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Patrick Hruby

The NCAA Hutz-O-Meter

Rating the NCAA's defense in the Ed O'Bannon trial

Sports on Earth

The ongoing federal antitrust trial pitting former UCLA basketball player Ed O'Bannon against the NCAA is many things: a parade of claims and counterclaims, an orgy of billable hours, a referendum on the future of the college sports economy.

So far, it also has been unexpectedly amusing, mostly thanks to the NCAA's lawyers.

If the trial's first week and a half has taught us anything, it's that said attorneys are aggressive, determined and seemingly inspired by The Simpsons law-talkin' guy Lionel Hutz. Also known as Miguel Sanchez. Also also known as Dr. Nguyen Van Phuoc. After all, how else to explain a series of curious and comical courtroom maneuvers, all of which are lovingly cataloged below?

The Little League Defense

Tactic: On the first day of the trial, NCAA lawyer Glenn Pomerantz asked O'Bannon if high school athletes should be paid if their games are on television. O'Bannon said yes, so long as those same athletes' televised games are "generating revenue for their school[s]." Pomerantz then asked if Little League players should be compensated for playing in televised games. O'Bannon again said yes, giving the exact same reason.

Rationale: Welcome to the slippery slope. Stay as long as you like -- provided you don't tumble down all the way down the mountain into a hellish pit of dogs and cats living together, mass hysteria and monied peewee sluggers celebrating home runs like this. Basically, the NCAA was attempting to fire a warning shot at both federal judge Claudia Wilken and the general public: If a court forces the NCAA and its member schools to pay college athletes, then Little Leaguers are next. The amateurism line must be drawn here! Outside the courtroom, in fact, head NCAA lawyer Donald Remy called paid Little Leaguers the "logical extension of the legal argument."

Reality Check: Remy's statement is entirely correct -- provided you eliminate the words logical, extension and legal. As law professor and Forbes writer Marc Edelman points out, the O'Bannon trial is an antitrust case about 1,066 NCAA member schools colluding via amateurism to prevent college athletes from selling their publicity rights for profit, thereby creating illegal, anticompetitive harm within a market. By contrast, the Little League World Series:

... does not seem, as a matter of law, to join together the rights of separate economic entities. Indeed, individual Little League chapters and their teams do not generally engage in commercial activities, and the revenues derived from hosting the annual Little League World Series is not then allocated to 'owners' of individual Little League teams.

Moreover, the individual town Little Leagues do not agree not to ban any single town's Little League from sending a team to the Little League World Series all because players hold jobs or otherwise make money. Indeed, a Town of Merrick Little League team would not be concertedly banned from competing in the Little League World Series all because Little Johnie, the team's second baseman, received $5 and an ice cream cone from his coach for hitting a big home run...

The upshot? Little League parents could theoretically follow O'Bannon's lead and sue the LLWS for a cut of television money. After all, this is America. Anyone can sue. That said, their chances of actually winning would be slim to none, and have nothing to do with the questions at the heart of the O'Bannon trial.

Hutz-O-Meter: Three out of five heads. While not quite the most the most blatant case of fraudulent advertising since the film The Never Ending Story, the NCAA's Little League scare tactics flunk the legal sniff test. As for the bigger public relations battle, is an America that's perfectly comfortable with both The Mickey Mouse Club and Honey Boo-Boo really going to freak out over the idea of children collecting a little scratch for their televised troubles?



The Donald Sterling Defense

Tactic: Remember when Los Angeles Clippers owner (for now, anyway) Donald Sterling rhetorically mused of players in the National Basketball Association, "Who makes the game? Do I make the game, or do they make the game?" Guess what: The NCAA is basically making the same argument over college athlete name, image and likeness rights (NILs) in the context of television broadcasts.

O'Bannon's lawyers claim that NCAA amateurism shuts men's basketball and football players out of the group licensing market for their NILs, preventing them from earning money from schools, networks, video game makers and other sources. The association's lawyers claim that can't be the case, because athletes don't have NIL broadcast rights in the first place. No rights, no market, no illegal restraint of trade. As I've mentioned before,  here's how the NCAA makes their case:

… [Athletes] do not have that right because they do not create college football or basketball games or control the stadiums where they are played. Their colleges and universities -- either among themselves or, in the case of the Division I Men's Basketball Championship, through the NCAA -- do.
Take, for example, the Cal-Stanford football game, which has been played 116 times since 1892. Cal and Stanford have scheduled this game long before any of the [athletes] who will play in it have enrolled at either school. Cal and Stanford decide who can play in the game, march in the band, be part of the cheerleading squad, and buy tickets to enter the stadium. Cal and Stanford funded the training and equipment for the football teams, built the stadium where the game will be played and contracted for security to control access to it.
As such, as a very practical matter, Cal and Stanford have the power to keep every network out other than ABC and charge ABC for the privilege. The athletes do not. They are only in the stadium at all because their colleges and universities have agreed to let them play, just as they have agreed to let the band march, the cheerleaders cheer and the fans with tickets sit in the stands. [Athletes] cannot own the right to broadcast their games when they need the same permission that broadcasters do to be in the stadium at all…

Rationale: Pretty simple. As an antitrust plaintiff, O'Bannon has to show anticompetitive harm within a particular market. The NCAA is trying to prove that the same market is illusory, ergo, no harm.

Reality Check: Believe it or not, this argument is probably the association's best chance to win the O'Bannon case outright or on appeal. As a practical position, it sounds ridiculous: After all, networks like ESPN pay billions to broadcast athletes like Johnny Manziel playing football for schools like Texas A&M -- not to stick cameras in school stadiums and hope players run past their fields of view at appointed times. As a technical matter, however, sports broadcast NIL rights are a fairly unsettled area of law. During Week 1 testimony, O'Bannon's lawyers presented college football television contracts that referred to supposedly non-existent athlete NIL rights, while NCAA expert witness and former CBS Sports president Neal Pilson argued that said contract provisions are for athlete promotion, not on-field performance. Which side will prevail? The answer may depend on Wilken's appetite for creating case law precedent.

Hutz-O-Meter: Two out of five heads. In a narrow sense, the NCAA has a real, non-laughable point; in a broader sense, the association is approaching "I Can't Believe It's a Law Firm!" territory. As SB Nation's Kevin Trahan points out, NCAA lawyers are attempting to convince Wilken that "athletes are worth nothing, but can't market themselves because they might get money." Which one is it?



The Tonya Harding Defense

Tactic: Under antitrust law, the same sorts of collusive industry restraints being challenged by O'Bannon sometimes are allowed, provided they have demonstrable "pro-competitive" effects -- that is, the restraint is essential for the health or existence of the industry in the first place. In court, the NCAA is arguing that amateurism fits the pro-competitive bill, in part because college football fans buy tickets and tune in because they like seeing athletes who aren't allowed to be compensated beyond the value of athletic scholarships. Forget talent. Forget school affiliation. Hooray poverty! Go price-fixed labor! Permit additional pay, and those same fans would lose interest.

During Week 1 testimony, O'Bannon expert witness and economist Daniel Rascher argued the opposite: Additional earnings for athletes won't diminish fan appeal. As evidence, he cited high television ratings for the 2011 Sugar Bowl and the Texas A&M-Alabama game in 2013 -- the former featuring Buckeyes players who were suspended for trading memorabilia for tattoos yet allowed to the play the the game, the latter featuring Manziel, who allegedly sold his autograph.

Upon cross-examination, NCAA lawyer Rohit Singla noted that the Tonya Harding-Nancy Kerrigan figure skating matchup during the 1994 Winter Olympics drew huge ratings despite Kerrigan getting whacked in the knee by a Harding accomplice. As CBS Sports college football writer Jon Solomon notes, Singla then asked Rascher whether he was suggesting that because everyone watched Harding vs. Kerrigan, perhaps college athletes should attack someone. For better ratings. Or something.

Rationale: The association was trying to discredit Rascher's notion that fans don't care about athletes violating amateurism rules -- and, by extension, amateurism itself -- so long as there's a good game featuring talented players to watch.

Reality Check: Neither Manziel nor the Ohio State examples prove that amateurism has little to do with the market appeal of major college football. But both offer a strong hint. Meanwhile, Singla seems to be arguing that amateurism should be preserved because it creates the potential for athlete compensation scandals, which in turn whets the public's appetite for actual broadcast events as much as club-on-skater violence. Or something.

Hutz-O-Meter: Five out of five heads -- a non sequitur to rival Hutz's document-destroying rebirth as Miguel Sanchez. Rascher's perplexed response to Singla -- "that has nothing to do with amateurism" -- said it best.



The Entourage Defense

Tactic: During a rebuttal of former Vanderbilt football player and O'Bannon fellow plaintiff Chase Garnham, NCAA lawyers cited dispatches from Garnham's Twitter feed in which he claimed to watch:

* A Miami Heat game and an episode of Sons of Anarchy on the same night;

* A Walking Dead marathon;

* All eight seasons of Entourage, which Garnham declared "awesome."

Rationale: Besides letting every college athlete in America know that the NCAA might be watching their Twitter accounts the way the NSA is watching, er, everyone's Twitter accounts? Easy. Garnham testified that he felt like an "athlete first and a student second" and was steered toward an easy major along with many of his teammates, an attack on the association's position that amateurism is pro-competitive because it enhances education. (To quote the NCAA's pretrial brief, amateurism forces college athletes to spend their time "doing what students do rather than trying to make as much money as possible, which is what professionals do." Please use caution when exiting the logic cul-de-sac). By pointing out that Garnham had time to, you know, watch television, association lawyers were arguing that he had plenty of time to be a serious student had he chosen to do so.

Reality Check: First of all, Tweets are admissible in a court of law. Congratulations, Millennials! You did it! You really changed everything! In all seriousness, it's hard to suss out what, if anything, Garnham's alleged television-watching proves or disproves. Did he have time to sack out in front of the tube because his easy, athlete-first major was just that undemanding? Or because amateurism gave him time to "do what students do" -- which, let's be honest, often has nothing to do with studying -- instead of trying to "make as much money as possible"? Do we know anything about the television habits of the NCAA's professional lawyers who work on billable hours and really are trying to make as much money as possible? Do they like The Walking Dead, too? Does Garnham really think all eight seasons of Entourage were awesome? How does he feel about Arli$?

Hutz-O-Meter: Six out of five heads. If the NCAA manages to win the O'Bannon case, its victory will have as much to do with Twitter-sleuthing as Hutz's victory over Itchy and Scratchy Show non-creator Roger Meyers had to do with, well, lawyering.



The Dr. Evil Defense

Tactic: Like the NCAA, Pilson speculated that allowing athletes to be paid would register as a "negative for the public," in turn making college sports less popular. How? Why? Pilson didn't explain. However, he did loosely quantify said negativity, stating, "I'd tell you $1 million would trouble me and $5,000 wouldn't." Watch out, America: Greedy athletes who already get free educations are holding your beloved campus sports hostage, and they might want as much as one million dollars.

Rationale: The right-thinking American public will never, ever accept a talented college student performer making money for performing.

Reality Check: Two points. First, some athletic directors make more than $1 million annually and nobody seems to mind -- so, like Dr. Evil, Pilson might be lowballing. Second, Pilson essentially admitted that there's an athlete compensation amount above the value of a scholarship that wouldn't hurt the overall college sports product, which plays right into O'Bannon's central argument that market competition -- as opposed to NCAA price-fixing -- should determine what athletes receive.

Hutz-O-Meter: Five out of five heads. In fairness to the NCAA's lawyers, this one is on Pilson. Charging $800 an hour for expert testimony and then inadvertently making the other side's case for them is exactly the kind of crackerjack work you'd expect from Dr. Nguyen Van Phuoc.



The Law-Talkin' Guy Defense

Tactic: At one point during cross-examination, Solomon says, O'Bannon expert witness and economist Rascher told an NCAA lawyer that he wasn't sure about the association's math, because the lawyer was moving too quickly. Replied the lawyer: "Assuming the math is right, I'm right, correct?"

Rationale: Given the split-second opportunity to be right -- twice -- and also correct, who wouldn't mindlessly nod their head in agreement with just about anything coming out of a lawyer's mouth?

Reality Check: We have no idea if the math adds up. Neither did Rascher. Oddly enough, this exchange might have qualified as only the second-strangest NCAA courtroom gambit involving math. While cross-examining O'Bannon expert witness and Drexel University professor Ellen Staurowsky -- who testified that the association does not follow its own stated academic mission when it comes to major-revenue sports -- association lawyer Luis Li reportedly handed her both his smartphone and a calculator, the better to have Staurowsky perform calculations that supposedly would bolster the NCAA's position.

Hutz-O-Meter: Four heads out of five. Using courtroom props is more of a Jackie Chiles move, but "I'm right, correct?" sounds cribbed from a classic Hutz back-and-forth with a judge:

Hutz: And so ladies and gentlemen of the jury, I rest my case.

Judge: Hmm. Mr Hutz. Do you realize you're not wearing any pants?

Hutz: I ... Ahh!

Hutz: I move for a "bad court thingy."

Judge: You mean a "mistrial?"

Hutz: Yeah! That's why you're the "judge" and I'm the "law-talking guy."

Snyder: The "lawyer?"

Hutz: Right.



The #AskEmmert Defense

Tactic: On Thursday, NCAA president Mark Emmert is scheduled to take the witness stand.

Rationale: Emmert is an Indianapolis cartel leader the head of the association and made $1.7 million in 2011, so who better to defend the righteousness of an economic system that denies similar compensatory opportunities to its on-field workforce?

Reality Check: Emmert once said, "If you're not getting sued today, you're not doing anything." Looks like it's doin' time.

Hutz-O-Meter: Five heads out of five. Mark Emmert on an island. A series of hostile questions. Whatever could go wrong?

Read the original article at Sports on Earth