O'Bannon trial begins with talk of Little League, academics and more
What was learned, what was significant, and why was Little League baseball the O'Bannon trial topic of the day?
OAKLAND, Calif. — How does the first day of a trial about college sports begin? With former UCLA basketball star Ed O'Bannon testifying Monday he was "an athlete masquerading as a student" and that even Little League baseball players should be paid if they generate revenue.
Facing dozens of reporters outside the courthouse after his testimony, O'Bannon conceded his Little League comment didn't make too much sense.
"I probably should have thought a little bit before saying that," O'Bannon said. "Little Leaguers getting paid? Probably not."
And with that, college sports kicked off its trial Monday for the start of potentially a three-week event in the O'Bannon case, which alleges the NCAA violates antitrust law by not allowing players to be paid for use of their names, images and likenesses.
The rhetoric will be over the top at times. An Oakland courtroom actually produced a scene Monday in which an NCAA attorney described NCAA violator Jim Harrick as a valued mentor to O'Bannon in order to demonstrate the numerous ways athletes benefit from being in college.
Instead of trying to provide daily scorecards of who won and lost -- that's not how this case will be decided -- CBSSports.com will recap what was learned each day and the significance around certain lines of questioning and evidence.
The biggest news Monday was the NCAA's proposed $20 million settlement with the Sam Keller plaintiffs over video games. A settlement was bound to happen given that Electronic Arts and Collegiate Licensing Company had already reached an agreement over video games.
Five things that happened in the O'Bannon trial on Day 1:
1. Judge doesn't buy some testimony of economic expert. There were two witnesses Monday as the plaintiffs started their case: O'Bannon and Stanford economics professor Roger Noll. O'Bannon may be the higher-profile name, but Noll is more important to the O'Bannon plaintiffs' case to win. Noll once testified for the NFL players association about the value of licensing rights for ex-NFL players.
Noll's testimony Monday was moving along about many topics he previously discussed in his expert report when U.S. District Judge Claudia Wilken became confused over an issue. Noll said limits on player compensation causes "inefficient substitutions," such as money spent on facilities or coaches being paid high salaries.
"Who is harmed by these inefficiencies?" Wilken pressed Noll. "Clearly, it's not the coaches."
Noll struggled to identify a specific party. Replied Wilken: "I'm trying to figure out if some other harm is being done by insufficient substitution other than transferring money from student-athletes, and I'm getting the picture there isn't."
The heads of a couple NCAA attorneys noticeably perked up when Wilken made that comment.
Wilken also pressed Noll so she could better understand who's the buyer and who's the seller in the two markets allegedly being harmed by NCAA rules. O'Bannon attorney Michael Hausfeld attempted to step in and explain Noll's thinking to Wilken. When Hausfeld asked if he had helped her on the subject, Wilken replied with a laugh, "I'm not going to answer that."
After the trial, NCAA chief legal officer Donald Remy said he was a "little surprised" in changes of testimony about markets by Noll, who was on the stand for about two-and-a-half hours. He returns to the stand Tuesday and will eventually be cross-examined by the NCAA. Former Alabama football player Tyrone Prothro, a named plaintiff in the case, may also have his turn to testify on Tuesday.
2. Plaintiffs discredit NCAA expert. This wasn't new material in the case. But the O'Bannon plaintiffs successfully got into the record past statements from Daniel Rubinfeld, an NCAA economic expert, that the NCAA is a cartel.
Rubinfeld once co-authored a microeconomics textbook that said the NCAA is a "cartel organization" with a "persistently high level of profits … [that] is inconsistent with competition." Rubinfeld wrote that to reduce bargaining power by athletes, the NCAA creates and enforces rules regarding eligibility and terms of compensation.
Noll testified Monday that Rubinfeld's conclusion is a consistent analysis of a cartel by most economists. Rubinfeld is expected to testify for the NCAA later in the trial, at which point he'll certainly be asked about his textbook. He already was asked about in his deposition.
Rubinfeld's answer then: "The NCAA does impose restraints of trade, which some would characterize as cartelization, and the collaboration … which would be characterized as cartelization is part of the reason the NCAA and the leagues and conferences … have been profitable as a result of the fact there has been this coordination."
3. O’Bannon's academics go on trial. One of the NCAA's procompetitive justifications for not paying players is the integration of academics and athletics. So O'Bannon's academic career at UCLA, where he helped the Bruins win the national championship in 1995, was on center stage for both the plaintiffs and the NCAA.
O'Bannon said he spent 40 to 45 hours a week on basketball activities, preventing him from taking certain classes, such as speech and drama. He said he majored in U.S. history because it fit his basketball scheduled and estimated missing 35 classes a year due to basketball commitments.
"I was there strictly to play basketball," O'Bannon said. "I did basically the minimum to make sure I kept my eligibility academically so I could continue to play."
Under cross examination, the NCAA painted a picture that it was O'Bannon's fault he fell seven classes short of graduating. (O'Bannon said he returned to UCLA in 2011 and graduated.) O'Bannon agreed with NCAA attorney Glenn Pomerantz that he had the opportunity to spend more than 12 hours a week on studying but chose not to take advantage of that time.
"One of the interesting points the NCAA brought out was there could be a regular student who practices music 40 hours a week, a regular student who practices theater 40 hours a week, and they can major in music and theater," Hausfeld said in a post-trial interview. "You can't major in basketball."
4. O'Bannon makes inconsistent statements. During O'Bannon's roughly 90 minutes of questioning, the NCAA pointed out at least three inconsistencies in his 2011 deposition compared to his 2014 testimony. For instance, O'Bannon in 2011 told NCAA lawyers he did not think college athletes should be paid, whereas on Monday he took the opposite approach.
This ultimately may play no factor in Wilken's verdict. At one point O'Bannon knew some of his old comments were about to be used against him and remarked he figured they were coming, leading to laughter in the courtroom.
"I think the best thing is if you look at the deposition," Hauseld said after the trial. "Ed's position has always been there's exploitation of the athlete."
Said Remy: "The fact that he said something earlier and has said something different this time is for the judge to determine the credibility of his comments."
5. O'Bannon strikes out on Little League. O'Bannon's awkward Little League moment came when Pomerantz was leading a line of questions in which O'Bannon agreed he knew he was being televised in high school and college and never objected or asked to be paid.
So should high school athletes be paid if games are on TV? O'Bannon, as he did many times during his testimony, paused for several seconds to carefully consider his answer and replied yes, "if they are generating revenue for their school." What about Little League players for appearing on TV? O'Bannon said they "absolutely" should get paid "if they're generating revenue."
After his testimony, O'Bannon cut to the chase as honestly as anyone about the rhetoric and tactics that happen at trials.
"There will be things that I say or that I do that everybody isn't going to agree with -- for example the Little League thing," O'Bannon said. "But at the same time, there are certain things you have to say to get your point across and there are certain things you have to do to get your point across."
Soon after, O'Bannon had to leave to catch a flight. Lawyers retreated to hotel conference rooms to debrief over what transpired in the past five hours. Meanwhile, Little League baseball had some become the biggest topic in a case about whether college athletes are allowed to be paid.
It was only Day 1.
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