O'Bannon judge weighs in as NCAA trial concludes
What U.S. District Judge Claudia Wilken said on the final day of the case that could result in college players being paid for use of their names, images and likenesses.
OAKLAND, Calif. -- On the final day of the Ed O’Bannon v. NCAA trial, it was U.S. District Judge Claudia Wilken’s turn to weigh in heavily on the antitrust case.
Wilken started by cautioning that what she was about to say would not indicate what her ruling would be regarding the NCAA’s restrictions against players being paid for use of their names, images and likenesses. That didn’t stop everyone -- lawyers, media, observers -- from parsing every word to determine meaning.
In some instances, Wilken was very explicit about elements of the nearly five-year-old case, which lasted 15 trial days and roughly 80 hours and heard testimony from 24 witnesses. She cut to the chase with one overarching question on her mind to the plaintiffs.
“Why did you go with the NIL (theory) instead of just saying you want to pay (players) more?” Wilken asked. NCAA attorney Glenn Pomerantz thanked Wilken for asking the question.
However, the question cuts at the heart of the NCAA’s future headaches because Wilken oversees the Martin Jenkins scholarship lawsuit, brought by labor attorney Jeffrey Kessler, that takes the approach of outright free agency. After the trial, O’Bannon attorney Michael Hausfeld said his team wanted to focus on restraints that were absolutely capped instead of “getting into the whole pay for play, which is just a play on words.”
In addition to laying out theories of what an O’Bannon win might look like, Wilken prodded and poked and went round and round with lawyers on definitions that still were somewhat undefined on Day 15. These were some of the judge’s comments:
Wilken said she was having a difficult time distinguishing between a market and a product in the plaintiffs’ claim. Wilken asked for case precedent or an analogy in the “complicated” buyer/seller arrangement in this antitrust case. Hausfeld said the issue is unique to college athletics and has never been decided.
Because of difficulties she was having, Wilken asked the plaintiffs if they wanted to switch their theory from a monopoly (a market structure with a single seller) to a monopsony (a market in which there’s only one buyer). Hausfeld asserted the plaintiffs' case is both. The NCAA objected and said it would have tried a different case if it had known the theory was monopsony -- a theory Wilken herself raised early during the trial.
“The only reason they [NCAA lawyers] are saying it’s different is because they’re trying to inject this radical antitrust theory which would permit not only good cartels, but bad cartels, to reap all sorts of profits,” O’Bannon attorney Bill Isaacson said in an interview. “If you don’t adopt that theory, it doesn’t matter what name you put on it.”
Said NCAA chief legal counsel Donald Remy: “We’ve been doing this for five years, 15 days, and we spent the last couple hours here seeing that the plaintiffs still have not been able to articulate a coherent antitrust theory. It’s a challenge. It’s a challenge because it’s simply not there.”
NCAA expert analysis was “wrong”
Wilken said she thinks NCAA economic expert Lauren Stiroh’s antitrust analysis was “wrong.” Stiroh had said that individual components, such as consumer demand, need to be investigated to determine an antitrust violation.
The quality of Stiroh’s analysis was a point the O'Bannon lawyers hammered at for several days this week. If the NCAA’s expert testimony falls apart, “nothing changes and (O’Bannon economic expert) Roger Noll’s testimony stands,” Isaacson said.
The battle over NIL rights on TV
Wilken told the plaintiffs that even if the NCAA’s TV restraints on players’ alleged NIL rights are unfair, it doesn’t appear to hurt consumers since so many games are on TV. Said Hausfeld: “What would a broadcast or telecast be worth if you don’t know who the players are? The names are important.”
Isaacson said afterward he thinks the plaintiffs’ case that players have live broadcast rights -- a potentially difficult hurdle with First Amendment and state publicity law implications -- got stronger. Hausfeld said those TV rights are “virtually in every contract” by calling for the clearance of NIL rights for participants.
Said Isaacson: “There’s no explanation for why the [video game] avatar of Ed O’Bannon has more rights than the live Ed O’Bannon that plays the game.”
NCAA’s video game problem
Once again, Wilken displayed agreement with the plaintiffs on several issues related to video games. When Pomerantz said there’s no proof what Electronic Arts and consumers would do without the NILs of college football and basketball players, Wilken jokingly asked if they would switch to a dance video game. The NCAA started the trial by announcing a $20 million settlement with video game plaintiffs.
Questioning the amateurism defense
Wilken questioned the NCAA’s amateurism defense in relation to popularity. She said what seems popular about college sports is it’s college and not just a player brought into a community as a pro.
Pomerantz discussed the NCAA v. Board of Regents case from 30 years ago that ended the NCAA’s monopoly over football TV contracts. The NCAA uses some lines in the Supreme Court ruling as a defense for not paying players. Wilken again said that case wasn’t about paying players.
Integration of academics and athletics
Wilken said she’s having trouble seeing what’s pro-competitive about the integration of academics and athletics in a market for group licenses with TV and video games. Wilken asked the NCAA how putting money into a trust fund would interfere with its ability to integrate academics and athletics. Wilken said the NCAA would still have a 20-hour rule on athletic participation and grade-point average standards.
Wilken focused heavily on coaches’ salaries throughout the trial. She said if some schools pay players more money than others, schools could pay their coaches less. Pomerantz said that’s unlikely because coaches’ salaries are set in a competitive market.
"The irony for me sitting there is the NCAA a long time ago tried to put restrictions in place about coaches' pay and a group of plaintiffs' lawyers sued us about that," NCAA vice president of championships and alliances Mark Lewis said after the trial. "So I’m kind of throwing my hands up and saying, 'We tried to restrict pay, you sued us, and now you sue us because we’re paying coaches too much.'"
Fan interest survey
Wilken said she understands the plaintiffs’ criticism of NCAA expert John Dennis’ survey that shows the public doesn’t want to pay players. But she questioned why the plaintiffs didn’t have a competing survey. Isaacson cited NCAA expert Daniel Rubinfeld’s testimony that he didn’t think control groups could be done for a survey asking the public NIL questions.
Post-trial analysis by lawyers
Afterward, the NCAA and the O’Bannonn lawyers both naturally talked up where they felt they succeeded. Remy went so far as to say the NCAA is “way ahead.”
“At the end of this trial I feel comfortable and confident that the NCAA put forth a case and has put forward evidence that sustains the legitimacy of the collegiate model today, tomorrow, always,” Remy said.
As the plaintiffs’ lawyers spoke to reporters, O’Bannon -- the namesake of the lawsuit as a former UCLA basketball star -- towered over them and listened. O’Bannon testified on Day 1 and returned in the past week to lend support.
To O’Bannon, his biggest surprise was that Wilken never threw out the plaintiffs' claims all those years ago. He compared the case to starting a basketball game and not getting blown out in the first two minutes.
“You keep playing and you’re just hanging with them and after a while you’re like, ‘I’m just going to go toe to toe with this fool and see what happens,’” O’Bannon said.
The ball is now in Wilken’s court, although there will undoubtedly be appeals. (Remy said he expects appeals no matter who wins.) Future filings are due over the next week and both sides expect Wilken to rule by early August.
The trial is over. What the future of college sports looks like may only be beginning.
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