Ed O’Bannon v. NCAA

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Ed O’Bannon et al. vs. NCAA – The trial which could change the face of collegiate athletics

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July 12th

Plaintiffs’ attorneys – “It doesn’t appear to us that they’re trying this case to win it at the District Court level”

From CBS Sports … 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.”

… more at cbssports.com …

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July 4th

NCAA files brief in Northwestern lawsuit

From CBS Sports … The NCAA formally entered the Northwestern football player labor debate Thursday by filing an amicus brief supporting the university’s attempt to reverse a regional National Labor Relations Board decision that its players are university employees.

Briefs from various entities around the country — ranging from six members of Congress to five pro sports unions — were filed Thursday when documents were due either supporting or opposing the unionization efforts. Northwestern and the College Athletes Players Association (CAPA), which is leading the attempt for players to unionize, also filed their arguments before a national ruling by the NLRB.

On April 24, the NLRB allowed Northwestern to appeal regional director Peter Sung Ohr’s earlier ruling that the university’s football players can collectively bargain as employees. If the NLRB upholds the regional decision, the case could reach federal court.

Northwestern football players voted on April 25 whether to form a union. The ballots were impounded pending the NLRB’s review.

The NCAA, which is not a party in the case, said in its brief that the outcome of the case could have a “significant and irreversible, negative impact on the future of intercollegiate athletics and higher education in the United States.”

Northwestern argued Ohr improperly refused to apply the legal precedent set in the NLRB’s 2004 decision regarding Brown University. In that decision, the NLRB held that graduate assistants were primarily students, not employees. Instead, Northwestern said Ohr relied incorrectly on a definition of an employee and the amount of control the employer has.

“There is no evidence that Northwestern places its football student-athletes under ‘strict and exacting control’ throughout the year as found by the Regional Director,” Northwestern wrote in its brief. “All Northwestern students — not just scholarship student-athletes — are subject to conduct rules, such as policies on off-campus housing, hazing, gambling, academic dishonesty, drug and alcohol use, IT systems use, and possession or use of weapons.”

Northwestern said Ohr also did not give enough consideration to the football team’s academic success and that the relationship between the university and its players is “primarily educational, not economic.”

In its brief, CAPA said Ohr correctly held that Brown is “inapplicable in the instant case because the players’ football-related duties are unrelated to their academic studies unlike the graduate assistants whose teaching and research duties were inextricably related to their graduate degree requirements.”

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July 1st

Jon Wilner’s take  on how the O’Bannon decision may play out

From the San Jose Mercury News …

Action: The Ed O’Bannon trial concludes.
Reaction I: And now we wait …
Reaction II: And wait …
Reaction III: Judge Claudia Wilken will issue a written ruling later this summer that is not expected to be favorable for the NCAA. (Here’s a good synopsis of the trial.) The underdog role comes as no surprise to the association, which took a “tone-deaf” approach and which, one source posited, argued the case not to win in Wilken’s courtroom but to win on appeal to the Ninth Circuit or the Supreme Court. (Yes, it could all come down to the whims of a Stanford grad by the name of Anthony McLeod Kennedy.)
Reaction IV: Look for Wilken to, in some way, shape or form, lift the cap on earnings for football and men’s basketball players and allow them to receive compensation for the use of their name, image and likeness — in order words, for appearances on TV broadcasts. One option, generally speaking, is for a fund to be established by each conference, with players collecting their appearance fees at the conclusion of their playing careers.
Reaction V: The redirecting of a portion of the broadcast rights to players won’t break the bank for the power conferences or their members schools — it won’t drastically upset the economic system at the highest level of intercollegiate athletics. But the lawsuit that threatens upheaval, the Kessler case, has been transferred to Wilken. Originally filed in New Jersey by Jeffrey Kessler on behalf of Clemson’s Marvin Jenkins (and others), it seeks a free market for college football, with players receiving salaries in addition to scholarships. This, not O’Bannon, is DEAFON 1 for the status quo. It’s a long way from going to trial, and you can be assured that it will create some sleepless nights for NCAA officials.

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June 27th

Math Majors could determine the outcome of the O’Bannon trial

From ESPN … Two math majors — one from Cal Tech and the other from Princeton — are likely to determine how college football and basketball operate in the future.

The men are brilliant. They are knowledgeable. They are articulate. They are the most important witnesses in the Ed O’Bannon v. NCAA trial. And they disagree on just about every major issue.

The Cal Tech graduate is Roger Noll, a professor of economics at Stanford University who is now retired and testified for the players who seek to be compensated for the commercial uses of their names, images and likenesses. The Princeton graduate is Daniel Rubinfeld, a former professor of economics at Cal Berkeley who teaches at New York University and testified for the NCAA.

Their conflicting and contradictory testimony on the effects of the NCAA’s rules that ban any payment to college athletes will form the foundation of the decision that U.S. District Judge Claudia Wilken will issue in early August. Noll views the restraints on pay as price-fixing (zero pay) by a cartel and a violation of the nation’s antitrust laws. Rubinfeld says the benefits of the restraints outweigh any harm that they cause and the NCAA is a benign “joint venture” that preserves the amateur ideal and allows athletes to enjoy the benefits of higher education.

Noll testified for two-and-one-half days in the first week of the trial. Rubinfeld began his testimony on Thursday and will conclude on Friday, the final day of the three-week trial. The trial has already produced more than 2,800 pages of daily transcripts, and the testimony of the two economists will consume more than 1,000 pages.

It is no secret that in making her decision, Wilken must choose between the two witnesses. Both sides have invested enormous time and money into producing the testimony from these world-class economists. Noll wrote 750 pages of reports for the players’ legal team and was questioned under oath by NCAA lawyers for four days before the trial began. Rubinfeld has not yet described all that he did, but it is likely that he invested equal time and effort.

Wilken’s evaluation of the economists will not be easy. Although both have mastered their specialty of industrial economics (the behavior of firms), their language in court is peppered with jargon and nomenclature that can be baffling. The NCAA is a “standards organization” or a “cartel” or a “joint venture.” The schools in the NCAA are “firms.” The players, the coaches and the facilities are “input.” The fans are “consumers.” The games and the championships are “product” or “output.” The number and quality of the games are “demand.”

That’s just the beginning. What happens as an athlete is recruited and enrolls at a school is “upstream.” A fan’s experience is “downstream.” If the schools are selling “educational services” to students, then the schools in the NCAA are a “monopoly.” If the athletes are selling “services” to the schools, then it is a “monopsony.”

The foregoing are terms they agree on. There are others that they argue about: “wealth transfer,” “inelastic demand,” “deadweight loss,” “inefficient substitution,” the “invariance hypothesis,” the “Spearman correlation” and “human capital.” Using any one of these terms prompts the two sides to argue.

After sorting through the thicket of economic terms and concepts, Wilken is supposed to make her decision under what antitrust lawyers, without irony, call the “Rule of Reason.” She is to weigh the harm to the athletes who are unable to sell their names, images and likenesses and broadcast rights against the purported benefits of the prohibition. If she rules for the NCAA, nothing will change. If she rules for the players, everything will change.

The judge has a wide range of possible decisions. She could separate the names, images and likenesses and the broadcast rights into separate decisions. She could order immediate pay for players or rule that the money must be held in a trust fund until a player’s eligibility expires.

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June 26th

Big Ten Presidents issue statement back four-year scholarships for athletes

From CBS Sports … There’s never been much question about where the Big Ten has stood on the question of full-cost of attendance scholarships or guaranteed four-year scholarships, which Jim Delany has supported on multiple previous occasions.

But with the Pac-12 presidents recently establishing exactly where they stood as the O’Bannon trial loomed, the Big Ten’s presidents and chancellors have now followed suit with the O’Bannon trial ongoing. Each of the league’s 14 top officials signed a statement issued Tuesday afternoon, one stressing “the value of establishing a 21st century system to meet the educational needs of current and future student-athletes.”

“The best solutions rest not with the courts, but with us – presidents of the very universities that promote and respect the values of intercollegiate competition,” the statement reads. “Writing on behalf of all presidents of the Big Ten Conference, we must address the conflicts that have led us to a moment where the conversation about college sports is about compensation rather than academics.”

The meat of the presidents’ policy endorsements:

• We must guarantee the four-year scholarships that we offer. If a student-athlete is no longer able to compete, for whatever reason, there should be zero impact on our commitment as universities to deliver an undergraduate education. We want our students to graduate.

• If a student-athlete leaves for a pro career before graduating, the guarantee of a scholarship remains firm. Whether a professional career materializes, and regardless of its length, we will honor a student’s scholarship when his or her playing days are over. Again, we want students to graduate.

• We must review our rules and provide improved, consistent medical insurance for student-athletes. We have an obligation to protect their health and well-being in return for the physical demands placed upon them.

• We must do whatever it takes to ensure that student-athlete scholarships cover the full cost of a college education, as defined by the federal government. That definition is intended to cover what it actually costs to attend college.

The proposal to guarantee the scholarship of athletes who leave early is one that not even the Pac-12 cited specifically, though those presidents did express their desire to “guarantee scholarships for enough time to complete a bachelor’s degree, provided that the student remains in good academic standing.”

The full text of the Big Ten presidents’ statement is available at the Big Ten Network’s site here.

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June 21st

Did Big Ten commissioner Jim Delany’s testimony hurt the NCAA’s case?

From ESPN.com … Players’ attorney Michael Hausfeld had a long list of items he wanted Big Ten commissioner Jim Delany to address when he took the stand on the 10th day of the Ed O’Bannon v. NCAA trial.

Surprisingly, Hausfeld heard the answers he wanted before even asking Delany a question.

During Delany’s direct questioning from NCAA attorney Luis Li, Delany had offered opinions that some college athletes spend too much time participating in their sports and freshmen shouldn’t be eligible to compete so they can focus on their studies. Further, Delany had said, athletes should be given multiyear scholarships — instead of one-year grants-in-aid that can be rescinded by a coach for seemingly any reason — to help ensure they complete the work toward their academic degrees.

After nearly 2½ hours of testimony, it might have been difficult for observers in the crowded courtroom to determine whether Delany was testifying for the plaintiffs or the defense. In fact, the NCAA might have been just as well off sending a member of the Drake Group or Knight Commission to the stand. The members of those academic think tanks, which have been highly critical of the commercialization of college sports, might have provided similar answers.

Mr. Delany explained … the reforms that he wants and that haven’t happened and that require the approval of the NCAA and its members,” players attorney Bill Isaacson said after court. “[He listed] all the ways athletes are classified differently from students. They are concerned that what we are proposing will result in a different classification. What Mr. Delany was describing was the all the ways that they’re different now. Everybody knows that.”

During Li’s questioning, Delany, a former basketball player at the University of North Carolina and one of the most respected power brokers in college sports, said he believes once college basketball season ends, “we should put a lock on the gym.” Delany said he believes it would be more beneficial for athletes to spend their summers away from sports, focusing on their academics or studying abroad.

Isaacson said the fact that many college athletes now practice, compete and prepare for their sports year-round makes them different from other college students — and more like professional athletes.

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June 19th

NCAA President Mark Emmert – Clear difference between stipends and “play-for-pay”

From ESPN … NCAA president Mark Emmert supports a plan to allow the five biggest college conferences to give athletes more money to cover school costs, but draws the line at paying them beyond that for what they do on the basketball court or football field.

Testifying in a landmark antitrust lawsuit filed against his organization, Emmert said Thursday he believes there is a clear difference between the proposal to pay athletes a few thousand more dollars a year and giving them the equivalent of a salary.

“You’ve moved into realm where you’re compensating student-athletes for something other than the legitimate cost of being a student,” Emmert said about giving athletes even more money than the conferences are proposing. “You’ve now moved into pay for play.”

Under friendly questioning by an NCAA attorney, Emmert also defended the concept of amateurism, which he said has been a core principle from the time the NCAA was founded in 1905 to today. He said college athletics would not be the same if the primary focus of an athlete entering school was on getting paid for playing sports instead of getting an education.

“It’s one of the most fundamental principles of the NCAA and intercollegiate athletics,” Emmert said. “They have always seen and assumed that intercollegiate athletics is about the notion that these are members of the student body. They’re not hired employees conducting games for entertainment. They’re not a random group of folks that just come together to play sports.”

Emmert’s testimony came in a much-anticipated appearance as the NCAA tries to convince U.S. District Judge Claudia Wilken that its system of so-called amateurism is not anti-competitive and is the best model for regulating college sports.

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June 17th

Plaintiff’s Expert: Six reasons why NCAA treats football and men’s basketball players as athletes first

From USA Today … Drexel University sport management professor spent nearly 3½ hours testifying for the plaintiffs in the Ed O’Bannon class-action antitrust trial Monday, and lawyers for the NCAA spent almost as long objecting to nearly every assertion she made.

After getting overruled at virtually every turn by U.S. District Judge Claudia Wilken, an attorney for NCAA tried the next-best alternative — using cross-examination to question Ellen Staurowsky’s qualifications for offering her testimony.

What might have been most telling, though, was what the NCAA largely didn’t do — at least not on Monday.

For the most part, it did not question the facts upon which Staurowsky built her testimony.

She testified that the NCAA does not follow the mission it sets out in its own rulebook and that there are a half-dozen reasons Football Bowl Division football players and Division I men’s basketball players — “student-athletes” in the NCAA’s nomenclature — are athletes first and students second.

Staurowsky’s testimony began with Rosenthal introducing two passages from rules in the NCAA Division I Manual:

The first, from a section titled “Fundamental Policy,” says “a basic purpose” of the NCAA is to “maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body and, by so doing, retain a clear line of demarcation between intercollegiate athletics and professional sports.”

The second, from a section titled “The Principle of Amateurism,” says, in part: “Student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises.”

With that as a backdrop, and over the NCAA’s objections, Staurowsky testified about the hundreds of millions of dollars in TV money received annually by the NCAA’s five elite conferences — the Atlantic Coast, Big Ten, Big 12, Pacific-12 and Southeastern — and how those deals drive the scheduling of games and schools’ willingness in the mid-2000s to add a 12th game to the regular-season schedule.

She went on to discuss the sharp rise in football head coach and assistant coach pay, citing USA TODAY’s annual surveys of those data, and the increase in facilities spending, citing information from the SportsBusiness Journal.

She then cited and detailed, amid the NCAA’s objections, six reasons that she believes football and men’s basketball players are athletes first:

—Time demands on the athletes, for which she cited cited NCAA survey data.

—The schools’ prioritization of athletics, for which she cited NCAA survey data, including one survey in which 16% of FBS football players and 15% of Division I men’s basketball players said they’d probably or definitely choose their current major if they were not athletes.

—The manner in which scholarships are handled, including a Chronicle of Higher Education survey that showed few schools are widely taking advantage of an NCAA rules change that allows them to offer multiyear scholarships.

—Admissions standards, including an Atlanta Journal-Constitution report on the hundreds of points of differences in the standardized test scores among football and men’s basketball players at elite-conference schools and those of their classmates.

—Graduation rates that, by both federal and NCAA metrics, are lower for football and men’s basketball players than for overall student populations and overall athlete populations.

—Clustering in majors by football and men’s basketball players. Staurowsky in 2008, while teaching at Ithaca College, led a group of her students in assisting USA TODAY Sports with gathering data for a report on the degree to which men’s and women’s major-college athletes cluster in majors at rates significantly disproportionate to students as a whole at their respective schools.

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June 14th

Basketball players could earn a million dollars while in college under economist’s model

From ESPN … Football players at big schools could make several hundred thousand dollars in their college careers if they were paid a portion of the broadcast rights to games similar to what NFL players now get, under a model suggested by a sports economist.

Basketball players would do even better, with some earning more than $1 million over four years if schools split their broadcast revenues equally with athletes. That figure could rise even higher as billions of dollars in new television contracts for the rights to games are negotiated.

University of San Francisco economist Daniel Rascher testified Friday that the figures are at the high end of his model because they come close to the 55 percent of broadcast revenue the NFL shares with its players. He pointed out on the witness stand that he did other models that would give players as little as 10 percent of revenues if they were allowed to share in broadcast rights.

Rascher’s testimony came under cross examination in a landmark antitrust trial brought in federal court against the NCAA by former UCLA basketball star Ed O’Bannon and 19 others. They are seeking an injunction that would allow players to band together and sell the rights to their names, images and likenesses (NILs), with the money likely being put in a trust fund and given to them after they leave college.

Just how much that money would be would likely be the subject of long negotiations and other court fights. The NCAA has already indicated it will take the take the issue all the way to the Supreme Court if it loses in a bench trial before U.S. District Judge Claudia Wilken, saying current model of “amateurism” is the best for both the football and Division I basketball players as well as the thousands of other athletes in other college sports.

On a trial day dominated by talk about big money, Rascher spent nearly five hours on the stand laying out — and then defending — his studies on behalf of the plaintiffs. Most of them centered on how much money is being made in college sports and Rascher’s contention that colleges would not be hurt if they used some of the money now spent on facilities and coach’s salaries to pay athletes.

“We’ve seen the NCAA change its rules over decades on how much they should be paying athletes,” he said. “The fanaticism and the demand continue to rise during that time period.”

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June 13th

CBS Executive – “I have substantial concern (paying athletes) would change the fabric of the sport”

From ESPN … A former president of CBS Sports says he fears the popularity of college sports would suffer if athletes receive money to play because fans enjoy the concept of young people playing sports for the love of the game.

Testifying in a landmark antitrust case brought against the NCAA, Neal Pilson said giving athletes money for the use of their images on television broadcasts might also set off a “land rush” among conferences and schools to spend whatever is needed to attract the best football and basketball players.

“I have a substantial concern it would change the fabric of the sport,” Pilson said. “A significant number of people in the public see one concept of college sports being that young people are playing for the joy of the game would convert into a sense that, well, this is just another professional sport.”

Pilson, who said he spent 20 years trying to figure out what sports the American public wanted to watch while at CBS, said he believes fans have an appreciation of college sports that are rooted in the fact that athletes compete on behalf of long-established schools and do so without demanding anything more than scholarships and room and board.

Paying them for the use of their names and images as sought by the plaintiffs in the trial, he said, would change the way college sports are perceived by the general public.

Under cross examination, though, Pilson acknowledged that he wasn’t sure how much money athletes would have to be paid to negatively influence fans, or if paying them only after they were done with school would be an issue. Still, he said, the idea of paying players could be a real game changer.

“If the Boston College basketball team will share revenues from television and, lo and behold, each member of the Boston College basketball team is entitled to $200,000, I just think that’s a negative,” Pilson said. “I think that’s a problem for the public.”

Pilson’s testimony came on behalf of the NCAA on a day when dueling television experts took the stand for both sides on the fourth day of the trial. Plaintiffs led by former UCLA basketball star Ed O’Bannon are seeking an injunction that would allow players to be paid for the use of their names, images and likenesses (NILs) in broadcasts and video games.

The trial comes as billions of dollars in new revenues are being generated in television contracts, and is part of an assault on so-called “amateurism” rules that has prompted the five biggest college conferences to propose new and additional benefits to players. The NCAA has said it will go along with those changes, but balks at giving players any money for their NILs, even if they are put in a trust fund until after the athletes graduate.

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June 12th

Day Four: Broadcast contracts do include the rights to use names, images, and likenesses

From Sports Illustrated … Day four of the O’Bannon v. NCAA trial began about television contracts. The plaintiffs called Ed Desser, a sports TV consultant who has negotiated “hundreds” of deals between teams or leagues and networks, as a witness.

Regarding one of the key issues of the entire case, Desser stated emphatically that broadcasters’ contracts do include the rights to the use of players’ names, images and likenesses. The plaintiffs are seeking the right for student-athletes to negotiate a license for use of their NILs. “No television network wants to show an empty arena or blur out the players taking part in it,” Desser said.

The plaintiffs entered as exhibits a series of actual contracts — between the Big 12 and Fox, between the BCS and Fox (2007-11) and two old CBS deals for the NCAA tournament — that are normally kept confidential. The contract between the Big 12 and Fox contained specific language pertaining to NILs. “The conference shall be solely responsible for securing all clearances with respect to all [participants] connected with each event, and such clearances shall include Fox having … all name and likeness rights of all participants …”

This seems particularly damning to the NCAA, which contends that the players hold no such rights.

Similarly, Seth Rosenthal, an attorney for the plaintiffs, asked Desser multiple times whether the contracts include “any mention of access to facilities” hosting the events. Desser said they did not. The NCAA has contended that broadcasters pay not for the rights to show games, but rather for exclusive access to the arenas and stadiums where games are being played.

Some rare courtroom drama occurred when the plaintiffs tried to introduce the NCAA’s current contract with CBS and Turner for the men’s basketball tournament. CBS had filed a motion seeking to keep the contents sealed, and when the moment arrived, an attorney for CBS popped up from the back of room to approach the bench. He said the parties had reached a settlement, so Desser was allowed to read from and testify about the contract, but its contents were not revealed on the TV screens pointed at the gallery. Desser said the deal includes language confirming that the networks’ use of images “doesn’t violate any statutes of the rights of participants.”

“Is there anything in the contract that leads CBS and Turner to believe they didn’t have the rights of the participants in the game?” Rosenthal asked. Desser said no.

On cross-examination by NCAA attorney Kelly Klaus, Desser agreed that in 37 years of negotiating contracts, he could not recall an instance when a broadcaster asked about permission for use of the participants’ NIL rights. The NCAA’s counter-strategy appeared to hone in on several technicalities. For one, Klaus showed a form student-athletes sign granting their NIL rights for use in promotional materials of various NCAA events — noting that no mention is made of actual game broadcasts. So, theoretically, the NCAA couldn’t transfer those rights to broadcasters. Klaus also insinuated that the Big 12’s NIL clause was not “typical” of other college contracts, as Desser suggested. “Sometimes those specific string of words do not appear in a contract,” Desser said.

Klaus tried to draw a distinction between “securing” players’ NIL rights and “transferring” those rights to another party. All in all, however, Desser’s testimony seemed to pretty clearly bolster the plaintiffs’ case.

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June 11th

Economist – NCAA a “cartel”

From ESPN … Economist Roger Noll doesn’t have the name recognition of former UCLA basketball star Ed O’Bannon, but he might be just as important to the future of college athletics. Noll spent an entire day testifying Tuesday in the O’Bannon-NCAA trial about paying college athletes for use of their names, likenesses and images.

Called as a witness by the O’Bannon legal team Monday, Noll, a Stanford emeritus professor who produced 750 pages of analysis on the topic for the plaintiffs, picked up again Tuesday under questioning by lead plaintiffs attorney Michael Hausfeld. Noll focused his testimony on trying to show that the NCAA’s restraint on athletes receiving compensation harms competition in various ways.

His major points:

• Coaches are getting money that otherwise would go to players.

• Power conferences such as the Big 12, Big Ten and SEC want to do more for the athletes than the NCAA rulebook permits.

• College sports in no way are an “avocation,” or hobby, for athletes.

• Dispensing with amateurism in major entertainment sports helps, not hurts, an enterprise.

After court, Hausfeld said Noll was on point all day.

“He focused on the basics,” Hausfeld said. “The NCAA is known by all economists as a cartel, which creates restraints and harm. And the victims of that harm are athletes.” Noll testified for about three hours Tuesday before Singla began a cross-examination that will continue Wednesday.

Singla attempted to focus Noll narrowly on the issue of athletes’ names, images and likenesses, not, he said, “what is commonly known as pay for play.” The NCAA contends that athletes have no rights to sell as related to television broadcasts and that there is no precedent in the law in which team sport athletes explicitly hand over such rights to sports entities that then sell access to their games to media companies. Singla said universities own the games because they own the stadiums where the games are played, so the athletes have nothing to sell. In the NCAA’s eyes, what TV broadcasters pay for is access to the stadiums, not the games or the performances of the athletes.

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June 9th

Ed O’Bannon testifies to open lawsuit against NCAA

From ESPN.com … The battle to give top football and basketball players a cut of the billions of dollars flowing into college athletics began in earnest Monday with former UCLA basketball star Ed O’Bannon taking the stand in federal court to describe how he spent long hours working on his game and as few as possible on his grades.

The lead plaintiff in a landmark antitrust suit against the NCAA said his goal at UCLA wasn’t to get a degree but to get two years of college experience before being drafted into the NBA.

“I was an athlete masquerading as a student,” O’Bannon said. “I was there strictly to play basketball. I did basically the minimum to make sure I kept my eligibility academically so I could continue to play.”

O’Bannon portrayed himself as a dedicated athlete who would stay after games to work on his shot if he played poorly but an indifferent student at best. His job at UCLA, he said, was to play basketball, which took up so much time that just making it to class a few hours a day was difficult.

O’Bannon, who led UCLA to a national championship in 1995, said he spent 40 to 45 hours a week either preparing for games or playing them and only about 12 hours a week on his studies. He changed his major from communications to U.S. history after an academic adviser suggested it would be the easiest fit for his basketball schedule.

“There were classes I took that were not easy classes but they fit my basketball schedule so I could make it to basketball practice,” O’Bannon said.

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NCAA settles EA lawsuit

From CBSSports.com … As the Ed O’Bannon trial started Monday, the NCAA announced it reached a settlement with plaintiffs over football and basketball video games produced by Electronic Arts.

The NCAA said the settlement will award $20 million to various Division I football and men’s basketball players who attended certain universities during the years the games were sold. The settlement, pending approval from a judge, would end the litigation brought by former Arizona State and Nebraska quarterback Sam Keller over the use of college athletes’ names, images and likenesses in video games. The case had been scheduled for trial in March 2015.

The NCAA’s settlement means some current college athletes will likely receive money from the fund. And it brings the total sum in video-game settlement money to $60 million. The settlement doesn’t impact the O’Bannon antitrust case, which attempted to end the NCAA’s rules prohibiting college athletes from being paid off their names, images and likenesses.

“Consistent with the terms of a court-approved settlement, the NCAA will allow a blanket eligibility waiver for any currently enrolled student-athletes who receive funds connected with the settlement,” NCAA chief legal officer Donald Remy said in a statement. “In no event do we consider this settlement pay for athletics performance.”

Previously, EA and Collegiate Licensing Company settled their claims with video-game plaintiffs for $40 million. That settlement is pending court approval.

“With the games no longer in production and the plaintiffs settling their claims with EA and the Collegiate Licensing Company, the NCAA viewed a settlement now as an appropriate opportunity to provide complete closure to the video game plaintiffs,” Remy said.

An NCAA statement said the “complete details of the settlement remain to be finalized.” An NCAA attorney also told U.S. District Judge Claudia Wilken that the NCAA has reached preliminary agreements with EA and CLC over the NCAA’s lawsuit in Georgia state court. The NCAA had accused the companies of not protecting the association in their settlement with video-game plaintiffs.

Remy said in a statement that the “unique” video game settlement doesn’t impact the NCAA’s belief that it operates its collegiate model lawfully.

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June 8th

O’Bannon v. NCAA – A Primer

On Monday, the long-awaited (five years) trial of Ed O’Bannon against the NCAA gets underway in Oakland, California. The trial and its implications will almost certainly have wide-ranging and long-lasting effects upon college sports.

An Introduction

From ESPN … After nearly five years of maneuvers and machinations that would baffle a law professor, former UCLA star Ed O’Bannon will walk into a federal courtroom Monday as the star witness in a trial that will decide whether the NCAA must pay college athletes for its use of their likenesses in television broadcasts, video games and other consumer products.

The trial, in Oakland, Calif., comes after more than two dozen lawyers filed some 1,300 related court documents since 2009. It comes after numerous NCAA attempts to terminate O’Bannon’s quest, all of them unsuccessful. It comes after the case has been consolidated, de-consolidated and partially settled.

And, most important, it comes at a critical time in the history of college sports, when the power conferences take in more than a billion dollars in a single year, when numerous head coaches are paid $7 million per year, when assistant coaches can make $800,000, and when universities are spending hundreds of millions of dollars on stadiums and training facilities.

Former athletes like O’Bannon and many current athletes are no longer willing to settle for a full scholarship and the glory of the games; they are asking for their share, and they’re doing so aggressively. In addition to O’Bannon’s lawsuit, 24 other legal actions are pending against the NCAA, all of them seeking a sharing of wealth in one form or another. In the most dramatic of the lawsuits, often referred to as the “Kessler case,” current players are seeking what was once unthinkable — an injunction that would eliminate the NCAA’s bar against paying salaries and force big-time football and basketball schools to pay players in addition to granting scholarships.

While fighting to defend their organization and its core ideals of the student-athlete and amateurism, NCAA officials also are preparing to intervene in a historic proceeding before the National Labor Relations Board in Washington, D.C. The five-member board is reviewing a decision made in Chicago that Northwestern University football players are employees and can form a union.

As if the mass of litigation and the unprecedented labor activism among college athletes were not enough, the NCAA is also the target of what may be a major reform effort in the U.S. Congress led by bipartisan group in the House of Representatives.

“O’Bannon represents a watershed moment for the NCAA,” said Northeastern University School of Law professor Roger Abrams. “When combined with the Northwestern football team unionization effort, the case raises the question whether the NCAA must totally re-conceptualize its approach to regulating college athletics.”

What is the case all about?

From Kevin Trahan at SBNation … The O’Bannon case is a class-action antitrust lawsuit seeking an injunction. It claims the NCAA has violated antitrust law by not allowing athletes to receive money from their likeness, particularly in television deals. You’ll hear three of those words a lot: antitrust, injunction, and likeness. Here’s what they all mean in terms of this case.

• Antitrust: The O’Bannon plaintiffs are alleging that the NCAA’s members are being anti-competitive by keeping all of their television revenues to themselves and not giving anything to the players, whom they claim are the primary revenue-generators. Since college sports are the only path to a pro career for athletes in many sports, the NCAA has no competition, and thus players have no leverage.

• Injunction: An injunction means that a party has to stop doing what it’s doing. In this case, the NCAA would have to stop keeping revenue from the athletes if it loses.

• Likeness: An athlete’s likeness is a reference to the use of his or her image. The O’Bannon suit alleges that it is illegal for the NCAA to use athletes’ images for profit — mostly by broadcasting games — without sharing that profit.

The O’Bannon suit is basically a lawsuit against the NCAA that challenges its right to sell broadcasts without paying players anything. If the O’Bannon plaintiffs succeed in getting an injunction, then the NCAA will be forced to pay the players some sort of broadcast rights.

However, the case hasn’t always taken this form. Initially, the O’Bannon plaintiffs were seeking damages and an injunction, but the damages portion was not certified by Judge Claudia Wilken, meaning the NCAA won’t have to pay past players for the use of their likeness. The plaintiffs were going to receive individual damages, but they decided not to, so they could have a bench trial decided by Wilken instead of a jury trial.

What happens if the players win?

The simple answer is that the players will receive a cut of the television revenue, but the process is much more complicated. The NCAA, conferences, and schools all have lucrative rights deals, and the players would be given a portion of money from those pools.

It’s impossible to say the sum, but the NCAA alone made over $700 million off of just television revenue in 2012-13, so it would certainly be substantial. The O’Bannon plaintiffs are asking for up to half of that revenue, but it won’t necessarily get all of that appropriated to the players. The NCAA could potentially settle for a much more reasonable number and smaller changes to its rules, but it’s indicated it isn’t going to do that.

The plaintiffs are asking for group licensing for players. Rather than each player getting paid on his or her market worth, the players would split revenues evenly, like the media rights deals in the professional leagues. They would likely do so through some sort of union.

As far as the effects on college sports, there are wildly different perspectives. Some have said college sports would disappear, though that certainly won’t happen, because successful industries don’t just disappear. More likely, there would be changes to how non-revenue sports operate and a more open market for players.

Following the trial

As the trial progresses (it is expected to last three weeks), there will be updates under this thread here at CU at the Game. If you would like more immediate updates, there are a number of national reporters who will be covering the trial, and all have twitter accounts from which there will be regular updates:

Andy Staples, Sports Illustrated (@Andy_Staples)

Jon Solomon, CBS Sports (@JonSolomonCBS)

Steve Berkowitz, USA Today (@ByBerkowitz)

Rachel Bachman, The Wall Street Journal (@Bachscore)

John Infante, The Bylaw Blog (@john_infante)

Ben Strauss, The New York Times (@bstrauss1)

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Tags: Ed O'Bannon
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