, including Boise State and Hawaii, have gone undefeated, but were left out of the national title picture.

We all know that college sports in general are big on tradition. There are schools that have winning traditions, and there are teams that are always going to be favored in the media and even among fans, like Notre Dame. We've all been raised with that, and I think most people accept that.

But there's another tradition: The Cinderella story. The team that defies the odds, and despite its humble location and unknown roster, plays its way into National prominence. Now we see that in NCAA Basketball Tournament all the time. The BCS, more or less, makes it impossible for these Cinderella teams to contend for the National Championship. I think that takes a real good aspect of the game away. I'm serious. I think this is important.

RCS: Let’s go back to Commissioner Swofford’s House testimony. About it, Andy Staples of Sports Illustrated wrote, “Swofford couldn’t decide whether the BCS exists for financial or competitive reasons.”

Is defending the BCS with financial justifications as well as saying it preserves competition hypocritical?

Sen. Hatch: Well how else could he handle it? Let’s be honest. Financially, the teams that are in the BCS come up like gangbusters and the rest of them are not treated fairly. He can’t very well say that we treat one half better than we treat the other half. He’s not going to say that at an open hearing, but he should have. He should have said that.

RCS: Your colleague, Senator Chuck Grassley of Iowa has made a point in the past that if these schools and sports programs are run like businesses then they should be treated like businesses and not non-profits. Thereby they’d lose their tax-exempt status.

Is threatening to take away tax-exempt status an option for BCS reform legislation?

Sen. Hatch: Not as far as I’m concerned. I don’t want to do that. But, in the end, that is one option at Congress’s disposal. I have to admit though that I’m against that. I think most all the schools are basically non-profit. Whether they’re state run or whatever. I think it’s important that we have a vibrant set of athletic opportunities in this country for the colleges and universities, and I want to keep it that way.

But we’re not talking about taxes in these hearings. The question is antitrust law. There is an ending to this and it is an antitrust law. I don’t want to make it tougher on the schools or be mean spirited about this. That’s not my goal. My goal is to be fair, and to see them be fair. Right now it’s a very unfair process and an unfair system. I don’t see how they can, with a straight face, not admit it.

RCS: What are the options for BCS reform legislation?

Sen. Hatch: Well I can’t really get into that here. We could spend hours on that. The fact of the matter is, there are still some opportunities for the BCS to fix itself. But they ought to be fair and they shouldn’t be giving any side an advantage over the others.

Personally, I’d like to see a playoff system where the truly best team can be the National Champion and teams from various conferences have an equal chance to fight for that if they can. But, in the end, I want BCS to come up with a solution. If not, then we do need to talk to the Department of Justice and the Federal Trade Commission. I personally believe that they’ve got to start looking at this and not just blatantly keep that elitism going that is detrimental to all these other schools. It’s not right. If none of these approaches work, then we’ll have to consider introducing legislation.

RCS: Alright Senator, last question. Sam Bradford, Tim Tebow, and Colt McCoy are all returning to school this year. Which one of them will win the Heisman – or do you have a dark horse candidate in mind?

Sen. Hatch: Well, let me just say this: I think you better watch Max Hall at BYU.

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