O'Bannon vs. NCAA Week 1 analysis: The long game being played
O'Bannon attorney on NCAA: "It doesn't appear to us that they're trying this case to win it at the District Court level." NCAA chief legal officer: This week "you'll hear the real story."
OAKLAND, Calif. -- Several times last week, reporters asked NCAA chief legal officer Donald Remy to handicap how the NCAA is faring in the Ed O'Bannon trial, as if a trial can be scored round by round like it's a boxing match. Remy understandably responded there’s no way to keep score of such a lengthy trial, which increasingly looks like it will last all 15 days.
The NCAA has yet to put most of its witnesses on the stand. Week 1 of the trial over whether college athletes should be allowed to get paid for use of their names, images and likenesses was heavily slanted toward what the plaintiffs want U.S. District Judge Claudia Wilken to hear.
"Trials are like this," Remy said. "It is always the case that in the beginning you hear a lot of the evidence that the plaintiffs want to put forward. You get some things out of cross-examination, but I think when you hear the NCAA’s witnesses -- including the NCAA president [Mark Emmert], university presidents, conference commissioners, athletics directors and NCAA staff -- testify, in addition to some of our experts, you'll hear the real story."
In a bold statement, O'Bannon lead attorney Michael Hausfeld essentially said the NCAA thinks it's going to lose this trial. Hausfeld noted the NCAA's hiring of prominent appeals attorney Seth Wexler in 2013 and many efforts by the NCAA to delay or redefine the trial in the weeks before it started.
"When you announce years ago that you hired people to take the appeals to the Supreme Court and you see the efforts they made at the Court of Appeals to stop the case, it doesn't appear to us that they're trying this case to win it at the District Court level," Hausfeld said. "They're trying to create it for a record they can take up to the Court of Appeals and possibly to the Supreme Court."
When asked whether the plaintiffs also were trying to build a record for appeals, O'Bannon attorney Bill Isaacson said, "You always keep that in mind as a lawyer. But we're trying this case with this court and this judge and hoping we're going to prevail."
In an interview before the trial started, Remy said the NCAA continues to view appellate courts as a viable option.
"The issues that are at play in the O'Bannon case are the same issues we've talked about with appellate courts," Remy said. "To the extent the case continues and the challenge is core to the model of collegiate athletics, it's something that we'll continue to defend."
Welcome to the short and long games of the O'Bannon trial. The plaintiffs appear to be pressing for a favorable win in District Court that could immediately impact public opinion. The NCAA seems to be in part eyeing the appeals process to help shape what the future of college sports looks like.
Plaintiffs: Conferences could set pay rules for players
At times during the opening week of the O'Bannon trial, the NCAA's strategy has seemed apparent. Wilken previously said in February that the word "amateurism" wouldn't have much use in the case, but the concept has been used repeatedly by the NCAA as a defense for not allowing players to be paid off their names, images and likenesses.
NCAA lawyers have often pressed to enter evidence or statements into the trial that Wilken didn't want. For example, NCAA lawyers sought to admit the plaintiffs' damages model to share television revenue with players. The model was largely created to seek $3.2 billion in damages from past licensing revenue, but Wilken did not certify the class so the damages case ended.
Hausfeld said the model has no relevance on the antitrust case because the plaintiffs are now limited to seeking an injunction against NCAA rules. The NCAA has tried using the damages model to help its procompetitive justifications by showing what the future of college sports may look like for university budgets, consumer interest and competitive balance.
Wilken expressed no desire to enter into the case the 400-page damages model report. She did accept the NCAA submitting one year of the model’s data with fewer pages, although she indicated she didn't want to read it.
"I can provide a copy if you want," NCAA lawyer Rohit Singla told Wilken.
"Not especially," Wilken replied.
The damages model does hit on a key issue. If the plaintiffs win, what exactly would an injunction entail should the ruling survive appeals? It's not necessarily Wilken's place to answer that. The NCAA has tried to show a doom-and-gloom future if players are allowed to be paid while the plaintiffs don't pretend to have the precise answers, either.
O'Bannon attorneys and two of the plaintiffs' witnesses, economists Roger Noll and Daniel Rascher, speculated that conferences could decide the rules on players being paid. The attorneys said each conference could individually set a cap on how much money players could receive without violating antitrust law, as long as the conferences don’t collectively set the limit.
"A group of schools can get together and say we're going to form one business and compete against all these other businesses instead of just having one monopoly," Isaacson said. "The SEC is not a monopoly in the way the NCAA is. A few businesses can get together and compete against a whole bunch of other businesses."
The plaintiffs point to what they believe was a key admission last week by former CBS Sports president Neal Pilson, the NCAA's television expert. Pilson testified that paying players would be viewed negatively by the public and thus potentially hurt the product. But when pressed whether there's a dollar amount to a player with which he would feel comfortable, Pilson said, "I'd tell you $1 million would trouble me and $5,000 wouldn’t."
Remy brushed off the significance of Pilson's statement, but the plaintiffs pounced on it.
"Here was the NCAA expert saying, 'I don’t know what number hurts the sport,' " Isaacson said. "And in a market, the conferences could decide that number. They could figure that out instead of the NCAA deciding zero."
Would Supreme Court take O’Bannon?
Hausfeld reminded reporters that allowing conferences to set the payment rules is only one possible outcome if there's an injunction.
"The ultimate outcome is everybody has to act independently, just like they do with coaches and facilities," Hausfeld said. "That's a total open market. An injunction basically says this is what you're doing that you can't do. … It doesn't say what you have to do and it doesn't predict what the outcome will be."
At the O'Bannon trial, the NCAA has been unable to use protecting women's sports and non-revenue sports as a justification for not allowing men's basketball and football players to be paid. Wilken tossed the argument before the trial started.
"I'll tell you the honest-to-God truth: That is a legitimate part of collegiate athletics," Remy said. "It's hard to talk about what we do without recognizing a large portion of the revenue goes to support these women and Olympic sports."
Isaacson said his sense from Wilken is she will make a ruling by asking the sides to "show me your evidence and not base it on speeches and flowery language." Several times, Wilken asked both sides’ lawyers not to ask witnesses to give opinions on old statements from other people, but rather just give their own opinions on the issue.
She expressed multiple times her interest in getting a clear picture of who gets the money in college sports, how it's acquired, and where it goes. On a couple occassions, Wilken asked how Pell Grants work in relation to athletic scholarships -- perhaps a nod to the fact that she's the presiding judge over some recently-filed scholarship lawsuits against the NCAA and its conferences.
Ultimately, Wilken will essentially be deciding in O'Bannon whether the positive effects of the NCAA's restraint on paying players outweighs the anticompetitive effects, and also whether players have names, images and likenesses rights for appearing in televised games. It's highly debatable whether the Supreme Court would ever take the O'Bannon case.
"Anything's possible," Isaacson said. "That’s what the NCAA is gambling on. [Wilken] is going to decide things by the reason of the evidence. The Supreme Court does not take cases to say, 'We decide the evidence.' They will have to have an interesting legal issue. How you resolve the evidence in this case is not necessarily an interesting legal issue."
The trial isn't happening in a vacuum. As it's going on, the NCAA is trying to restructure itself to allow the Power 5 conferences to make some rules benefitting athletes without the support of smaller Division I schools.
Several times, the plaintiffs have tried to use statements or documents related to the NCAA's reform efforts, such as comments by Conference USA commissioner Britton Banowsky to CBSSports.com that he would support considering allowing athletes to receive licensing money that's put aside into a trust fund and collected later. The NCAA repeatedly objects, citing a rule that prevents reform efforts addressing supposed antitrust violations from being used as culpability of conduct.
In May, Hausfeld sent a letter to Arizona State president Michael Crow asking what voice athletes would have under the Pac-12's proposed reforms. Hausfeld raised antitrust concerns by the Power 5 because they collectively discussed what rules -- such as cost of attendance stipends -- to create. In terms of antitrust law, Hausfeld said last week that the conferences would have been better off unilaterally deciding rules based on prices in their market rather than 65 schools joining together.
"I don't think it’s acceptable to the law," Hausfeld said.
If that sounds like possibly the next college sports lawsuit, it would fit with the first week of the O'Bannon trial. Inside an Oakland courtroom, a trial is trying to be won while a longer game is getting played.
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