The NCAA's post-trial brief is “a stunning admission of defeat," lawyers for the Ed O'Bannon plaintiffs wrote in their scheduled reply filing on Thursday.
The rhetoric of the five-year-old case was turned up again as the O'Bannon plaintiffs made what may be the final word before U.S. District Judge Claudia Wilken rules in the case involving the use of athletes' names, images and likenesses (NILs). Since the three-week trial ended June 27, the O'Bannon plaintiffs filed their conclusions and the NCAA responded with its points. The plaintiffs received the last scheduled filing since the burden is on them to prove the NCAA has violated antitrust law.
“Instead of focusing on trial testimony and documentary evidence that it believes supports its pro-competitive justifications, the NCAA revisits stale legal debates (or unveils new ones for the first time ever) and preserves issues decided long ago for appeal,” the plaintiffs wrote. “In some places, it is as if our three-week trial did not exist."
It's not the first time the O'Bannon plaintiffs have essentially claimed victory. After the first week of the trial, O'Bannon attorney Michael Hausfeld said of the NCAA, “it doesn't appear to us that they're trying this case to win it at the District Court level."
Michael Carrier, a distinguished professor at Rutgers Law School who followed the trial and has read both parties' post-trial briefs, said the rhetoric speaks to the plaintiffs' frustration that old issues settled by Wilken continue to reappear.
Wilken previously said amateurism isn't a useful word in the case. She determined that a 1984 Supreme Court decision cited by the NCAA to preserve amateurism doesn't apply regarding paying players. And she ruled that whether college athletes own rights in their athletic performance depends on whether they validly transferred their rights of publicity to another party, not the scope of broadcasters' First Amendment rights.
The NCAA's post-trial brief "certainly does not read like an admission of defeat from the NCAA's perspective,” Carrier said. “The NCAA did the best job they could at poking holes in the market to try to support their justifications. But it does seem like an expansive brief by the NCAA that's eyeing an appeal.”
In their final post-trial brief, the O'Bannon plaintiffs attempted to introduce two more old television contracts into the record. Carrier said the extra documents likely reflect that the plaintiffs feel there could be an open issue on whether players' NIL rights are being sold on TV.
The big prize in the case is the plaintiffs' attempt for players to share billions of dollars of TV revenue moving forward. The plaintiffs have said contracts shown in the case explicitly or implicitly convey NIL rights. The NCAA has argued the players' NIL rights don't legally exist in TV contracts and that many broadcast agreements refer to NIL rights only for promoting games, not the live broadcasts. The NCAA noted short-form agreements it contends can't be characterized as conveying NIL rights.
On Thursday, the plaintiffs filed excerpts from a contract executed in 1999 between the SEC and Jefferson-Pilot Sports (JPS) for the 2001-02 through 2008-09 seasons. Under a provision titled “Publicity,” the contract states:
“JPS may publish the name, likeness, and voice of each person appearing in or connected with the games, biographical materials concerning such persons … for purposes of advertising or promoting any game or games telecast by JPS.”
The plaintiffs also filed excerpts from an executed contract in 2007 between the Big 12 and ESPN, ESPN Regional Television and ABC for 2008-09 through 2015-16. Under a provision titled “Name and Likeness,” the contract states:
“Conference shall provide ESPN/ABC with all rights and consents necessary or contemplated for the exercise of ESPN/ABC's Distribution rights under this Agreement, including, without limitation, all name and likeness rights of all participants, officials, and any other persons connected with each Game …”
The plaintiffs made one last attempt at clarifying their markets, a source of confusion at times for Wilken during the trial. Carrier believes this area is the NCAA's best chance to win in District Court.
The plaintiffs need Wilken to determine at least one of their two alleged harmed markets violated antitrust law: the educational market in which schools compete to recruit football and men's basketball players, or the licensing market involving the use of NILs in live TV broadcasts, rebroadcasts of games and video games. If Wilken determines that, then she moves on to the procompetitive justifications, where the burden shifts to the NCAA.
The NCAA has said the plaintiffs have not defined a legitimate market in which the NCAA's restrictions on payments financially hurt the athletes and that consumers benefit from the restrictions. The NCAA claims the plaintiffs cannot state for the first time after trial that athletes and schools could both be seen as buyers and sellers in the markets. The plaintiffs said their claim is not new, the NCAA prepared an expert to rebut it, and even if it were new, the NCAA provided implied consent to try it last month.
“Colleges sell educational services and buy athletic services, while athletes buy educational services and sell athletic services,” the plaintiffs wrote. “These dual aspects of the exchange transaction are intertwined. … The NCAA cites no economic principles requiring that one disentangle separate parts of a unified transaction in order to assess competitive effects. The buyers and sellers on both sides of the exchange are the same: the schools and their athletic recruits. In either view of the market, the NCAA exercises market power."
Both sides expect Wilken to make a judgment on the case by early August. Appeals are likely no matter who wins.