The Utah Attorney General
has backed away this fall from his
threatened legal attack on the Bowl
Championship Series (“BCS”) for college
football. For months after the
University of Utah fell short of a BCS
berth, the Attorney General rattled
the saber of an antitrust suit, publicly
advertising (twice) for lawyers to sue,
recruiting other plaintiffs, and threatening
to file suit imminently.

In an apparently coordinated
maneuver, last year, Senator Orrin
Hatch (R. Utah) and others persuaded
the Obama administration’s
Justice Department to send a letter
to the NCAA president inquiring into
why the BCS lacked a playoff feature.
After the University of Utah joined
one of the primary BCS conferences,
and as the Utah Attorney General’s
term drew to a close, he backed down
and announced that he would not
sue. The federal Justice Department
did not sue either.

What This Case Teaches:

As Sun Tzu observed in the Sixth
Century B.C.E., the adversary performing
a public and elaborate war
dance is often less likely to attack
than a quiet one. One should worry
more about the quiet, but diligent
antitrust enforcer looking for evidence
rather than an enforcer looking for
headlines from threats to sue. (This
Newsletter’s editor was particularly
happy to see this result, as the
national sports media had quoted
him as predicting that an actual
attack would not, in fact, follow the
war dance.)