I think it’s safe to say that things didn’t go all so well for the NCAA at yesterday’s O’Bannon hearing. For one thing, the parties are finally going to trial. For another, the judge doesn’t sound like she’s buying a lot of what the NCAA is selling.
During the course of Thursday’s hearing, Wilken closely questioned the NCAA’s lead outside attorney, Glenn Pomerantz, about the association’s contention that the First Amendment and various case law protect live television broadcasts of sports events from claims related to improper use of the participants’ names, images and likenesses. She also asked Pomerantz about the various ways in which the NCAA says its limits on athlete compensation promote competition among its Division I schools and, thus, justify the existence of the restraints.
The First Amendment question revolves, in part, around the NCAA’s argument that college sports events are of such great public and news interest that athletes cannot demand that they be compensated for appearing in TV broadcasts of them. But Wilken asked at one point: “If the public is so interested, why can only CBS show” certain games? Pomerantz said, in part, the law allows the NCAA, a school or a conference to grant of an exclusive “right of access” to a specific broadcaster without losing the First Amendment protection.
Regarding the NCAA’s contention that the limits help with on-field competitive balance among the schools, Wilken asked: “Isn’t there a less restrictive alternative? Wouldn’t addressing coaches salaries or the money spent of stadiums” have the same effect? She also asked whether the NCAA could impose different revenue sharing rules to help schools or particular sports with their funding.
Pomerantz countered that the NCAA “is not saying we have perfect competitive balance” now, but that if limits on athlete compensation are removed, it would “make it a lot worse” because schools with greater financial resources would be in an even more advantageous position to attract top athletes.
Wilken also said she had “problems” with the NCAA’s contention that the limits on compensation promotes athletics’ integration with schools’ academic environment.
Give NCAA chief legal officer Donald Remy enough sense to avoid meeting the press after the hearing. Instead he issued a statement that’s as detached from reality as the arguments questioned by Judge Wilken are.
“We believe strongly in the merits of our case and will continue to defend the interests of the hundreds of thousands of student-athletes not recognized by the plaintiffs. For them and for all student-athletes, the current model of college sports provides opportunities for success during college and beyond…”
Yep, the NCAA is defending the student-athlete. Remy might be better served by paying attention to something else the judge said.
There is still a prospect that the case could be settled, and at one point during the hearing, Wilken told the sides: “If you want to compromise, I’m all for it – because I won’t be compromising.”
That’s a tell, guys. Ignore it at your peril.