Former UCLA basketball player Ed O'Bannon, the most famous plaintiff in the O'Bannon v. NCAA trial, took the stand on Monday to begin the biggest trial in the history of college sports. O'Bannon's testimony was unsurprising, but extremely important, as he and his legal team set out to prove that the NCAA is illegally profiting off of athletes' likenesses without giving the athletes a fair cut of the profits.
One of the NCAA's biggest responsibilities in the case will be to show why athletes being paid would hurt them as students. O'Bannon and his attorneys aren't just trying to prove that pay is irrelevant; they're arguing that even under the NCAA's current model, academics are not prioritized.
O'Bannon: Academic adviser told him to find a major that "coincided with my basketball schedule."— Jon Solomon (@JonSolomonCBS) June 9, 2014
O'Bannon: "I did the minimum to make sure I kept my eligibility academically so I could continue to play."— Jon Solomon (@JonSolomonCBS) June 9, 2014
O'Bannon and his lawyers also focused on the fact that they believe O'Bannon's likeness was used in NCAA video games. O'Bannon pointed to the fact that UCLA player No. 31 in an edition of EA Sports' college basketball game had his same jersey number, facial complexion, height, and weight, and he shot left-handed. The NCAA has argued that the player names are random, though evidence (that it hopes is left out of this case) shows otherwise.
Even if it was his likeness that was used, O'Bannon said that he was only 17 when he signed his scholarship tender — he claims he never signed anything else to release the use of this likeness — and didn't read the document.
Key detail in questioning: O'Bannon says he was 17 when he signed publicity forms. #ncaa— Brad Wolverton (@bradwolverton) June 9, 2014
In its cross-examination of O'Bannon, the NCAA tried to prove that college sports are an all-encompassing experience of academics and athletics. The line of questioning made that clear:
NCAA lawyer: Did you take some classes that you liked? Did you meet some friends? Did you enjoy the whole college life that UCLA offered?— Brad Wolverton (@bradwolverton) June 9, 2014
Part of the NCAA's responsibility will be to prove that college and professional sports are different. During his direct examination from his own attorneys, O'Bannon shut down that argument.
O'Bannon on difference between NBA and college player: "I had money in my pocket" in NBA.— Jon Solomon (@JonSolomonCBS) June 9, 2014
However, he was pressed more by the NCAA lawyers and avoided the questioning. The NCAA even tried asking if O'Bannon agreed with fellow UCLA legend Bill Walton that the NCAA and NBA are different, though Judge Wilken said that was irrelevant.
O'Bannon did agree with some of the NCAA's points, and it's clear that all-in-all, he thinks he had a good experience at UCLA and did receive some benefits besides financial compensation, such as enrolling early in classes, getting exposure on TV and even meeting the president.
O'Bannon says free education from UCLA is still very valuable to him today.— Jon Solomon (@JonSolomonCBS) June 9, 2014
This line of questioning was predictable, and it was used by the university in the Northwestern football unionization case. The point is to show that athletes already get plenty of value from their scholarships, and thus do not need more compensation. The NCAA also tried to point out that it is not the organization's fault he chose to leave school early and not graduate.
Asked whether he had opportunity to spend more than 12 hrs per week on academics, O'Bannon says he did. He chose not to.— Ben Strauss (@bstrauss1) June 9, 2014
The NCAA did succeed in showing that athletes do have an alternative to college sports, and that it has not cornered the market.
NCAA lawyer getting O'Bannon to say he could've gone to NBA or Europe out of high school.— Brad Wolverton (@bradwolverton) June 9, 2014
They also showed some inconsistencies in O'Bannon's opinions over the past five years, though his opinions are not going to make or break the case either way.
O'Bannon on whether current athletes' interests are different than former athletes' interests? "No, I don't think they're different."— Jon Solomon (@JonSolomonCBS) June 9, 2014
What was won and lost
There will be a lot more debate on the subject, but the NCAA did a good job setting up its point that O'Bannon did not have to play college basketball. That could help the organization prove its rules are not anticompetitive. Again, there will be plenty of debate over whether there are actually fair alternatives to college basketball, but it's certainly not a bad thing for the NCAA to get O'Bannon to admit there were, theoretically, some alternatives.
The NCAA also succeeded in showing that the suit has changed over time, and that O'Bannon has been inconsistent in his opinion on whether there is a difference between current and former players, though O'Bannon's opinion — just like anyone else's opinion — is pretty irrelevant.
However, the NCAA struggled on the academic arguments. The organization did a pretty good job proving its argument that there were ample opportunities for Ed O'Bannon to succeed academically once he chose his major. Its lawyers also showed that O'Bannon received a lot of benefits that his peers did not. And It might have been demanding to play basketball and go to school, but it's tough for other students who are enrolled in extracurricular activities.
As mentioned above, this is the same strategy used by Northwestern University in its NLRB case against its football players — except it didn't work then. Plus, there's a major flaw in what the NCAA seems to think is its killer analogy:
NCAA: "Do you think the person who spends 40 hours a week working on theater is a regular student?" O’Bannon: "Yes, I do."— Brad Wolverton (@bradwolverton) June 9, 2014
Problem w/ NCAA's theatre argument: Those students can still market themselves.— Kevin Trahan (@k_trahan) June 9, 2014
The NCAA has shown that it has a pretty good argument that, under its current model, while there might be some academic restrictions, it's still possible for athletes to succeed academically. The problem for the organization is that isn't its burden of proof.
To win this case, the NCAA must show why athletes marketing themselves, like theater students are allowed to, would hurt their academic experiences. The quality of the "student-athlete experience" is less relevant. There's still a long way to go, but in its first line of questioning, the NCAA failed to prove what it must to win the case.