The O’Bannon trial begins Monday.
Andy Staples looks at some myths vs. truths about the case. On the NCAA side, this should be the most troubling “truth”:
The deck is stacked against the NCAA in O’Bannon.
TRUTH: Perhaps the worst thing the NCAA’s attorneys could hear was this statement from Wilken during a hearing in February: “I don’t think amateurism is going to be a useful word here.”
In most arguments, the NCAA and member schools have held out the concept of amateurism as some sort of unimpeachable virtue that makes everything kosher. Amateurism was originally conceived in 19th century England to ensure rich people didn’t lose to poor people at sports, but that’s neither here nor there. Since the NCAA’s founding, the word has become tied to the notion of sports used to enrich academic pursuits. In some sports (football), that was probably never true at the highest levels. In others (any sport that doesn’t make money), that concept remains true to this day. Unfortunately for the NCAA, this case is only about the sports that generate money. NCAA attorneys could replace the word “amateurism” with the word “unicorn” and get about the same result.
Wilken also won’t allow the NCAA’s attorneys to argue about the possible negative effects that a plaintiffs’ victory would have on non-revenue sports. Her reasoning is that no one forces schools to sponsor teams that can’t financially support themselves, so she considers the impact on those teams irrelevant in the eyes of the law. This doesn’t leave much for the NCAA to argue except the pro-competitive aspects of its rules…
Many major-college football and men’s basketball recruits would have offers of at least $100,000 to attend certain colleges if the schools were allowed to use broadcast revenues to compensate athletes for use of their names, images and likenesses, lawyers for the NCAA said Thursday night in a filing related to a class-action anti-trust suit it is facing.
The NCAA’s lawyers wrote that when they present their case during a trial that is scheduled to begin Monday in U.S. District Court in Oakland, they will have experts present analyses showing a scenario under which “many recruits will have significant — in many cases, six-figure — incentives to attend schools with more revenue.
“In those circumstances, it is basic economics that allowing cash payments for (name, image and likeness usage) for the first time will tilt the distribution of talent and success towards colleges and universities with more cash to spend.”
The NCAA offered this assertion in a trial brief that will essentially serve as its opening argument in the case.
“For the first time”? You guys shitting me?
What makes this especially rich – pun intended – is that at the same time the NCAA apparently intends to make this argument with a straight face in Judge Wilken’s court next week, the Big Five conferences are lobbying for some form of autonomy within the NCAA governance structure because, as Mike Slive so airily put it,
“I consider this period of time one of the historic moments that all of us are witnesses to — an evolutionary change where we put the student-athletes first and we build our philosophies on the student-athlete rather than the so-called level playing field,” Slive said. “I don’t know how this comes out, but I’m optimistic the evolution will continue.”
I hope one of the plaintiff’s lawyers asks Delany about that quote.