The NCAA has had some witness issues during the O'Bannon trial, from Big Ten commish Jim Delany accidentally making points for the plaintiffs to the Texas women's athletic director indirectly providing some damning evidence. Now NCAA economic expert Daniel Rubinfeld has pushed the organization into an even deeper hole.
We've seen this coming since the beginning of the trial, when the plaintiffs pointed out that Rubinfeld has called the NCAA a cartel before — the exact opposite of what he should be doing. Because of that, he was already in a bit of a hole, and he apparently decided to grasp at anything to pull him out of it. So the day started with Rubinfeld explaining that the NCAA isn't really that bad of a cartel.
Wilken wants to know difference between classic cartel and garden-variety cartel. "Is it like a classic car?"— Jon Solomon (@JonSolomonCBS) June 26, 2014
Wilken just shakes her head and rubs it as Rubinfeld tries to explain different definitions of cartels.— Jon Solomon (@JonSolomonCBS) June 26, 2014
So the NCAA might be a cartel, but it's not a classic cartel. Or maybe it's a joint venture (which Rubinfeld also admitted can be anticompetitive). That's not too bad. Glad that's settled.
Then Rubinfeld explained that other amateurism organizations don't pay players, so the NCAA doesn't need to either. This is false equivalency, because the market is typically not as restricted for other amateurs, but Rubinfeld tried to compare his time with USA Tennis as a reason not to pay players. Then the judge made fun of him.
Rubinfeld notes he got reimbursed as an amateur by USTA for tennis balls. Wilken: "I guess you didn't have a bobblehead."— Jon Solomon (@JonSolomonCBS) June 26, 2014
But Rubinfeld had jokez, too!
Rubinfeld response to Wilken's dig he got no bobblehead in his image: "No, unfortunately. That would have been exciting, your honor."— Jon Solomon (@JonSolomonCBS) June 26, 2014
Now back to more serious matters. Rubinfeld tried to claim that college sports would become less popular and more like the NBA Development League if athletes were paid. This is another false equivalency, because the teams will still be tied to the schools.
NCAA expert: NCAA sports way more popular than minor leagues, despite leagues having more talent. Says reason is consumers love amateurism.— Michael McCann (@McCannSportsLaw) June 26, 2014
The NFL is extraordinarily popular, despite players getting paid a lot. College football is extraordinarily popular, despite players getting paid nothing. The NBDL is not popular, despite players getting paid a little; lots of people attend minor league baseball, where players are paid a little. Player pay is not what makes a sport popular or unpopular.
Still, Rubinfeld continued with that theory, claiming that baseball TV ratings have gone down because players made more money (even though the plaintiffs showed TV ratings in general have gone down). However, NFL ratings are still through the roof even though players are paid.
Rubinfeld predicts a negative market if players are paid. Points to declining ratings after MLB salaries soared and Olympic model changed.— Ben Strauss (@bstrauss1) June 26, 2014
But even if ratings don't go down with player pay, Rubinfeld claims there would still be problems, because teams would drop out of Division I and schools would play fewer games.
Rubinfeld to Wilken: With fewer desirable teams to play, schools might cut back on the number of games they play.— Jon Solomon (@JonSolomonCBS) June 26, 2014
The idea that there would be a mass exodus from Division I is a stretch, but if only the top schools played games against each other, wouldn't that make it more desirable for fans (earlier, the NCAA said its model is good for fans, and thus not anticompetitive)?
Query: Wouldn't the need to "make payroll" drive schools to engage in more big revenue games, not fewer?— Dawg Sports (@dawgsports) June 26, 2014
Judge Wilken then delivered possibly her biggest blow yet to the NCAA's case. The organization admitted a study that she already said was irrelevant and claimed that schools would lose money, and thus Gonzaga, for example, couldn't spend as much money as Washington State. Wilken attacked that, saying they would spend the same amount of money they currently do, but some of it would just end up with the athletes.
Very interesting moment. NCAA tries to argue that Gonzaga hoops would suffer relative to Wazzu b/c less $$ to spend on players (con't) ..— Stewart Mandel (@slmandel) June 26, 2014
Wilken interjects: "Well, (Gonzaga & WSU) would still have the same amount of money they have now. They'd just distribute it differently."— Stewart Mandel (@slmandel) June 26, 2014
And finally, Wilken asked the big question that the NCAA needed to answer to win the trial, but hasn't been able to, because the proposition is absurd.
Wilken asks Rubinfeld why integration of athletics and academics improves athletes' education and is procompetitive.— Jon Solomon (@JonSolomonCBS) June 26, 2014
Summed up succinctly, this was the testimony from the NCAA's economic witness today, even excluding questions asked of him by the O'Bannon plaintiffs: ¯\_(ツ)_/¯
The NCAA couldn't even get its own witness to make a substantive point about why its model against player compensation is necessary, and instead, it grasped for anything it could to try to keep its version of amateurism from slipping away.
The trial ends Friday. Based on the judge's attitude toward the organization's points today, the July or August verdict will be an emphatic beatdown. The NCAA's own witnesses helped assure that.
NCAA attorney Greg Curtner: The NCAA "is a cartel that does good things as a opposed to a cartel that does bad things."— Jon Solomon (@JonSolomonCBS) June 26, 2014