One of the NCAA's key arguments in the O'Bannon trial is that athletes are not deserving of television revenue because their broadcast rights do not exist. In non-legal terms, the organization is arguing that broadcasters do not pay for the play on the field, but rather for the use of the stadiums, and if someone happens to be on camera, so be it.
The NCAA already took a hit on this point when its television contracts were shown to contain the transfer of athletes' rights to broadcasters. On Tuesday, evidence was presented that was perhaps even more damning — the NCAA's own acknowledgement of athletes' television rights in an email chain including former NCAA president Myles Brand.
Myles Brand, in '08, asked if likeness task force should examine paying for publicity rights. "Is this a can of worms we want to open now?"— Ben Strauss (@bstrauss1) June 17, 2014
It's certainly a can of worms now for the NCAA, which is going to have an even tougher time proving that rights it was discussing don't actually exist.
It's also interesting -— more from a general interest perspective than a trial perspective — to see that people at some schools considered giving athletes some royalties, while some (even in the same conference) were very opposed to that idea.
Plaintiffs show doc in which Iowa faculty rep on committee advocated for athletes to get some name, image $— Steve Berkowitz (@ByBerkowitz) June 17, 2014
Former Penn State president Graham Spanier didn't want NCAA to include possibility of paying players for image use in report— Mark Schlabach (@Mark_Schlabach) June 17, 2014
Spanier told David Berst: "I wouldn't put it in the report at all--not even a hint of the possibility."— Mark Schlabach (@Mark_Schlabach) June 17, 2014
"Not even hint at the possibility." That came right after Texas women's athletic director Chris Plonsky testified that she believes schools need to protect athletes from "commercial exploitation." Ironically, Spanier's statement is about exploitative as they come: shutting down even the discussion of athletes getting a cut of his school's revenue.
In the end, the testimony of Plonsky ended up being a net negative for the NCAA. It's going to be hard for any of the organization's administrators, athletic directors or presidents to say anything of value to the court, and in the case of Plonsky, the very fact that she testified was enough for the O'Bannon side to score a major win.
More bold talk by an O'Bannon attorney. This time it was Bill Isaacson saying of NCAA witness Chris Plonsky: "She was our witness."— Jon Solomon (@JonSolomonCBS) June 18, 2014
Considering NCAA officials seem to email a lot of uncomfortable things to each other, it won't be surprising if another such email chain is brought up during the testimony of another NCAA witness.
On Wednesday, the organization has a chance to win back some points with the testimony of University of Chicago professor and Nobel Prize winner James Heckman, who will attempt to show the "selection bias" of the plaintiffs. That testimony could at least provide some substance.
But after the documents presented on Tuesday, the NCAA is facing perhaps an even tougher challenge than it was before. Considering the parade of administrators it has lined up to testify, many of whom have a tendency to say things contradictory to their stated mission, the organization can't be feeling good about how its witnesses started off.