The landmark antitrust trial against the
"These are huge steps, for the athlete, for the student, for all of us," said O'Bannon, the former
FOR THE RECORD
An earlier version of this story misidentified Donald Remy as the NCAA's chief legal counsel. He is its chief legal officer.
The suit seeks an injunction that would end the 108-year-old NCAA's prohibition on the ability of student-athletes to license their names, images and likenesses for broadcast, rebroadcast, video games and more.
Asked what he found most surprising, O'Bannon replied: "The fact that we finished, that we didn't get thrown out, that it wasn't something where Judge [Claudia] Wilken said, 'You're crazy to want this.'"
Plaintiffs, who filed the case a little over five years ago, allege the NCAA violates antitrust law by colluding with its member colleges and conferences in a scheme that amounts to price-fixing and refusal to deal. The NCAA counters that it is a collaborative joint venture that has made rules in the interest of collegiate sports, thereby maintaining core values key to its fan base of amateurism and an integrated experience of academics and athletics.
Others included three former student-athletes, economists produced by both sides, experts on the increasingly lucrative broadcast contracts that plaintiffs believe student-athletes should share in, and a host of college and conference officials.
At the end of the day, the case will come down to the intricacies of antitrust law, and Wilken, a U.S. district judge, on Friday spent 3 1/2 hours questioning attorneys about the thicket of issues she must tease through. Among them: who are the sellers and who the buyers, what is the anti-competitive injury suffered, and what markets are affected.
Furthermore, the NCAA has put forth in its defense a list of so-called "pro-competitive benefits" that the restrictions on compensation foster. They must prove, for example, that the ban on student-athletes' sharing in name, image and likeness proceeds from licensing deals fosters amateurism, integration of student-athletes into academic life, and "competitive balance" — the attempt to ensure that some schools don't have a wildly unfair advantage over others, thereby recruiting all the talent and leading to uneven competition that would be dull for fans.
Lastly, plaintiffs must show that less restrictive alternatives to the compensation ban would reduce purported harm to student-athletes while still preserving any pro-competitive benefits that are shown to exist.
Wilken on Friday circled back repeatedly to certain questions as she tried to ascertain what market was being affected — the college education market or the broadcast licensing market. In the case of the latter, NCAA lead counsel Glenn Pomerantz told Wilken, plaintiffs would have to prove that the broadcast market was suppressed, while in fact it has boomed.
Plaintiffs' attorney Michael Hausfeld countered that the logic was "circuitous. It says, 'There are a number of broadcasts that include your name . . . so therefore you can't show that there's an effect on output because I've already taken your name.'"
Wilken has called for the parties to file closing briefs by July 10 and probably will rule by mid-August. Whatever she decides, the matter is likely to be appealed.
She telegraphed potential leanings Friday while discussing "less restrictive alternatives" to the blanket ban on name, image and likeness compensation, noting that some could become part of an injunction.
Among the possibilities she listed: allowing colleges to put student-athlete NIL revenue toward a total cost of education, which would potentially include longer-term scholarships that would allow former athletes to return and complete their education; equitably-shared group broadcast licensing revenues; revenues held in trust until athletes are no longer eligible to play; and a system that would call for revenue sharing among student-athletes across colleges, to ensure that competitive balance was not unduly altered and that less wealthy "loser" schools also benefited.
Outside court, NCAA chief legal officer Donald Remy said that after 15 long court days he believes "we're way ahead."
"The plaintiffs have still not been able to articulate an antitrust theory," he said. "It's a challenge — because it isn't there. . . . I feel comfortable and confident that the NCAA has put forth a case that sustains the benefits of a collegiate model — today, yesterday and tomorrow."
Mark Lewis, NCAA executive vice president for championships and alliances, who took the stand Friday morning and acknowledged that the NCAA changes slowly and has failed to make enough positive changes for student-athletes, conceding: "We want to do better. But that's different than violating the law."
Hausfeld, meanwhile, said change is coming one way or another.