NCAA's O'Bannon strategy: Delay the seemingly inevitable

Allison Joyce

The NCAA is trying to get the O'Bannon trial delayed until February by trying it with the similar Keller video game suit.

Update, May 23: As expected, the NCAA's attempt has been shot down. The trial begins June 9.

Original, May 21: The trial for the O'Bannon lawsuit is rapidly approaching, and on June 9, we'll begin to hear the arguments for the biggest trial in the history of college athletics — one that could completely change the way the NCAA operates.

So the NCAA's legal team has a strategy: delay, delay, delay.

They tried that before, appealing various aspects of Judge Claudia Wilken's pre-trial decisions, but were unsuccessful each time. Now, they're trying to get the trial pushed back to February altogether by recombining it with the Keller trial, which regards athletes' likeness being used in video games.

"There's a host of issues that potentially overlap between O'Bannon and Keller," the NCAA's attorneys said, according to a court filing. CBS's Jon Solomon has a good rundown of some of the issues raised by the NCAA, including whether two trials would be allowable under the Seventh Amendment, which does not allow findings of fact to be tried twice. Wilken, for the most part, disagreed.

"Just because there happens to be some overlap in issues, that just doesn't raise the Seventh Amendment in any way," she said.

The NCAA isn't going to win that argument, and in all likelihood, the O'Bannon case will go to trial on June 9 as planned. But the organization's recent attempts to delay the trial until eternity highlight just how dire the situation is. It was even evident in Wilken's only point of agreement in discussing a delay: "The one thing that gave me pause is the question about the — whether these video games actually use the names, images, and likenesses of players or if really it was all just random."

So on the off chance that issue ends up delaying the entire O'Bannon trial, the NCAA will have gotten a small victory. But it still faces the reality of answering the question Wilken posed, along with many others, that are nearly impossible to answer if the current structure is to stay intact:

  • Are the athletes in video games really random and coincidentally match real players?
  • Do athletes validly transfer their broadcast rights to schools and the NCAA?
  • Would some money going to the athletes — instead of just the schools, coaches and everyone else — really hurt the university's mission of educating students and athletes?

The NCAA is terrified to answer those questions, because there is really no good answer. Wilken has made it clear that the NCAA needs to actually prove its position with facts, not rhetoric. That was very clear when she told the NCAA that she doesn't think "amateurism is going to be a useful word here," and it's clear again as the organization prepares for trial.

Take the video game argument for example. Before, the NCAA would argue that player names and likenesses are generated randomly, and their only proof was because they said it was so. Now there's proof that the NCAA's claim is simply not true, yet they still have to try to defend it.

Or take the education example. According to AL.com, Wilken put the burden on the NCAA to explain how the current restriction on athlete compensation "actually contributes to the integration of education and athletics." There is no good answer to that, other than that it upholds "amateurism," which Wilken already said was a faulty argument since the NCAA has created its own amateurism rules.

When NCAA and school officials discuss the prospect of NCAA change, they always come back to the same talking point: "We believe it's inappropriate to pay college athletes, and we believe our purpose is primarily to educate athletes." But the Northwestern unionization decision proved what should be common sense — when an argument reaches the courts, the burden increases from saying what you believe to proving it with facts.

Considering that burden and the questions the NCAA is going to have to answer, it's fighting a nearly impossible battle. Unless Wilken finds that under the special circumstances of collegiate athletics the NCAA is exempt from following antitrust law, the organization is going to have to make some concessions. They know it, so they've elected to do whatever they can to delay their fate.

And when delaying the inevitable is the best strategy you have, that's not a good sign for your chances in court.

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