“The litigation, that will take care of itself.”

So the media purports to be surprised at how the tactics of the NCAA’s lawyers in O’Bannon backfired yesterday.  Here’s how ESPN’s legal eagle put it:

The NCAA’s plan for Tuesday in the Ed O’Bannon trial was to give Judge Claudia Wilken a detailed look at an ideal combination of athletics and academics at the University of Texas. The plan also included finishing an aggressive attack on the players’ expert witness, who said college football and men’s basketball were no longer amateur sports and had become professional.

It was a perfectly good plan. Had it worked, it could have provided powerful support for the NCAA’s claims that a ban on player pay helps integrate athletes into the academic community and that it maintains the organization’s ideal of amateurism.

But as Christine Plonsky, the women’s director of athletics at Texas, described in the loftiest of terms how Texas connects its “student-athletes” to the values of higher education, she opened the door to a cross examination on her work on NCAA committees that considered the idea of allowing payments to players as a realistic possibility.

Paying players is not something the NCAA wants to recognize at any level of possibility, much less get the word out that it actually had been considered by top NCAA leaders in a task force that existed for four years. The organization has been trying to say that paying players is unthinkable; after Tuesday, the judge now knows NCAA leaders had actually been thinking about that very thing.

Oops!

The thing is, that’s what comes of making the argument that you can be a little bit pregnant.  You’ve got a significant part of the NCAA membership pushing for a player stipend – just a little taste, you know – at the same time the NCAA is trying to argue with a straight face that college players shouldn’t receive any compensation at all for their participation in sports beyond a scholarship.  And that disconnect is at the heart of what makes O’Bannon a losing proposition for the schools and the NCAA.

If it wasn’t Christine Plonsky whom the plaintiffs’ lawyers used as a foil, it would be somebody else.  Like Jim Delany or Mike Slive, for example.

“The litigation, that will take care of itself,” Slive said. “But in the area that we have the ability to act, we are acting. And we are acting on the basis that the student-athlete comes first. Maybe that hasn’t been the philosophy over the last 20 or 30 years, but it is our philosophy today.”

Except it’s clear they don’t know where to draw the line – just that a line needs to be drawn somewhere.  Because.

If the athletes deserve more benefits, at what point does anyone consider them professionalized?

“I don’t know how you viewed yourself, but when I was in college, I knew how I viewed myself,” Delany said. “I played basketball since I was eight years old. I viewed myself as an athlete. There’s nothing wrong with a person seeing himself as an athlete …

“That’s not inconsistent with being a full-time student and getting a degree …

“If you’re a dramatic arts major, do you view yourself as an actress or do you view yourself as a student? If I’m a painter, are you a painter or a student?”

That’s really the question of the times: Whether the tradeoff is even possible anymore at the highest levels — integrating that free athletic scholarship into a legitimate educational experience.

Delany asked the same question a different way: “When did it change?”

Probably for good about the same time you saw real value in becoming the director of programming for an athletic conference, Jimbo.

The easy answer to his initial question is money, which has increased exponentially in the last couple of decades, mostly as a result of football TV contracts. One example: the 10 commissioners of the NCAA’s Football Bowl Subdivision met Tuesday afternoon to discuss the College Football Playoff. For the right to televise the postseason tournament, ESPN will pay $7.2 billion over 12 years – and the vast majority of that will be divided among the Power Five conferences. That cash has fueled, among other things, an explosion in coaches’ and administrators’ salaries. Meanwhile, the players continue to receive scholarships.

This is why the NCAA’s lawyers looked dumb yesterday.  It’s not their fault.  It’s the hand they’ve been dealt by idiots who should have known better.

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19 Comments

Filed under The NCAA

19 responses to ““The litigation, that will take care of itself.”

  1. Mayor

    “It’s the hand they’ve been dealt by idiots…” Yessiree, Senator. The NCAA leadership has screwed this all up and now expect the lawyers to save them. Perry Mason couldn’t win this case for the NCAA.

  2. WarD Eagle

    While all of this is interesting, and ultimately part and parcel to the downfall of higher ed, how do these discussions stand in light of DIII?

  3. Gravidy

    Senator, can you help my non-legally-trained self understand the basic mechanics of this sort of trial, please? As I understand it, there is no jury, so the sole arbiter is the judge. Not only does the judge ultimately decide the case, she also decides what evidence is admissible and what lines of questioning and/or objections are allowable. Is that correct? If so, that seems rather odd to me. In a jury trial, the judge’s job is, ostensibly, to make sure the jury is fed a steady diet of fairly obtained evidence and fairly argued testimony. But in cases such as this one, the judge has already seen all of the evidence. Who is she protecting by excluding evidence and disallowing questions which she deems unfair?

    • She hasn’t seen all the evidence yet.

      • Gravidy

        Is she not deciding what evidence is admissible as the trial goes merrily along? If she is, I assume that is because she has already seen it or will examine it before she determines if it is admissible. Either way, she is determining the admissibility of evidence in a trial where she is the sole arbiter. She is protecting herself from inadmissible evidence. She is trusting herself to un-see the inadmissible stuff she’s seen and make a good verdict. Where am I wrong in this string of assumptions? I’m not trying to be argumentative. I’m really trying to understand how these trials work in general.

        • The judge is the determiner of admissibility regardless of who the trier of fact is.

          And, again, she hasn’t seen all the evidence yet. That’s what the trial is for.

          • Gravidy

            So my assumptions are correct, then? I just think having the determiner of admissibility and the trier of fact be the same person is an inherent conflict of interest which has the very real possibility of becoming a fox-in-charge-of-the-henhouse situation. YMMV, of course, and I’m guessing it does.

          • Gravidy

            Let me go at this another way. What determines if a trial has a jury or not? How did this trial end up in this format?

            • Lrgk9

              That’s a good question and the real answer is long. However, in a nutshell it’s a Civil not a Criminal action and the parties consented to a Bench Trial.

              • Gravidy

                Thanks. I wonder what both parties saw as their advantage in having a bench trial.

                • Gravidy

                  Ahh…I see that the NCAA actually wanted a jury trial. This is from an ESPN article on the judge:

                  “Months ago, she refused the NCAA’s request to make this a jury trial. She alone will decide the most important NCAA lawsuit ever.”

                  So not only is the she the determiner of admissibility and the trier of fact all rolled into one person. She is also the decider of who gets to be the determiner and the trier, and she chose herself.

                  Wow, the more I learn about this system, the more my trust in it grows (sarcasm font).

            • You’re getting out of the pro bono area and into billable hours Gravidy. ;-)

              • Gravidy

                Hey, we’re all friends, here. I’m an engineer. Ya need me to do any physics problems for ya? :-)

                • Too late! But I could have used you my soph and Jr. year. My second class (and final class) was taught by a Dr. Scott. He was from England. Man was he a hard case.

  4. Dog in Fla

    “If I’m a painter, are you a painter or a student?”

    That’s rhetorical because Delany didn’t come to paint, he came to do Four Corners

  5. Dog in Fla

    “The litigation, that will take care of itself.”

    Things you say when a case is locked into a nose-dive

  6. 81Dog

    That light at the end of the NCAA’s tunnel? It’s a train.

    The Titanic’s designers were sure it was unsinkable, too. Right up to the point where it rammed the iceberg. I hope Emmert has a quality band that will play hymns while the water rises.