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OAKLAND, Calif. -- What do surveys really mean when the public says it doesn't want college athletes to be paid? That was the focus of Wednesday's early testimony at the Ed O'Bannon trial as the NCAA presented an expert's survey that the plaintiffs complained didn't ask the right questions.
At stake over how U.S. District Judge Claudia Wilken views the survey: Are the results used by NCAA economic expert Daniel Rubinfeld legitimate in his consumer market arguments as they relate to antitrust law? Rubinfeld will testify this week and is one of the NCAA's key witnesses in the lawsuit over whether football and men’s basketball players should be paid for use of their names, images and likenesses, otherwise known as NILs.
| Survey Question | |
| There has been some discussion of paying money to college football and basketball student-athletes in addition to providing scholarships that cover college expenses. Some people are in favor of paying money to student-athletes who are on college football or men's basketball teams. Some people are opposed to paying these student-athletes. Which of these statements comes closest to your opinion? | |
| 31% | I am in favor of paying money to student-athletes on college football and men's basketball teams in addition to covering their college expenses |
| 69% | I am opposed to paying money to student-athletes on college football and men's basketball teams in addition to covering their college expenses. |
NCAA survey expert John Dennis presented a number of findings from his October 2013 survey:
• 69 percent of the public and 61 percent of sports fans oppose paying college athletes.
• 38 percent of respondents are less likely to watch or attend games if athletes are paid $20,000; 47 percent if athletes are paid $50,000; and 53 percent if athletes are paid $200,000. The fact that four out of 10 people are less likely to watch or attend college games is potentially "a huge loss of market share," Dennis testified.
• 53 percent of the public and 62 percent of sports are less likely to watch or attend games if star players are paid more than non-stars.
The O'Bannon plaintiffs pressed Dennis hard on why he phrased the questions with words such as "paying money" to players, instead of identifying specific issues related to the trial, such as athletes' NILs and the idea of deferred compensation after players graduate. NILs refer to the right of an individual to control the commercial use of his or her identity.
Dennis said he didn't think NIL questions needed to be asked and that respondents could interpret his pay questions however they wanted. Also, Dennis said NIL-related questions could be "very complicated" with legal jargon that would be difficult for survey respondents to understand.
O'Bannon survey expert Hal Poret acknowledged the difficulties of NIL survey questions, but said the complexity of the issue is why those questions should be asked. Poret gave examples of questions that could have been asked, such as whether people favor or oppose players being paid from use of their NILs from video games, jerseys and TV broadcasts.
In one open-ended question near the start of Dennis' survey, the plaintiffs' lawyers showed that only 14 of the 2,455 respondents specifically said they heard of NILs as the concept relates to paying players. Because no distinctions were drawn in the questions over what paying players means, Poret said Rubinfeld shouldn’t have used the survey and implied the answers relate to paying players for use of their NILs.
The plaintiffs also argued that Dennis’ survey implies that the questions refer to illicit or illegitimate payments to players. More than 200 respondents indicated they thought of the issue that way.
Dennis said his survey results were consistent with others by the Gallup Poll and media outlets over the past decade. Dennis said adding more information to the questions would not have substantially changed the rules because so much of the public opposes players being paid.
O'Bannon attorney Renae Steiner said in an interview that Dennis intentionally did not tailor his survey to the case because Rubinfeld had already written his report before the NCAA commissioned Dennis' study. Rubinfeld's findings previously used surveys from media outlets that the plaintiffs say don't address the central point -- NILs.
"Rubinfeld had already found that demand would decrease because people value amateurism," Steiner said. "So they had a report, a conclusion, and they had to go in search of support. In order to do that, the survey here had to match the five surveys he did in his report. They couldn't ask the right question because then it would expose Rubinfeld as having already concluded something based on no evidence."
O'Bannon attorneys say the surveys cited by Rubinfeld are important to his report as it relates to consumer demand based on paying players. "The only empirical evidence Rubinfeld has is this survey, but it tested the wrong question," O'Bannon attorney Seth Rosenthal said.
At one point, NCAA attorney Carolyn Hoecker Luedtke tried to introduce a survey from AL.com, an Alabama-based news website, from last week that asked readers whether they would lose interest if college football players were compensated. Luedtke asked Poret if that was the type of question he would use in relation to NILs.
"No, that’s an embarrassing, junk science question," Poret responded with disdain.
Wilken soon shut down the AL.com portion of the questions without the online results being shown. Later, the NCAA entered the AL.com survey into the record.
The trial took a rare afternoon break due to Wilken’s schedule and resumes Wednesday afternoon with NCAA economic expert Lauren Stiorh on the stand.
