The NCAA's argument against college athletes being paid is two-pronged. It contends that athletes' rights have no value, but that the organization also deserves to license all of the rights on their own.
On Thursday, NCAA witness Neal Pilson, the former president of CBS, made perhaps the organization's strongest argument yet: rights in those contracts are for promotion of athletes, not for what they do on the field. Common sense tells us that people watch games to watch what's being done by the players, but the argument is technical enough that the NCAA could, theoretically, win it.
If that were all the NCAA was fighting, the case would look a lot different, but the organization has run into a major problem. To preserve amateurism, it has to win on all accounts, and its argument for one part of the case directly contradicts its argument for the other part.
"If there are no NIL [names, images, likeness] rights — suppose we say there's a world where no NIL rights exist — then they're fighting about something that's worthless," O'Bannon attorney Bill Isaacson told SB Nation after cross-examining Pilson. (The NCAA declined to make someone available to comment.) "And so if they lifted the restriction, no one would be paid."
Of course, common sense also tells us that athletes would get paid if the NCAA allowed them to be, especially since so many deals are already happening under the table.
But this is the problem the NCAA keeps running into. In order to keep college sports unchanged, it needs to convince a federal judge that athletes are worth nothing, but can't market themselves because they might get money.
While there is a technical argument for the NCAA to not be forced to share its TV money, that technical argument consistently clashes with the marketability argument, and it's becoming increasingly clear the NCAA doesn't have an answer to why athletes need to restricted from marketing themselves. Even Pilson, when trying to claim people won't watch paid athletes, admitted people would watch Alabama even if athletes were paid.
This is why the NCAA really should have settled the case before it ever got to this point. But even absent a settlement, the O'Bannon plaintiffs consider themselves relative moderates — a peg between the current model and full-blown professionalism. Isaacson distanced his clients from antitrust lawyer Jeffrey Kessler, who is much more aggressively arguing for a professional model. The O'Bannon plaintiffs are not opposed to a trust fund of sorts being set aside for athletes, which would hardly affect the "spirit of the game."
"A reasonable result has to happen, because the people want to watch [games]," Isaacson said.
On that, the NCAA can agree. Well, depending on which part of the case it's arguing. Sometimes it claims nobody wants to watch its athletes. In a case with so many different intricacies, it's those contradictions that could prove to be damning.