• September 19, 2014

‘I Was an Athlete Masquerading as a Student’

Ed O’Bannon testifies as antitrust trial against NCAA opens

For a case that was originally about video games and now focuses on the commercial use of athletes’ images in television broadcasts, there was an awful lot of talk about education during the opening day of testimony in the Ed O’Bannon trial here on Monday.

Mr. O’Bannon, a former UCLA basketball star whose federal antitrust lawsuit challenges the NCAA’s rules on amateurism, 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.

"I was an athlete masquerading as a student," Mr. O’Bannon testified. "I did basically the minimum to make sure I kept my eligibility academically so I could continue to play."

Mr. O’Bannon said his basketball commitments—as much as 45 hours a week—prevented him from taking certain classes and majoring in what he wanted. He said he missed some 35 classes a season because of team travel, typically spent only a dozen hours a week on schoolwork, and left college seven classes short of a degree in part because of the university’s priorities for how he should spend his time.

A lawyer for the National Collegiate Athletic Association, Glenn Pomerantz, questioned Mr. O’Bannon, highlighting that he had far more free time that he could have spent on his classes. He also got the player to acknowledge that, during his time at the University of California at Los Angeles, he received numerous benefits, including a free education, meals, and special treatment that other students didn’t get.

One of the NCAA’s justifications for not paying players for the use of their images is its argument that its athletes are not professionals and that they are integrated into the academic side of their college or university.

The back and forth over Mr. O’Bannon’s academic background was not the only unexpected storyline. Following are some other key takeaways from the day.

Kinks in Plaintiffs’ Testimony

Mr. Pomerantz cited several examples in which Mr. O’Bannon had changed his testimony. In a 2011 deposition he told NCAA lawyers that he didn’t think college athletes should be paid. On Monday he said the opposite.

A second plaintiffs’ witness, Roger Noll, an economist at Stanford University, 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.

Judge Claudia Wilken, of the U.S. District Court here, had to stop Mr. Noll two or three times to have him clarify what he was talking about.

"Who is harmed by these inefficiencies?" she asked, questioning whether it was an antitrust injury. "Clearly, it’s not the coaches."

Mr. Noll could not identify a specific party, a kink in his testimony that could benefit the association’s case.

The judge later asked Mr. Noll to clarify the "buyer" and the "seller" in the two markets in which he said NCAA athletes are being harmed.

Michael D. Hausfeld, the plaintiffs’ lead lawyer, tried to step in: "May I help?" he asked the judge.

After attempting to do so through his witness, Mr. Hausfeld asked if that had helped.

"I’m not going to answer that," Judge Wilken said.

An NCAA Witness for the Plaintiffs?

During Mr. Noll’s testimony, he referred to the NCAA as a cartel that creates a price-fixing agreement with its member colleges. He said that many economists, including one the NCAA plans to call as an expert witness, agreed.

Mr. Hausfeld showed excerpts of a book by Daniel Rubinfeld, an economics professor at the University of California at Berkeley, describing the association as a "cartel organization" with a "persistently high level of profits" inconsistent with competition.

According to one excerpt, Mr. Rubinfeld once wrote that, to reduce the bargaining power of athletes, the NCAA creates and enforces rules regarding eligibility and terms of compensation.

Mr. Rubinfeld has testified in the O’Bannon case that the NCAA imposes trade restraints, one reason that it has been profitable.

The plaintiffs could use the excerpts to establish the restraint, one of the burdens they must prove in order to win the case.

O’Bannon’s Mostly Unruffled Performance

In some ways, Mr. O’Bannon seemed like the perfect witness. He was soft-spoken and thoughtful, often taking several seconds to respond and frequently asking his questioner to repeat something he didn’t understand.

A couple of times, he broke tension in the air by making fun of himself or saying something humorous.

When Mr. Pomerantz, the NCAA’s lawyer, asked him if he recalled ever saying that players shouldn’t be paid—the second or third inconsistency the NCAA had discovered in his testimony—Mr. O’Bannon said he assumed the lawyer was about to show him a time when he did. The comment drew several laughs.

Mr. O'Bannon did not help the NCAA reinforce differences it was trying to establish between collegiate and professional sports. When Mr. Pomerantz asked him to describe how college and pro basketball were different, Mr. O'Bannon had a quick comeback:

"The difference was, in the pros I had money in my pocket," he said, "and in college I didn’t."

But there were times when he seemed to go along with his questioner, even if it was the lawyer for the opposing side. And there was one awkward moment when Mr. O’Bannon made a comment that his lawyers probably would have liked him to take back.

Near the end of Mr. O’Bannon’s 90-minute testimony, Mr. Pomerantz asked him if he had ever objected to not being paid in high school or college, even though he knew he was playing on TV. Mr. O’Bannon said he hadn’t.

Then the NCAA’s lawyer asked him if he thought high-school players should be paid.

"Yes," said Mr. O’Bannon, "if they are generating revenue for their school."

How about Little League baseball players?

"Absolutely," Mr. O’Bannon said, as long as they are generating revenue.

After the testimony ended for the day, Mr. O’Bannon took questions from reporters outside the courthouse.

Asked if he regretted the remark, he said, "I probably should have thought a little bit before saying that. Little Leaguers getting paid, probably not."

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