You remember the highly anticipated Ed O'Bannon trial, right? Well we're nearly two weeks in — do you know how it's been playing out in that Northern California courtroom? This guide is about making you look smart the next time you get in a barstool argument about the merits of the case. Or at least as smart as your B.A.C. will allow. Here's everything you need to know about how the trial has actually proceeded.
As everyone vaguely knows that it has some potential to destroy the NCAA — you may even be able to explain the difference between a simple "pay to play" argument and the novel federal antitrust claims at play — so shouldn't we be talking about what's happened when the rubber has met the road.
Or the shit hit the fan as it may be for one side.
1) It's A Bench Trial — So Don't Talk About What "Juries Think"
You might have heard that this was going to be decided by a jury — the entire fate of the NCAA's "student ath-o-leet" model determined by a bunch of northern Californians who didn't know what college football was until Jim Harbaugh moved to town (that's not fair — they knew it was what all their prep kids left town to play). But it turns out that didn't happen.
No, the plaintiffs — who had been holding out for a jury — decided last month to forego a jury and have Judge Claudia Wilken decide the case alone. So once that person at the bar starts talking about how no jury will vote to pay athletes, you can squash them.
Why would the parties not have a jury?
Normally, it's the "big meanie" corporate defendants who want bench trials to prevent slick lawyers from obscuring the facts to appeal to the cheap emotions of a jury. Judges have to forfeit their feelings when sworn in (known as Kolinahr). But this isn't the NFL concussion case — with few exceptions, the case isn't about the dramatic personal pain the NCAA has caused some poor kid. Indeed, polls suggest most people don't want college athletes to be paid. The defense seems to have completely dropped the ball on this distinction, wasting almost an hour on questions that a judge couldn't give two shits about.
As for the plaintiffs, as previously mentioned this is actually a federal antitrust case. Antitrust is that branch of law economics grad students go into so they can get off looking at models all day. Econometric models. They've had days upon days of economists testifying. The point is, most average Joes and Janes couldn't stay awake during their Monday afternoon economics lecture in college, let alone 2 full days worth.
But this also means you put your fate in the hands of someone who might not have a clue what's going on. Remember Tyrone Prothro, the former Alabama wideout who did this:
Well, he also testified about how his career was ended by an injury and then he was asked by the NCAA to pay for pictures of himself to use in his book.
As Stewart Mandel (whose Twitter feed is pretty much the best real-time source on the trial) put it:
Prothro's roughly 75-minute turn on the stand on Wednesday was brief and easily digestible compared to Stanford professor of economics Roger Noll's three-day, nearly 11-hour testimony. Noll, an antitrust expert, laid out the plaintiff's various legal arguments. Prothro put a face on them. He also provided the comedic high point of the trial to date when, after testifying he won an ESPY for the "The Catch," Judge Claudia Wilken asked earnestly: "A what? ... Can you spell that?"
Don't know what an ESPY is? Sounds like a judge ready to decide how much college football is a business.
2. Man, The NCAA's Witness Selection Is Awful
Not that the witnesses are bad people — probably — but they are just atrociously ill-selected.
Take Jim Delany, the evil emperor of the Big Ten. The NCAA wanted this guy to testify.
Delany spoke of his desire to return to a system in which freshmen are ineligible to play varsity sports. That was the rule when he was in Chapel Hill and Delany believes that year in residence would be a "silver bullet" to help athletes who are at-risk students adjust to the rigors of college coursework. He also said that "when basketball season is over, they probably should just put a lock on the gym."
Delany is tired of athletes being asked to spend all year on voluntary — read: mandatory — workouts. He'd like to see athletes get a chance to spend a semester abroad if they chose. He believes they are supposed to be students first.
Now, no one would advocate that Delany lie, but this is the guy you choose to make your case? A guy whose major axe to grind is that the NCAA isn't amateur enough? Hell, the defense didn't even finish its cross outline of Delany because they felt they'd already gotten what they wanted.
When the other side is giggling and waiving on cross-examination, it's time to radically reevaluate your chances.
3. Never, Ever Write Emails
On a related note, the defense called a particularly disastrous witness last week. It's not that Texas women's athletic director Chris Plonsky said anything horrible. It's who she was that screwed the defense.
But it was what Plonsky's presence on the stand allowed the plaintiffs to push information into the record that harmed the NCAA's case. It gave the plaintiffs' attorneys an opportunity to easily introduce evidence that proved NCAA and school officials have long been worried about the athlete name, image and likeness market that the NCAA's legal team is now claiming doesn't exist.
Here's a life lesson if you're planning a multi-decade fleecing of students: try not to write emails. In this case, not only did the NCAA write emails, but called Plonsky to the stand — a sufficient (if not necessary) step toward allowing the plaintiffs to throw some seriously incriminating emails in front of the jury (HA! See how important it is to learn rule #1? — I obviously mean "judge"). Per Andy Staples:
"This is how I feel: if a [student-athlete] can sue the ncaa for these two things — one of which (the ea sports [video] game) only uses school marks and names, not s-a names, then what's to prevent all players from suing us to get a piece of every broadcast rights fee — since clearly we use their names and images in those telecasts?" Plonsky wrote.
Worse than emails Plonsky wrote, were emails that she saw in her role as a member of the commercialism task force — which is a name that should have already raised red flags:
"And I remain committed to the idea of having some return (financial) to the student athletes themselves. Falling short of at least suggesting that, especially since we are 'running up the flagpole' some other ideas, is a mistake, I believe."
Those words came from Elizabeth Altmaier, the NCAA faculty athletic representative for the Iowa Hawkeyes at the time. As a faculty rep she didn't really "get it" when it came to the scam at play. For that we turn to the response:
At 3:10 the next morning, then-Penn State president Graham Spanier, the task force's chairman, fired off an email to NCAA president David Berst. "For the record, Dave, I disagree strongly with her idea that we compensate athletes for the use of their images... I wouldn't put this in the report at all — not even a hint of the possibility."
It's worth noting that this is not even the worst legal pickle Spanier is facing, but it does make you wonder if he had emails saying, "So I hear you, but still don't see what's wrong with Sandusky?"
Don't put potentially actionable behavior in emails and DON'T MAKE IT SO EASY FOR THE OTHER SIDE TO PUT THAT EVIDENCE IN. Indeed, these emails ended up overshadowing everything she said on direct examination, meaning there was no real reason to ever call her.
Do you see how this is starting to sound like the NCAA's lawyers are the only ones demonstrating amateurism?
4. The Difference Between Football And The Business Of Football
Anyone with even a passing involvement with the actual playing of football understands that it's a highly intricate team sport where every player contributes to the ultimate outcome of every play. Unless you're Chad Johnson or something. Anyone with a passing involvement in watching packaged football on ESPN knows that it's all about just how awesome one marketable player can be. Literally the best show ESPN puts on the air is NFL Matchup, and they put it on at 7 a.m. so no one needs to be bothered with actual, measured analysis.
One huge development of this case is laying bare exactly how giant that gap is. During the previously mentioned testimony of Prothro:
On the subject of Prothro's famous play, however, Pomerantz asked whether others contributed to "The Catch." Prothro initially replied with a chuckle, "I mean, who else did it?" Upon follow-ups, though, he agreed the play wasn't possible without his quarterback and offensive linemen. Was the lawyer suggesting that Prothro doesn't own the rights to the image because it wasn't his individual play?
But... remember that "ESPY" thing that Judge Wilken couldn't spell? Remember how the NCAA and its member schools gleefully embraced their partnership with ESPN and other sponsors to show that ESPY clip over and over and over again? Was Prothro really the one who believed that wasn't an individual play? I mean, until it was a convenient argument in court.
5. Never Mind, The NCAA Has This On Lockdown
Because, you know, the Olympics are amateur:
NCAA attorney Rohit Singla noted that the Harding-Nancy Kerrigan figure skating duel at the 1994 Olympics drew huge ratings, suggesting that unusual events (even if they're negative) can draw interest.
Put aside however you feel about college athletics, the NCAA is running the worst trial that didn't involve modeling bloody gloves ever.