You know, I was kidding about strenuously objecting the other day, but it sounds like the O’Bannon plaintiffs’ decision to abandon their individual damages claims and pursue a bench trial has apparently driven the NCAA to take my suggestion seriously:
“The NCAA vigorously objects to the Plaintiffs’ apparent last ditch effort to change course in this litigation. Because the NCAA was not informed of this decision until hours before this filing was due, the NCAA was not able to adjust any of this filing, save this subsection, or any of its pretrial disclosures to account for a bench trial. The NCAA reserves all rights to seek the appropriate relief in response to the Plaintiffs’ last-minute attempt to change the nature of the trial in this case. Further, in the event the case goes forward as a bench trial, the NCAA reserves all rights to revisit and revise all stipulations, pretrial filings, and submissions that were made today in anticipation of a jury trial.”
If it were me, I’d be fretting a lot more about this:
NCAA president Mark Emmert will testify during the trial of the Ed O’Bannon lawsuit relating to the names, images and likenesses of college athletes, according to court filings Wednesday.
The O’Bannon plaintiffs identified Emmert, former NCAA vice president Wally Renfro and NCAA Division I vice president David Berst as witnesses they want to appear live. All three are scheduled to testify for the defense at the June 9 trial in Oakland.
“The NCAA has indicated that it will check on the availability of the three individuals above to testify during Plaintiffs’ case-in-chief, but that is not sufficient,” lawyers for the O’Bannon plaintiffs wrote. “If those people do testify during the defense case, they need to be unequivocally made available for live testimony as part of Plaintiffs’ case and Plaintiffs need to know that sooner rather than later so they can prepare examination.”
In related news, NCAA spokesperson Stacey Osburn had no comment about these developments and is pondering taking a vow of silence for the duration of the trial.
UPDATE: Jon Solomon explains the tactics behind plaintiffs’ move.
Michael Hausfeld, the lead attorney for the O’Bannon plaintiffs, said in an interview that the Keller plaintiffs’ decision to support the NCAA’s attempt to sever the videogame claims made a jury trial “problematic.” The O’Bannon plaintiffs’ individual claims will not be tried in the future, Hausfeld said.
“This was a self-sacrificing move,” Hausfeld said. “The greater issue here is the need to change and reform the system, to fix an enterprise that’s broken and disregards all of the principles that a business responding to legitimate open-market forces would have to.”
Hausfeld said the NCAA strongly objects to the change “because the move actually strengthens the (plaintiffs’) case. Because the case was always about the system, not an individual players’ monetary recovery.”
Hausfeld said trying the individual claims had also become difficult due to the NCAA inserting witnesses who had never filed a declaration in an attempt to “defuse issues and divert attention from the wrongs of the system.” The injunctive case was always going to be tried to Wilken, not a jury, and all that changed is the individual damage cases are gone, Hausfeld said.
When asked what the change means for the Keller plaintiffs, Hausfeld replied, “Beats me. That’s their decision.”