At Midpoint of O’Bannon Trial, NCAA Struggles to Make Its Case

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Mark Emmert, the association’s leader, offered testimony on Thursday suggesting that sports and academics go hand in hand and that intercollegiate athletics strengthen the college experience for students who play sports as well as those who don’t.
June 20, 2014

Midway through a federal antitrust trial that could reshape the future of college sports, two questions are on the minds of many observers: Is the National Collegiate Athletic Association’s amateur model in jeopardy? And how might the association’s remaining witnesses help bolster its case?

The plaintiffs, including Ed O’Bannon, a former UCLA basketball star, say the association has unfairly restricted them from earning a share of the vast television revenue in college sports. The NCAA has vigorously defended its system, arguing that giving athletes a cut of the licensing money would threaten competitive balance, turn away fans, and harm the education values it holds dear.

A lot could still happen in the trial’s final six days, when a number of the NCAA’s key witnesses will be called. Mark Emmert, the association’s leader, offered testimony on Thursday suggesting that sports and academics go hand in hand and that intercollegiate athletics strengthen the college experience for students who play sports as well as those who don’t.

Lawyers for the plaintiffs attempted to show how the association’s amateur rules have shifted over time, increasingly benefiting the colleges but not the players, and that Mr. Emmert had done little to curtail commercialization during his tenure as president. Another high-profile leader, James E. Delany, commissioner of the Big Ten Conference, is expected to take the stand on Friday.

Over the first week and a half of testimony, the plaintiffs have poked holes in the NCAA’s education defense, offering up a handful of former athletes who said they had spent more than 40 hours a week on their sport, had been directed into majors that suited their basketball or football schedules but that they were not interested in, and had been generally disconnected from the campus.

The NCAA has tried to rebut those claims, suggesting that the players had had meaningful college experiences that went beyond athletics. But some legal observers say the association has had a difficult time making that case.

"The economic enterprise that the NCAA has presided over has become so professionalized that it’s very difficult for the NCAA to argue that this is about students engaging in extracurricular activities or that its collegiate model is terribly unique and needs to be preserved," said Brian L. Porto, a law professor at Vermont Law School who wrote a book about previous antitrust cases involving the NCAA.

Contracts and Rights

Lawyers for the plaintiffs have also chipped away at the NCAA’s contention that there is no market for players to license their images. On Wednesday the chief legal officer at Electronic Arts testified for the plaintiffs that a market does exist for players’ names and likenesses among video-game manufacturers. Last week the plaintiffs presented documents showing that television networks appeared to obtain the rights to athletes’ names and likenesses for use during live sporting events.

The NCAA disputed the meaning of that language, which appeared in a television contract between the Big 12 Conference and Fox. The association has denied that it must acquire the name and image rights of athletes because the players don’t legally have those rights anyway.

In one of the trial’s more memorable moments, a witness for the NCAA, Neal H. Pilson, a former president of CBS Sports, described the University of Alabama’s football program as a "pro team," saying that its fans would support the Crimson Tide whether or not its players were paid.

His comments contradicted two important NCAA arguments in this case: that big-time college athletes are amateurs—a point Mr. Emmert emphasized repeatedly on Thursday—and that paying them a share of licensing revenue would make the games less popular.

The NCAA has often invoked "amateurism" to defend itself in federal lawsuits. But the judge in this case, Claudia Wilken of the U.S. District Court in Oakland, Calif., has said that such a defense does not apply here.

That didn’t stop Mr. Emmert from referring to the concept multiple times on Thursday, using it to describe the core framework of the association that has been in place for more than 100 years.

He argued that an athletic scholarship is not a form of compensation, and voiced no support for a proposal that would allow athletes to receive deferred compensation for the commercial use of their images, saying it was inconsistent with amateurism. "It’s pay for playing," he said, "regardless of whether it's paid today or paid tomorrow."

He stressed the need to keep players free from commercial exploitation. "You don’t want to have amateur student-athletes in a situation where they are pitching for products," he said.

Positioning athletes next to a commercial product for advertising purposes is expressly against the rules, Mr. Emmert testified. But when a plaintiffs’ lawyer showed him photographs of athletes at postgame news conferences with backdrops that had commercial sponsors’ logos, the NCAA leader admitted that he wasn’t always so sure about the lines.

"That’s certainly not where I would have the rules be drawn," he said.

The Education Business

Earlier this week, another NCAA witness, Christine Plonsky, women’s athletic director at the University of Texas at Austin, testified about the importance of integrating academics and athletics, describing how the Longhorns’ athletics department gives the university some $9-million a year for academic purposes from its roughly $166-million budget.

As Ms. Plonsky described it, Texas is a model for how to make education a priority and succeed in sports. The university is not known for recruiting as many academically underprepared students as some of its rivals are. And Ms. Plonsky, who has served as a national leader on issues of student welfare, described herself and her department as being in the education business. (The university’s graduation rate for football players—56 percent in the NCAA’s most recently published report—did not exactly help that case.)

But with Ms. Plonsky on the stand, the plaintiffs’ lawyers were able to introduce emails that could hurt the association’s case. One set of messages involved an NCAA committee on commercialization on which Ms. Plonsky served.

The committee, formed in 2007, invited such sponsors as Cingular Wireless, State Farm, and ESPN to weigh in on the evolving commercial market. Representatives from each company said they were interested in increasing their access to players.

According to the minutes of a committee meeting, Myles Brand, then the NCAA’s president, questioned where the line was with athlete endorsements. "We cannot exploit individual athletes," he said, "but it’s not clear what exploitation is."

In one email, Ms. Plonsky acknowledged the market for students to trade on their images and likenesses: "What’s to prevent all players from suing us to get a piece of every broadcast-rights fee," she asked, "since clearly we use their names and images in those telecasts?"

In another email, a former faculty athletics representative at the University of Iowa, Elizabeth M. Altmaier, who worked with Ms. Plonsky on the NCAA’s commercialism committee, suggested that colleges loosen the rules on paying athletes for their images.

Graham B. Spanier, then president of Pennsylvania State University, strongly objected to that idea, according to an email he sent David Berst, a top NCAA official. As the committee prepared a report on its findings, Mr. Spanier urged the NCAA to avoid including the idea.

"I wouldn’t put this in the report at all," Mr. Spanier wrote, "not even a hint of the possibility."

Game Over?

So how vulnerable is the NCAA’s amateur system? While one observer declared "game over" for the defendants, some legal experts were more cautious. They pointed out that antitrust cases are among the most challenging to understand, and they hesitated to pick a winner before all the evidence had been presented.

The NCAA, they said, still has plenty of time to build its case, with several key witnesses yet to testify. After Mr. Emmert finishes his testimony, on Friday, Mr. Delany, the Big Ten commissioner, is set to answer questions.

He is one of the most ardent defenders of amateurism, at one point predicting that, if colleges were required to pay players a share of licensing revenue, many athletic departments would leave the NCAA’s Division I for Division III. (Mr. Emmert made the same argument on Thursday, adding that such a change would also lead to the elimination of teams.)

In the coming days, the association is also expected to call two other top conference officials, at least one economics expert, and a researcher who has studied athletes’ graduation rates.

Whatever the outcome of the case, legal observers say, the NCAA appears to be readying for an appeal. Many times over the past two weeks, the association’s lawyers have raised objections to statements by the plaintiffs.

The judge has overruled the vast majority of those objections, but the NCAA has shown no sign of backing down.