But looking back is important. Not just back to what the plaintiffs managed to introduce during Week 1 of a proceeding set for no more than three weeks, but back to what U.S. District Judge Claudia Wilken wrote in April when she basically set the stage for the trial.
At that time, while largely denying each side’s motion for summary judgment — a request for victory without a trial — Wilken also specifically addressed some of what the sides would need to do to make their cases when they went head-to-head in her courtroom. Part of that applied to the plaintiffs, and part applied to both sides. But her starkest directives were made toward the NCAA, and that’s where the action is likely to be as it builds its defense after the plaintiffs on Monday finish with one witness, recent Vanderbilt football player Chase Garnham, and call another, Drexel sports management professor Ellen Staurowsky.
NCAA rules say that schools cannot provide — and athletes cannot receive — more than a scholarship basically comprising the value of tuition, room, board, books and mandatory fees. The plaintiffs’ lawyers say that’s illegal because, absent the NCAA’s restraints, Bowl Subdivision football and Division I men’s basketball players would be able to get more from schools and/or other business sources for the use of their names, images and likenesses in live television broadcasts, rebroadcasts of games, video games and other forms of marketing.
And the plaintiffs — led by O’Bannon, the former UCLA basketball player — are seeking an injunction that basically would prohibit the NCAA from limiting what football and men’s basketball players can receive.
However, under antitrust law, the NCAA might still be able to have a system that harms the players by limiting the ways colleges can compete for them. But it must show that the restraint enhances competition among the schools — and the plaintiffs must be unable to show that any of the NCAA’s legitimate competitive goals can be achieved in a substantially less restrictive way. (The NCAA also has argued that prior court rulings say the plaintiffs also must show any such less-restrictive alternatives can be put in place “without significantly increased cost.”)
The NCAA has offered a series of justifications for its limits on what athletes can receive, and during the trial’s first week, the plaintiffs hammered at them.
For instance, the NCAA says the limits make college football and men’s basketball distinct from pro sports, and that the limits help keep them more competitively balanced within the NCAA and more popular.
This was one of the areas where Wilken spoke to the NCAA in her April ruling, saying that for the NCAA to “prevail on this issue at trial … (it) will have to present evidence that the challenged restraint promotes a level of competitive balance that (1) contributes to consumer demand for Division I football and basketball and (2) could not be achieved through less restrictive means.”
The plaintiffs last week offered expert witness testimony that the NCAA’s current version of amateurism is irrelevant to fan interest, pointing out, as an example, that interest in the Olympics has not been affected — and perhaps even enhanced — by allowing participants in the Games to be paid as professionals.
In addition, the plaintiffs elicited from NCAA TV and fan-interest expert Neal Pilson — a former president of CBS Sports — that while he would be troubled by football or men’s basketball players getting paid $1 million, the idea of those players getting $5,000 wouldn’t trouble him. “That’s a pretty good range,” Pilson said during cross-examination.
Pilson’s testimony also led to the plaintiffs being able to enter into the trial record an e-mail from former NCAA vice president Wally Renfro to Emmert in October 2010 in which Renfro characterized public perception of the NCAA by saying: “There is a general sense that intercollegiate athletics is as thoroughly commercialized as professional sports.”
Another of the NCAA’s justifications that received particular attention from Wilken in April was its contention that the limits of what athletes can receive promotes the integration of athletics and education. In her April ruling, Wilken wrote that in order to prove this at trial, the NCAA “must present evidence to show that (1) the ban on student-athlete compensation actually contributes to the integration of education and athletics and (2) the integration of education and athletics enhances competition” among the schools for football and men’s basketball players.
The latter requirement may be difficult for the NCAA, and it’s job in this area generally could be made tougher Monday when Garnham resumes his testimony and the plaintiffs bring Staurowsky to the stand.
Garnham — like other named plaintiffs in the case who testified last week, O’Bannon and former Alabama football player Tyrone Prothro — testified about the time demands of playing a major-college sport and the impact those demands had on his academic career. And he may elaborate further Monday, although it is likely that the NCAA — as it did with O’Bannon and Prothro — will seek to have him also talk about the benefits he got from Vanderbilt, from which he graduated in December.
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. Her testimony here is likely to cover a variety of academic matters.
But the NCAA has said it will be calling as a witness University of South Carolina president Harris Pastides, a member of the association’s executive committee — its top rules-making panel of university CEOs — as well as its Division I board of directors and that his testimony will include “the role of academics and athletics” at South Carolina.
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