SBD/June 10, 2014/Colleges

O'Bannon Takes The Stand As NCAA Antitrust Trial Begins; Keller-EA Suit Settled

O'Bannon said basketball activities kept him from taking certain classes
There was an "awful lot of talk about education during the opening day of testimony" in the Ed O’Bannon-NCAA trial in Oakland yesterday, as O'Bannon "told a packed courtroom that he had gone to college with the goal of making it to the NBA and had spent little time on anything but basketball," according to Brad Wolverton of the CHRONICLE OF HIGHER EDUCATION. O'Bannon said, "I did basically the minimum to make sure I kept my eligibility academically so I could continue to play." O’Bannon said that his basketball commitments -- "as much as 45 hours a week -- prevented him from taking certain classes and majoring in what he wanted." NCAA attorney Glenn Pomerantz got O'Bannon to acknowledge that he had "received numerous benefits, including free education, meals, and special treatment that other students didn't get." A second plaintiff witness, Stanford professor and sports economist Roger Noll, "testified about the intricacies of cartels, monopolies, and 'inefficient substitutions,' describing how, instead of paying players, colleges often spend money on high-paid coaches and lavish facilities." U.S. District Court Judge Claudia Wilken "had to stop" Noll "two or three times to have him clarify what he was talking about." Wilken asked, "Who is harmed by these inefficiencies? Clearly, it’s not the coaches." Noll could "not identify a specific party, a kink in his testimony that could benefit" the NCAA's case (CHRONICLE.com, 6/10). 

O'BANNON EXPLAINS: In L.A., Romney & Wharton in a front-page piece note O'Bannon "acknowledged on the stand that he had said in a 2011 deposition that current student-athletes are amateurs but said he now feels differently." O'Bannon: "I'm not talking, you know ... X certain amount. That's for someone else to figure out. But with the amount of money that they are bringing in, I think that they should be compensated" (L.A. TIMES, 6/10). O'Bannon afterward said that he "erred in his testimony when he said that kids appearing in television broadcasts of the Little League World Series deserve a cut of the associated media revenues." O'Bannon: "I probably should have thought a little bit before saying that. Little Leaguers getting paid? Probably not" (ESPN.com, 6/9). CBSSPORTS.com's Jon Solomon wrote the "rhetoric will be over the top at times." The courtroom yesterday "actually produced a scene" in which an NCAA attorney "described NCAA violator Jim Harrick as a valued mentor to O'Bannon in order to demonstrate the numerous ways athletes benefit from being in college" (CBSSPORTS.com, 6/9).

COMING TO TERMS: The NCAA yesterday said that it "reached a settlement" to pay $20M to "current and former college athletes who sued over the use of their likenesses in video games." In N.Y., Eder & Strauss note if "approved by the judge, the resolution of the first case," filed by former Arizona State QB Sam Keller, could "represent a turning point for the NCAA as it confronts a growing group of critics who believe that football players and men’s college basketball players should get a larger share of the revenue from big-time college sports." The players who would "most likely receive payments would be men’s basketball and football players who were on the rosters of certain teams when the video games were sold." That could "include a number of current players," but the NCAA said that there would be a “'blanket eligibility' waiver, so the players and their colleges would not be punished for receiving payments" (N.Y. TIMES, 6/10). USA TODAY's Steve Berkowitz reports the proposed deal was worth $20M "on top of the recently filed" $40M proposed settlement of claims against EA and CLC. Those claims "stemmed from four separate lawsuits, including a part of the O'Bannon case." Keller said, "It's a neat feeling. It's a sense of accomplishment, this becoming the first time the NCAA is paying out for a product on the field. This is going to be the first of many dominoes to fall. It's an exciting time. The whole goal in (these lawsuits) is to change the landscape -- to do what's fair and right. And I wish (the O'Bannon plaintiffs) the best of luck" (USA TODAY, 6/10).

SETTLEMENT'S IMPACT: SI.com's Michael McCann wrote at "first glance, the NCAA's settlements should have no direct bearing on the O'Bannon trial." O'Bannon's legal arguments concerning video games "fall under antitrust law rather than right of publicity law." O'Bannon "charges the NCAA and its members formed an anti-competitive cartel to deprive players of an opportunity to license themselves in games and other properties." But Keller "charges the NCAA and its members violated right of publicity law by misappropriating players' images and likenesses in video games." Keller settling with the NCAA would "remove the right of publicity claim, but not the antitrust claim." O'Bannon "more importantly ... is seeking fundamental change to NCAA amateurism rules so that current and former Division I football and men's basketball players can negotiate deals for their names, images and likenesses." He would "obtain this change only through an injunction ordered by Wilken," which would "compel the NCAA to change its rules or risk contempt of court charges." O'Bannon's trial is "about the future, not about compensation for past wrongs" (SI.com, 6/9).
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