Exactly what the NCAA and O'Bannon will use against each other in trial

Joe Robbins

SB Nation has obtained the pre-trial court filings, which show the cases each side will present against each other. Let's analyze each.

Earlier this week, we gave you a guide of everything you need to know about the background of the O'Bannon case. But now that both the O'Bannon plaintiffs and the NCAA have filed their trial briefs, we get a look into what both sides plan to argue once proceedings begin on June 9.

Take a look at each side's three biggest arguments, as well as our comments evaluating their effectiveness, based on what evidence we have right now.

O'Bannon arguments

1. Companies pay for the use of players' likenesses.

For the O'Bannon plaintiffs to be successful in their lawsuit, they have to be able to prove a major premise: that the NCAA and its member schools are illegally using the likenesses of athletes for profit. The NCAA claims that companies like ESPN and CBS do not pay for the likenesses of players, and rather, they pay to show a school's tradition and for the rights to the stadium. If someone happens to run in front of the camera during a game, the NCAA Says, it isn't its duty to compensate that person.

However, the plaintiffs claim to have some damning evidence against the NCAA that companies really do seek out the likenesses of players.

The (plaintiffs) will present documentary evidence and testimony from Joel Linzer of [Electronic Arts, creator of the "NCAA Football" and "NCAA Basketball" video game series] at trial that while EA abided by the prohibition on paying college athletes for the use of their (likenesses) in NCAA-licensed videogames, it nonetheless wanted to obtain the rights for more precise likenesses.

Most arguments against the NCAA's claim about athletes' likenesses are summarized as "come on ... be serious." But in court, you need proof, and the EA testimony should provide solid evidence that there is a market for players' likenesses and that the NCAA is exploiting it.

It could be more of a challenge applying it explicitly to television broadcast rights, because the executives at those companies won't have statements available like EA's. Still, the plaintiffs will argue from their own economic analysis and the EA testimony that there is a market that athletes are being restrained from.

2. Athletes are there for sports, not school.

Judge Claudia Wilken told the NCAA that at trial, it must prove that the act of preventing athletes from profiting off their likenesses is something that "actually contributes to the integration of education and athletics." The plaintiffs say they will prove the opposite.

They aren't just trying to prove that an athlete can still receive an education while being paid; that strategy was used in the Northwestern unionization case, when athletes were compared to work-study students. Rather, the O'Bannon plaintiffs say they will prove athletes are not in school for education at all, thus rendering irrelevant the NCAA's need to present them as only students.

The evidence will show that Division I football and basketball players are simply not receiving the same education as their peers in the student body.

The plaintiffs also said they have a number of witnesses, consisting of former players, ready to testify that they were forced to put their athletic obligations ahead of their scholastic obligations while in school. That was basically the strategy of the Northwestern players, though they did not go so far as to prove that players don't receive sufficient educations.

In order to win, the plaintiffs must hammer home this point: in order to stay with the team, athletes had obligations that got in the way of the educational experience.

3. Paying athletes will not hurt business.

The plaintiffs will have expert witness testimony from Dr. Roger Noll, an economist at Stanford, who they say will prove that paying players has no impact on consumer habits. The NCAA has surveys showing that the public is against college athletes getting paid, but the plaintiffs argue that doesn't matter.

As (economists) will show, public outcry over the prospect of athlete compensation in other amateur sports, such as the Olympics, has not been a reliable indicator of subsequent consumer withdrawal. On the contrary, the Olympics have thrived since loosening the restriction on professional athletes. Likewise, the NCAA cannot reconcile its prediction that compensation in any form will extinguish consumer interest with its recent experience.

In perhaps a more relevant example, the plaintiffs wrote that people still "flocked" to watch Ohio State play in the 2011 Sugar Bowl, even though a number of its star players had violated NCAA rules. The same, they say, is true for Johnny Manziel and other high-profile cases.

This argument is secondary to the main argument of whether the NCAA is illegally selling the rights to athletes' licenses, but it will also be important for the plaintiffs to prove that an injunction will not ruin the industry, and therefore that the compensation limits are unnecessary.

O'Bannon Trial Brief

NCAA arguments

1. Amateurism is necessary for the NCAA to uphold its mission.

One of the NCAA's most-criticized arguments is that it claims its rules against athletes receiving compensation are put in place to protect amateurism ... a word it made up. Even Judge Wilken told the NCAA that she didn't think amateurism is "going to be a useful word here."

However, the NCAA claims that since its mission is a unique joint venture, it is allowed to enact these rules in order to keep the sport competitive.

The Supreme Court has held that, where alleged restraint involves "the core activity of the joint venture itself," there is no need to analyze whether the restraint is reasonable necessary to achieve procompetitive benefits.

...

The courts are uniform on the controlling legal standard in this context: "when an NCAA bylaw is clearly meant to help maintain the 'revered tradition of amateurism in college sports' or the 'preservation of the student-athlete in higher education,' the bylaw will be presumed procompetitive, since we must give the NCAA 'ample latitude to play that role.'"

Of course, this still doesn't mean that the NCAA can create whatever rules it wants in the name of its vision. There has to be a certain goal that restraint on athletes making money achieves. In this case, it's the integration of education and athletics, and at trial, the NCAA must prove that the restraint is necessary to do that. The NCAA says it can in two ways.

First, by ensuring that (athletes') involvement in intercollegiate athletics is as students rather than as professionals, the rules focus (athletes) on spending their time doing what students do rather (than) trying to make as much money as possible, which is what professionals do.

...

Second, the rules make it possible for colleges and universities to support broad-based athletics programs that bring to campus hundreds of (athletes) in dozens of other sports who might otherwise not be able to attend college.

This is where NCAA supporters should worry. The plaintiffs claim to have a number of witnesses who played college sports and will prove that athletics actually got in the way of their education. This point was proven fairly easily in the Northwestern unionization case. The second point wasn't even allowed at trial by Judge Wilken, because she said the NCAA hasn't showed why it couldn't just enforce stricter revenue-sharing policies, like curbing skyrocketing coaches pay or massive facilities spending.

Hey, we finally joined Facebook!

2. There is no market for the broadcast rights of student-athletes.

The NCAA has held this argument for a long time. Broadcasters don't pay for the right to broadcast athletes; they pay for the right to broadcast stadiums, and if someone happens to run in front of the camera, the NCAA and the schools don't owe them any money.

(Athletes) do not have (broadcast rights) because they do not create college football or basketball games or control the stadiums where they are played. The colleges and universities ... 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 ...

The (athletes) do not. They are only in the stadium at all because their colleges and universities have agreed to let them play ... (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.

There are obvious pitfalls here. Of course, the NCAA and the schools provide a platform, which is why the athletes aren't entitled to all of the broadcast money. However, the same setup is in place in the NFL, where the athletes are entitled to a portion of the money.

The NCAA also claims that the plaintiffs don't have sufficient proof athletes are being restrained because they don't have a legitimate quantitative analysis of the market. Plus, the organization says, the athletes have not transferred their rights and "the (plaintiffs) will have no evidence that any broadcaster believed that such a transfer of rights was occurring or necessary." The media companies have backed the NCAA on this claim.

The plaintiffs claim to have solid evidence that there is a market for athletes, because EA wanted to pay athletes for their names and likenesses. However, the NCAA says that isn't true, since "the games did not use (athletes') real names or faces." It says that in any likeness dispute, the plaintiffs cannot prove injury from anticompetitive effects. The plaintiffs claim they can. Expect a lot of numbers from both sides, touting two very different opinions.

3. Amateurism rules are needed for competitive balance.

The NCAA says that the Supreme Court has "recognized that promoting competitive balance among sports teams" is a legitimate reason for an anticompetitive market, which is true. Its obligation will be to prove that its rules are key to promoting competitive balance.

The NCAA's experts will present empirical analyses showing that revenue and spending are not strongly correlated with success and that, instead, non-monetary factors play a large role.

...

It is basic economics that allowing cash payments for (likenesses) for the first time will tilt the distribution of talent and success towards colleges and universities with more cash to spend.

"FOR THE FIRST TIME." Really, they said that. Actually, "basic economics" says that competitive balance will not change much if athletes are allowed to get paid, because the best players are already going to the biggest spenders.

In all seriousness, It's hard to see what the NCAA is getting at here, since the teams with the most revenue and spending are generally among the most successful athletic departments. The organization will likely focus on other things that drive athletes to attend school, like tradition.

NCAA Trial Brief

Your turn

Now that you've weighed the arguments to be used over the next couple weeks by both sides, which do you think has the tougher path ahead?

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