Tonight college football fans will be watching the on-field competition in the Bowl Champion Series game between Florida and Oklahoma, which will determine the BCS “national champion.”  But some politicians, in addition to President-elect Barack Obama, are as interested in off-field issues such as how the participating teams in this game are determined and how this game is described.

Utah Attorney General Mark Shurtleff claims the BCS system unfairly prevents universities from non-BCS conferences (e.g., the undefeated Utah Utes) from participating in the BCS championship game, which places these schools at a competitive and financial disadvantage in violation of the federal antitrust laws.  Two Texas Republican congressmen, Joe Barton and Michael McCaul, along with Illinois Democrat congressman Bobby Rush, have introduced federal legislation that would “prohibit the marketing, promotion, and advertising of a postseason game as a ‘national championship’ football game, unless it is the result of a playoff system.”  Their proposed bill would make any non-compliant football championship game “an unfair or deceptive act or practice” that violates the Federal Trade Commission Act.  The Utah attorney general’s antitrust investigation and proposed federal legislation both seek to have the major college football championship determined by a playoff system rather than a complex formula based on subjective human polls and computer rankings that determine the #1 and #2 ranked teams at the end of the regular season.

In a forthcoming article to be published soon in the Virginia Sports & Entertainment Law Journal, Professor Timothy Davis (Wake Forest University School of Law) and I compare and examine the existing legal frameworks governing athletic eligibility rules and dispute resolution processes for Olympic, professional, college, and high school sports from both private law and public law perspectives.

Given the substantial benefits that athletes derive from athletic participation, our article assesses whether the developing discrete bodies of international, national, and state law appropriately regulate the promulgation of athlete eligibility rules and their application by monolithic sports leagues and governing bodies having broad, plenary authority to oversee Olympic, professional, college, and high school sports. In conducting our analysis, we consider whether athletes have an effective voice and/or voting rights in the eligibility rule-making process; the nature and effect of the eligibility rule; and the nature and scope of judicial or arbitral review of a sports governing body’s eligibility rules, application, and enforcement.

Many sports fans play fantasy baseball or football games.  Should the operators of on-line fantasy games, which generate millions of dollars in annual revenues, have to pay a licensing fee to Major League Baseball, the NFL, and/or their players for using game statistics and player names?  For example, does the unauthorized use of Brett Favre’s name and statistics in a for-profit NFL fantasy football game violate his right of publicity?

In my recently published article, A Triple Play For The Public Domain: From Delaware Lottery to Motorola to C.B.C., 11 Chapman L. Rev. 569 (2008), I argue: 

The creation of a collateral product incorporating merely public domain information about a sports event or athletes’ performances, including fantasy league games, is not (and should not be) infringing — absent copyright or patent infringement in violation of federal law, or a likelihood of consumer confusion regarding its origin, endorsement, or sponsorship in violation of the Lanham Act.