The College Football Act of 2008: Congressional Playoff Legislation
For those of you who are ready to stop daydreaming about playoffs and designing your own fantasy playoff systems, here is your opportunity to actually do something about it.
"The College Football Playoff Act of 2008.
If passed, this bill would "prohibit, as an unfair and deceptive act or practice, the promotion, marketing, and advertising of any post-season NCAA Division I football game as a national championship game unless such game is the culmination of a fair and equitable playoff system."
If passed, this bill would apply to any game that occurs after January 31, 2011. It would be enforceable by the Federal Trade Commission."
Congress, under the Constitutional authority of the Commerce clause, has jurisdiction over NCAA athletics, so they should be able to legally enforce a playoff system. This bill has been introduced in the House, so pressure your local represantatives to support it.
January 9th, 2009 at 1:44 PM ^
Wow.
January 9th, 2009 at 1:50 PM ^
that bill was from the 2007-08 Congress and is no longer active. Nice idea but it'll have to be re-introduced in the House in the 2009-2010 Congress.
January 9th, 2009 at 1:55 PM ^
On December 10 (2008), Rep. Joe Barton, R-Texas, took the next step, introducing the College Football Playoff Act of 2008.
January 9th, 2009 at 2:10 PM ^
Even if it was introduced in December, there's a new Congress as of this week. Of course, if anyone was serious about it, the bill can be re-introduced post-haste. I like others would prefer Congress deal with issues of greater import -- say the economy and the wars in Iraq and Afghanistan.
January 9th, 2009 at 2:24 PM ^
I don't think he expected it to pass in a couple of weeks anyway.
January 9th, 2009 at 1:54 PM ^
I agree that Congress has jurisdiction here as much of college football can be classified as interstate commerce. However, the enforcement will be tricky. Say the NCAA doesn't comply, who do they arrest?
Also, the verbiage may need changing, since it is quite vague. The current system could be classified as a fair and equitable playoff system to some. Also, many of the other proposed playoff plans could arguably fall outside of "fair and equitable."
January 9th, 2009 at 2:01 PM ^
There is no need for criminal enforcement. The threat of withholding federal funds is enough for to scare any university or conference into compliance. The details can be worked out in later drafts, of course we wouldn't want it to be void for vagueness.
January 9th, 2009 at 2:06 PM ^
That's basically impossible. The nondelegation doctrine is dead and enforcement will be put on an agency. All they need is an intelligible principle and "fair and equitable" is more than enough to pass that test. Saying "playoff" is even better.
It clearly passes constitutional muster because there is a rational basis for the law.
Seriously, Congress can pretty much do whatever it wants itself. If it doesn't feel like it, it can delegate almost any power to an agency to deal with.
January 9th, 2009 at 2:08 PM ^
That's a good point. It just seems to me that this is one of those matters that Congress can constitutionally involve themselves in but have little in the way of enforcement.
Do we really think it's OK to withhold funds from our country's universities because Congress doesn't like how they play their football post-season? I'd like to know who's willing to pull that trigger. "Sorry Duke and Stanford, we know you need these funds to educate the world's future leaders, but we think Utah deserved a shot at the title."
January 9th, 2009 at 2:12 PM ^
If you get federal funds you have to play by the rules. It's the same reason we have a drinking age of 21, though that reasoning is even more convoluted.
If we don't like it, we vote out our representatives for wasting everyone's time and screwing with the education system.
January 9th, 2009 at 2:17 PM ^
I understand the reasons behind the drinking age, but I think people view money for roads differently than for education. I also think people view the reasons behind a set drinking age as more valid than those behind a federally mandated college football playoff.
I'm not saying this is unenforceable. I'm saying that it toes a line that Congress may decide not to toe based on the perceived (un)importance by so many people.
January 9th, 2009 at 2:24 PM ^
offends very few people, and will take basically no time in Congress. It's a lot like pork barrel spending. It makes the constituents happy because it goes to worthwhile causes 99% of the time (like this will make the majority of cfb fans happy), offends few people due to it's miniscule impact on the federal budget (very few cfb fans are in love with the BCS), and Congress spends little to no time arguing the merits of particular pork spending projects inserted into bills--unless you are John McCain and apparently somehow think pork comprises 80% of the federal budget.
January 9th, 2009 at 2:15 PM ^
The college presidents would probably not fight this. The threat alone, without ever have to enforce, would bring people on board.
January 9th, 2009 at 2:20 PM ^
Money is the reason why the NCAA hasn't changed the system on it's own. If the new system causes enough schools to lose money, they may decide it's worth the risk.
January 9th, 2009 at 1:56 PM ^
Introduced by a Representative from Texas. Figures.
January 9th, 2009 at 2:02 PM ^
Wait ... does anyone really want congress meddling in college football? I don't see that turning out well for anybody.
January 9th, 2009 at 2:07 PM ^
All they will do is kill the BCS and lay out broad guidelines for a permissible system. The intricacies will be worked out by people that know what they are doing - just within the confines of what Congress or the agency provides.
January 9th, 2009 at 2:08 PM ^
Obama has already discussed this with Barton. I have faith that the President-elect can do a better job of oversight than BCS commissioners with their hands in the pot.
January 9th, 2009 at 2:23 PM ^
yea, because he has all the time in the world to figure it out. It's not like there isn't a global financial crisis, war(s) in the middle east, rising unemployment or anything else unimportant going on right now that should take precedence over a football game.
January 9th, 2009 at 2:26 PM ^
He's already proposed an eight game playoff. Didn't you see 60 minutes? The rest of the details can be delegated and he can concentrate on what's really important.
January 9th, 2009 at 2:34 PM ^
Yea, and he has already proposed a solution to the financial crisis that still needs details. Same with healthcare. Same with job creation. Once again...getting the "details" on these would seem to be a bit more important than a football game.
January 9th, 2009 at 2:28 PM ^
people really have no clue how our government works. Obama will utter one sentence in support of something-which he already did at the SB-and his job is over. This sets the rest of the machine into action and he never has to focus on the problem again. Congress picks up the ball and tells their staff to draft a bill. The rest of Congress then votes yes if they perceive the bill will result in love from their constituents.
Passing laws takes time, but not from important people.
January 9th, 2009 at 2:37 PM ^
Really? That's all he has to do is speak a couple of words and nothing else? Wow, I thought there was a lot more to being president than that...
January 9th, 2009 at 2:43 PM ^
For unimportant shit like this, yes. It's called agenda-setting. He's not sitting down with Congressional leaders to draft brackets.
For important things it's a little more in-depth. Shocking, I know. Then he meets with experts, cabinet members, gets a feel for public sentiment, and lays out policy positions. Congress implements things and delegates responsibilities to others. The intricate details are filled in by lower level people with executive branch oversight.
January 9th, 2009 at 2:50 PM ^
This is unimportant shit? So why waste any time on it all?
January 9th, 2009 at 3:00 PM ^
Do you honestly think government works on nothing but pressing issues that affect everyone everyday? Just for fun, here is a list of bills sponsored and passed by Hillary Clinton during her Senate Career:
S.694 : A bill to direct the Secretary of Transportation to issue regulations to reduce the incidence of child injury and death occurring inside or outside of light motor vehicles, and for other purposes. (This is currently in conference committee to reconcile difference with the House bill)
Passed in the Senate:
S.CON.RES.27 : A concurrent resolution supporting the goals and ideals of "National Purple Heart Recognition Day".
S.RES.21 : A resolution recognizing the uncommon valor of Wesley Autrey of New York, New York
S.RES.92 : A resolution calling for the immediate and unconditional release of soldiers of Israel held captive by Hamas and Hezbollah.
S.RES.141 : A resolution urging all member countries of the International Commission of the International Tracing Service who have yet to ratify the May 2006 amendments to the 1955 Bonn Accords to expedite the ratification process to allow for open access to the Holocaust archives located at Bad Arolsen, Germany.
S.RES.222 : A resolution supporting the goals and ideals of Pancreatic Cancer Awareness Month.
S.AMDT.666 to H.R.1591 To link award fees under Department of Homeland Security contracts to successful acquisition outcomes under such contracts.
S.AMDT.2047 to H.R.1585 To specify additional individuals eligible to transportation for survivors of deceased members of the Armed Forces to attend their burial ceremonies.
S.AMDT.2108 to H.R.1585 To require a report on the planning and implementation of the policy of the United States toward Darfur.
S.AMDT.2390 to H.R.2638 To require that all contracts of the Department of Homeland Security that provide award fees link such fees to successful acquisition outcomes.
S.AMDT.2474 to H.R.2638 To ensure that the Federal Protective Service has adequate personnel.
S.AMDT.2823 to H.R.3074 To require a report on plans to alleviate congestion and flight delays in the New York/New Jersey/Philadelphia Airspace.
S.AMDT.2917 to H.R.1585 To extend and enhance the authority for temporary lodging expenses for members of the Armed Forces in areas subject to a major disaster declaration or for installations experiencing a sudden increase in personnel levels.
January 9th, 2009 at 2:25 PM ^
But, the bill says they couldn't call the winner "national champion", couldn't they call it the "US champion" or something?
January 9th, 2009 at 2:33 PM ^
Courts would interpret any use of "national" and "winner" as prohibited terms. These days, courts are far less into technicalities than most people think.
January 9th, 2009 at 2:36 PM ^
It would violate the spirit, maybe not the letter, of the law. This would not be a problem.
January 9th, 2009 at 2:37 PM ^
As an anti-playoff, and something of a libertarian, I hate every word of this bill with every fiber of my being.
January 9th, 2009 at 2:43 PM ^
I agree. Way too much government for my taste. Let the private sector handle this until there is a legitimate problem. There isn't.
January 9th, 2009 at 2:55 PM ^
Yes, it looks petty and ridiculous in the currect political and economic environment, but that's not the current debate. The point is that there are monied interests in place that are keeping the majority's will from being expressed. Almost everyone hates the BCS, but there it is. Government is supposed to express the will of the majority, especially when federal funds are used.
Exception - when there is a discrete, insular minority group that needs protection, a la Carolene Products case footnote 4. This isn't present here. Note - "minority" does not necessarily mean race...just any oppressed group that does not have adequate government protection. The BCS is not such a group.
January 9th, 2009 at 2:59 PM ^
Just because a few thousand people told an ESPNU poll they want a playoff, that doesn't mean that's the will of the people or that the will of the people must be enforced. This is a country of 300 million, most of whom can't afford to care about the BCS.
January 9th, 2009 at 3:05 PM ^
that you can be proud of. You knocked it out of the park. An ESPNU poll? What?
On this note i think I will withdraw from this thread.
January 9th, 2009 at 3:09 PM ^
Thanks for announcing that you were leaving the thread. I will no longer wait anxiously for your next comment.
January 9th, 2009 at 3:11 PM ^
Yes, an ESPNU poll. We have no data to suggest more than a fraction of the population of this country even care about this subject. The idea that it has across the board majority support is simply not tenable.
January 9th, 2009 at 3:11 PM ^
No, come back. Football fans love pompous law students.
January 9th, 2009 at 3:22 PM ^
...says the pompous law student. Look, all law students suck equally. Once you go to law school you either outwardly suck or work hard to suppress the asshole inside you for the rest of your life to appear normal to others. In arguments, that is.
If I let some of my asshole out in this thread, my bad. That's why I left the thread.
January 9th, 2009 at 4:12 PM ^
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The point is that there are monied interests in place that are keeping the majority's will from being expressed.
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So? Domino's Pizza is a multi-million-dollar industry each year, certainly a "monied interest." In fact, Tom Monaghan sold his stock at a "going-concern" price of around a billion dollars a few years back. If a majority of people in this country believe that Domino's sauce sucks and should contain more basil, congress has the power to regulate this and should do so? No and no.
What's the rational basis? "Domino's operates in interstate commerce and better sauce equals more profits for Domino's equals more tax revenue for the federal government" is pretty darned flimsy.
Compare this to "NCAA FBS operates in interstate commerce and a more popular product equals more profits for hotels and restaurants and media outlets (remember, the colleges and the NCAA are largely tax-exempt) equals more tax revenue for the federal government." I don't see any better basis for the law than that.
Unfortunately, pretty much every law survives rational-basis scrutiny by the courts.
But "Because lots of people want it" has never been a sufficient rational basis. The government must demonstrate some legitimate protective policy reason for the regulation.
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Government is supposed to express the will of the majority...
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Yes, in matters traditionally within the scope of a government's authority in a free democratic republic (i.e., protection of its people abroad and domestically). Regulating how schools (even public schools) conduct what are essentially extra-curricular activities that don't infringe on anyone's constitutional or legal rights doesn't properly fall within the scope of the government's traditional powers.
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...especially when federal funds are used.
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Yes, point well taken. But what about the private schools affiliated with the NCAA? The NCAA receives no government money that I know of. Congress could make public schools comply by threatening to withhold money, but it has no power over private schools. The rights of the private schools would be hijacked. As much as I'd love to see Notre Dame pissed off about something, this just doesn't stir the Kool-Aid.
The BCS is a business, and a pretty darned successful business, aside from the fact that some, or even most, of the people who pay attention to college football (and that's probably not even near half of the total population) don't like it. But people not liking it is not a basis for regulating it. If the BCS had some impact on public health or security or welfare, then regulate away. But there isn't a rational basis in the law for regulating businesses that don't hurt anyone and don't violate some tenet of public policy.
"People don't like it" doesn't cut it legally.
January 9th, 2009 at 4:16 PM ^
couldn't resist. See! I'm just an asshole.
January 9th, 2009 at 5:07 PM ^
Thank God you never had to read stuff that long in law school, right?
January 9th, 2009 at 5:40 PM ^
You make some good arguments about why there is no rational basis for this legislation. However, I think you underestimate how easy it can be to pass that test.
If the BCS is marketing itself as a "national championship" but does not deliver on that promise in the marketplace, then it could be engaging in fraud or unfair competition in interestate commerce. For example, Utah went undefeated but because the established system inherently devalues their conference and places greater value on BCS conferences, they were virtually incapable of getting into the championship game. The BCS is setting up barriers to entry that the Utahs of the world cannot overcome.
Certainly there is a rational basis for Congress to pass laws that prevent private entities like the BCS from engaging in fraud or unfair competition at the expense of consumers and universities. Where so many federal dollars go to university education, tuition assistance, and research, Congress probably has a rational basis for ensuring that the institutions it supports do not profit from unfair competition and are not the victims of unfair competition.
You may not think the law is important but that does not mean there is no rational basis for it.
Mine may not be the best argument supporting a rational basis for the legislation, but it took about two seconds to think up and I only make it to demonstrate that the threshhold here is extremely low.
January 9th, 2009 at 2:42 PM ^
The idea that this would ever pass is laughable. The public outcry during wartime and in the midst of a mini depression would be devastating.
January 9th, 2009 at 2:46 PM ^
It would absolutely be introduced and passed. And there likely would be no fuss because there are few on the anti-playoff side of the debate...aside from those getting rich off of it.
If a big debate blows up then people will be pissed and Rush Limbaugh will launch tirades against "damn libruls wasting the taxpayers' dollar!"
Congress passes unimportant bills and shit irrelevant to current crises all the time.
January 9th, 2009 at 2:56 PM ^
This has nothing to do with college football, 9 out of 10 people in this country give two shits about Utah's national title hopes. I don't want Congress forcing a playoff, it's an absurdly irrelevant "issue".
January 9th, 2009 at 2:58 PM ^
What bill would not pass with 95%+ public support. College football is important to many of us. You're on this board aren't you? Not as important as national security or the economy, but important enough for congressmen not to want to piss off their constituency by voting against it if we make it known that we will be pissed off. That is why I started this post. There may not be much that our government can do to definitively eliminate terrorism or improve the economy, but this is a problem they (we) can actually do somethething about with no taxpayer money involved and little time or effort.
January 9th, 2009 at 3:01 PM ^
Do you really think more than a few million people give two shits about college football? It's practically a niche sport, hardly the kind of thing that will get someone unseated from Congress.
January 9th, 2009 at 3:02 PM ^
Because if it was you missed all my points.
January 9th, 2009 at 3:05 PM ^
No, it was directed at the person directly above.
January 9th, 2009 at 3:32 PM ^
According to a Harris interactive poll of the popularity of sports, college football ranks third, one percentage point behind baseball. Congress recently spent an enormous amount of energy to protect fairness in baseball, and there is no reason to think they wouldn't spend some energy on protecting fairness in college football as well. Congress has already held hearings on the BCS in the past, and the BCS has only become more unpopular with time. Try to tell Texans right now that college football isn't important.
http://www.harrisinteractive.com/harris_poll/index.asp?PID=719