OAKLAND, Calif. — On the last day of the Ed O'Bannon trial, the O'Bannon plaintiffs filed a proposed injunction with more options of what a victory could look like. And U.S. District Judge Claudia Wilken tossed out some ideas as well.
Friday's filing gives Wilken many more choices if she determines the NCAA illegally prevents Football Bowl Subdivision football players and Division I men's basketball players from being paid for their names, images and likenesses (NILs). One option is a deferred trust fund for players, an idea Wilken said this week is not off the table. Another possibility is the so-called Olympic model.
Before the trial started, the plaintiffs filed a proposed injunction of what an O'Bannon win could mean if Wilken ruled in their favor. The new proposed injunction has 11 options. They include preventing the NCAA from the following:
• Banning future, current or former players from negotiating or entering into group licenses with any school, conference, telecaster, digital or radio broadcaster, filmmaker, or video game manufacturer for payment of their NILs.
• Banning deferred compensation for players' NILs through a trust fund based upon eligibility or graduation, whichever comes first.
• Banning schools and conferences from awarding four-year scholarships in exchange for the NIL rights of players.
• Banning schools and conferences from awarding guaranteed scholarships that resume after the playing career is over in exchange for the NIL rights of players.
• Banning schools and conferences from awarding medical issurance and related medical expenses in exchange for the NIL rights of players.
• Banning schools and conferences from providing a player's friends or family with travel expenses and complimentary admission in exchange for the NIL rights of players.
The plaintiffs also have an option to change how the NCAA currently defines pay in Bylaw 12.02.7 of the NCAA Division I manual.
In response to the proposed injunction, the NCAA filed under seal a response that it says contains confidential information. The NCAA wrote that its response was filed under seal at the direction of Wilken during a sidebar on Thursday.
Near the end of the three-week trial that concluded Friday, Wilken tossed out some ideas of her own if she grants an injunction. Some of her ideas:
• Pay players some amount of money in NIL revenue through a trust fund for after they graduate or at the end of eligibility.
• Create a salary cap or luxury tax. However, Wilken wondered if a cap would be an antitrust violation. She asked both sides if they understood what she was talking about in relation to a luxury tax in Major League Baseball.
• Pay out revenue equally to players.
• Pay NIL money up to the cost of attendance.
NCAA attorney Glenn Pomerantz disagreed with all of Wilken's less-restrictive alternatives. Pomerantz said the plaintiffs must prove the NCAA's procompetitive justifications can be achieved by less-restictive means.
"They can't just tell you, 'Try this, try that,'" Pomerantz said.
Pomerantz said he doesn't understand how paying players for their NIL rights could be connected to future revenue. Wilken said it would be a percentage, not a specific amount. But Pomerantz said there was no mention of that idea in the court record. “That was my understanding,” Wilken said. “I could be wrong.”
After the trial, NCAA chief legal officer Donald Remy said at this point he can't think of a less-restricted alternative to pay players for NILs that would work within the NCAA's collegiate model.
“What we've heard in terms of a trust fund is you would entice student-athletes to come to the university with a promise to pay them at the end of their time at the university,” Remy said. “And if you did that, and no restrictions on the amounts, it is no different than paying them while they're in school. It's compensation that's just deferred at the end of the day.”
Remy said the possibility of a settlement hasn't come up. "We'll listen to what the judge has to say and then we'll make our decisions after that," said Remy, who believes there will be appeals no matter who wins or loses.
O'Bannon attorney Bill Isaacson said he sensed Wilken was trying to find a “middle ground” on a way to compensate players. Isaacson expressed disbelief that the NCAA won't consider a trust fund associated with players' NIL rights in a way that positively impacts the NCAA's model.
“Ask yourself, if a trust fund were set up with some reasonable amount of money for all use of names, images and likenesses so it can be deferred for people like O'Bannon and used for education or good purposes, does anybody seriously think NCAA basketball or the bowl system is going to be less popular?” Isaacson said. “Nobody thinks that.”
NCAA vice president of championships and alliances Mark Lewis, who oversees the lucrative NCAA men's basketball tournament, said the tournament could become less popular if some set of players are paid and others are not.
“We want to award kids for graduating, but I think that's something we should be able to decide for ourselves as to how does that fit into a university,” Lewis said. “What if a trust fund, just as an extreme, was $10 million? Now are you going to pressure teachers for grades so they graduate? This has got to work in the college setting and there's a lot of questions and our presidents will try to figure this out.
Lewis said the NCAA must do better for athletes, but “there's a difference between saying we need to do better and saying that we broke the law. I think it's been hard because we've spent the last few years trying to fix our system, and we failed. But we haven't given up. (NCAA president) Dr. (Mark) Emmert and the commissioners and the college presidents are working hard to try to fix our rules so we can do better. And I hope people hold us accountable to that.”
Change is coming to college sports, O'Bannon attorney Michael Hausfeld said.
“I don't think anybody questions there's going to be a new world of college sports,” he said. “It's where that world ends up and whether it ends up by resolution, by court order, by a new vote, a breakaway of the big five (conferences). Something within this structure has got to give because the focus of Ed's issues forced them to look at their restraints and look at the benefits that were being unfairly denied to the athlete.”