Can Florida State Sue the College Football Playoff Committee?

Florida Attorney General Ashley Moody announced an antitrust investigation into the College Football Playoff Committee yesterday.  The unprecedented move raises complicated legal issues in the wake of Florida State’s controversial absence from the playoff.  In this blog post, we will answer what a lot of people are asking: Can Florida State sue the College Football Playoff?

Florida AG’s Investigation into the College Football Playoff

Attorney General Moody announced that the antitrust division of the Florida AG’s office sent a civil investigative demand to the College Football Playoff Committee (“CFP”).  Moody stated:

My office is launching an investigation to examine if the committee was involved in any anticompetitive conduct. As it stands, the committee’s decision reeks of partiality, so we are demanding answers — not only for FSU, but for all schools, teams and fans of college football. In Florida, merit matters.

The investigative demand seeks communications between the College Football Playoff and the SEC, ACC, NCAA, and ESPN. The demand also requests information about the nature of possible contracts, conspiracies in restraint of trade or monopolization of trade relating to anticompetitive effects of the College Football Playoff.

In other words, Attorney General Moody is attempting to gather evidence for an antitrust lawsuit against the College Football Playoff and potentially other entities such as the SEC and ESPN.

But what is an antitrust lawsuit?

Antitrust Laws Involved in Potential Florida State Lawsuit Against CFP

America’s antitrust laws date back to the Sherman Act passed in 1890.  Under the Sherman Act, entities and individuals are prohibited from entering into agreements to fix prices, rig bids, or allocate markets. In addition, exclusive agreements that have an anticompetitive effect are prohibited, along with any conduct that attempts to monopolize a market through anticompetitive actions.

There are other antitrust laws in addition to the Sherman Act, including the Federal Trade Commission Act and the Clayton Act. Review the FTC’s Guide to Antitrust Laws for a full review of the legal doctrines involved. In summary, anticompetitive behavior is not allowed in America and can be punished civilly or, in some instances, criminally.

The Sherman Act and other antitrust laws would apply to the College Football Playoff. We already know the NCAA is subject to antitrust laws because of the holding in NCAA v. Alston.

The Sherman Act has been interpreted by our court system to prohibit any “undue” or “unreasonable restraint of trade.”  Individuals, entities, or even state governments on behalf of their citizens, can seek an injunction to stop the anticompetitive behavior or they can sue for monetary damages.

What Evidence Does Florida State Need to Win an Antitrust Lawsuit?

Florida State (technically the “Florida State University System Board of Governors”) would have to prove that the CFP engaged in behavior that unreasonably restrained trade to its detriment. To prove this, some or all of the following evidence would be needed to win a lawsuit:

• communications between the CFP and other entities showing a preference toward another conference (i.e. the SEC)
• proof of financial motivation to exclude Florida State from CFP
• proof of financial motivation to include Alabama or Texas in the CFP
• proof that the CFP disregarded its own criteria in making its team selections

The “burden of proof” in antitrust lawsuits is a complicated combination of rebuttable presumptions. Nevertheless, for Florida State to sue successfully, it would ultimately have to uncover evidence that the CFP deliberately colluded to fix the playoffs to the detriment of FSU.

What Florida AG’s Demand Seeks

The Florida Attorney General’s civil investigative demand seeks documentation and answers tailored to show anticompetitive behavior. The demand expressly invokes the provisions of the Sherman Act.

Her demand includes sixteen specific questions (called “interrogatories”) and six requests for documents. For example, the demand seeks:

1. Communications between the CFP and the NCAA, ESPN, SEC, and ACC.
2. Compensation of the playoff committee members.
3. How each committee member voted.
4. The names of the members present for each vote.
5. Information about the software used to register votes.
6. Procedures for conflicts of interest and recusal.

You can read the full civil investigative demand to review all of the requests.

How Does this Play Out?

We will have to wait and see how the College Football Playoff Committee responds to the civil investigative demand before we can predict whether Florida State will sue. The CFP’s only response as of now is from its director Bill Hancock, who said:

We will carefully review this demand for information, but it sure seems to be an overly aggressive reaction to a college football ranking in which some fans somewhere were bound to be disappointed.

Florida Governor Ron DeSantis has already proposed setting aside $1 million for litigation against the CFP. The money would be transferred from the General Revenue Fund to the State University System Board of Governors for attorneys’ fees and costs.  The state legislature would have to approve such a measure, which likely wouldn’t occur until 2024.

This author believes any litigation initiated would likely be unsuccessful.  Florida State University is a member of the NCAA and the ACC, and has thus tacitly agreed to participation in the CFP and its selection criteria. Indeed, one of those selection criteria is the absence of key players, which certainly impacted Florida State’s final ranking outside the top four. There can be no doubt that the injury to star quarterback Jordan Travis impacted their final ranking.

As a member of the NCAA and ACC, Florida State has thus consented to the selection criteria regardless of whether they believe the results are fair. Unless there is serious evidence of nefarious collusion, Florida State cannot win any antitrust lawsuit it may file.