After a week of hearing witness after witness line up to methodically beat down the NCAA's model, the embattled organization is finally about to get a chance to share its side. As you might imagine, NCAA chief legal officer Donald Remy is excited.
"Trials are like this," Remy said. "It is always the case that in the beginning you hear a lot of the evidence that the plaintiffs want to put forward."
This is understandable for an organization that has taken nothing but hit after hit in this very court for the past few months, from Judge Claudia Wilken's pre-trial disinterest in the word "amateurism" to her rejection of the Title IX excuse.
But lost in the NCAA's excitement about getting to tell its side is the fact that it may not have any tricks up its sleeves. In fact, the few hints Remy did give away about the NCAA's plans should worry anyone rooting for the organization to prevail.
"You get some things out of cross-examination, but I think when you hear the NCAA's witnesses -- including the NCAA president [Mark Emmert], university presidents, conference commissioners, athletics directors and NCAA staff -- testify, in addition to some of our experts, you'll hear the real story."
The testimony from the NCAA's witnesses will be about as predictable as testimony can be. Emmert, university presidents, conference commissioners, athletic directors and NCAA staff will get on the witness stand and explain what being a student-athlete means to them. They'll talk about the purity of amateurism and the hell hole of commercialism that college sports will become if athletes can be compensated for their athletic abilities.
When you think about it, really, why should it? Why should someone's opinions about the spirit of the game count for something in federal court? The judge wants opinions, but she wants opinions that are based on empirical evidence, not opinions from a bunch of rich academics on national values. Wilken said before the trial that the NCAA must prove how its model "actually contributes to the integration of education and athletics" (i.e. how players getting paid would hurt their educations), which it has yet to do.
The NCAA should have figured out months ago that this kind of testimony isn't going to work, since it's the same strategy employed by Northwestern's witnesses during the football players' unionization hearing.
Northwestern paraded up witness after witness — including former athletes — who said they felt they were students first when they were in school. Head coach Pat Fitzgerald said he sees himself as an educator. Columnists bought in, writing that the players were toast. However, in his decision, the NLRB regional director focused only on the facts of the situation, which showed athletes are treated like employees and Fitzgerald is essentially a supervisor, regardless of what Fitzgerald feels his role is.
You can't blame the NCAA for using this strategy. It doesn't have many options. That was evident Monday, when instead of attacking the facts presented by the O'Bannon plaintiffs' expert witness, it attacked her credibility instead. The NCAA's case is all about rhetoric, not substance, because that's what the organization has to rely on.
Easier to attack credibility than truth. MT @Andy_Staples NCAA attacking Staurowsky credentials. Not attacking any of the alleged facts yet— Kevin Trahan (@k_trahan) June 16, 2014
The NCAA does have some expert witnesses to help plead its case, but they hardly inspire confidence — two of them already have made or been shown to have made statements that seemingly support the plaintiffs.
Remy and the NCAA have to hope that a federal judge will give more weight to Mark Emmert's values than she will evidence. That seems like a bad bet to make when your organization's financial model hangs in the balance, but in a case that has the support of very little empirical evidence, it may be all the NCAA can do.
It has worked for the NCAA before, but never in court.