Face of O'Bannon lawsuit opens landmark trial



OAKLAND, Calif. -- Vicki Ellen Behringer had found her place in the room for some of the most highly-publicized American court trials of the past two decades. Carrying her portable lap desk, a pencil, an eraser and a small painting set, her artistic talents had brought life to men famous and infamous in the moments their fates were being determined.

There was Unabomber Ted Kaczynski, Michael Jackson, Barry Bonds. She knew who they were, but she did not know the name of this man she was now sketching on the fourth floor of the United States Courthouse in downtown Oakland, this face of the O'Bannon v. NCAA antitrust class-action case that was about to begin Monday morning.

The room was mostly quiet as the tall man in the tan suit jacket waited on Judge Claudia Ann Wilken to make her appearance. Behringer drew from a side profile, shading under his right eye and adding stubble to the cheeks below his perfectly oval dome.

As he sat for just a few more minutes and contemplated a journey to the stand five years in the making, Ed O'Bannon, former star of the 1995 national champion UCLA Bruins basketball team, closed his eyes and covered them with his long fingers.

"He is seriously fidgety," Behringer whispered. "Everybody else has something to do."

O'Bannon trial: Day 1

•The day's developments: Ed O'Bannon took the stand as the first plaintiffs witness. His attorney, Michael Hausfeld, set out to show that O'Bannon was not a "student-athlete" but an athlete "masquerading" as a student. The NCAA's attorney, Glenn Pomerantz, attempted to show that O'Bannon received numerous benefits as part of being a basketball player at UCLA well beyond the "free education" he received. After O'Bannon, the plaintiffs called their expert witness, Stanford economics professor Roger Noll, and he laid out in great detail the ways, in his opinion, the NCAA functions like a "cartel."

•Impact on trial: Noll's testimony will likely mean more to Judge Wilken's decision than O'Bannon's. The plaintiffs must show that the NCAA's rules have led to an antitrust violation. Hausfeld is not finished questioning Noll.

•What's ahead: The NCAA will cross-examine Noll, and the plaintiffs are expected to call former Alabama wide receiver Tyrone Prothro to the stand. He was a star before a leg injury ended his career in 2005.

But O'Bannon, 41, who sells Toyotas in Las Vegas less than a decade after his professional basketball career ended overseas without the glory he imagined as a youth growing up in Los Angeles, would soon be put to work. As the face of this lawsuit aiming for injunctive relief that would free current and former college athletes of the restrictions the NCAA's eligibility rules placed on players' ability to sell their own names, images and likenesses while they are in school, O'Bannon would give his testimony first.

There would be no opening arguments, only the announcement by attorneys to Judge Wilken of a huge development in a case that was once tied directly to O'Bannon's: The lawsuit brought by former Arizona State and Nebraska quarterback Sam Keller accusing the NCAA of conspiring to use college athletes' likenesses in video games without compensation had been settled for $20 million.

Keller was supposed to go to court in March 2015. Without that date on the docket any longer, O'Bannon was alone as he marched his 6-foot-8 frame up to the stand at Judge Wilken's left.

Behringer craned her neck to see him, pulling out her binoculars for a closer look. She was not the only one here to paint a picture of O'Bannon, though. His attorney, Michael Hausfeld, and the NCAA's attorney, Glenn Pomerantz, would each get their crack at him, too, attempting to characterize O'Bannon's four years at UCLA with distinctly different brushes.

O'Bannon's words likely wouldn't mean as much to Judge Wilken's eventual decision as those of the second witness -- Stanford economics professor Roger Noll would later outline the ways that, in his expert opinion, the NCAA runs its business like a "cartel" -- but it was O'Bannon's name on the case.

Through the questioning of his client, Hausfeld's goal was to create the impression of the Ed O'Bannon who wore No. 31 in UCLA blue and gold, a basketball player "masquerading as a student," as O'Bannon put it.

O'Bannon, then a teenager who was recruited by basically every Division I school in the country, chose UCLA because he wanted to play games at historic Pauley Pavilion and get exposure by playing on television. At 17, he signed a national letter of intent without reading a word of it -- tucked in there somewhere was the line about how he would be forfeiting the right to sell his name, image and likeness.

Once at UCLA, O'Bannon said, he would spend 40-45 hours a week on basketball-related activities in the season and about 12 on classes. Academically, he did the minimum to stay eligible. He said he wanted to be a communications major but couldn't because of the basketball schedule and was pushed toward a degree in U.S. History (which he would not complete until 2011). O'Bannon recalled the Bruins taking final exams in hotel ballrooms at the NCAA tournament.

"While you were at UCLA did you think of yourself as a regular student?" Hausfield asked.

"No, not at all," O'Bannon answered.

"Why not?" Hausfeld said.

"Regular students could do regular things, get a job," O'Bannon said. "Regular students didn't have restrictions like an athlete on scholarship did."

When Pomerantz took over for his cross-examination, he illustrated O'Bannon's years in Westwood with an emphasis on the big-picture positives of being in a college environment: Things like the coaching and mentoring he received from then-UCLA coach Jim Harrick and legendary UCLA coach John Wooden. Things like getting to go to the White House and meeting President Bill Clinton after the Bruins won the national championship.

After more than two hours of testimony, O'Bannon appeared tired mentally and particularly weary of Pomerantz, who was poking at many of O'Bannon's earlier statements.

"You said you didn't feel like a regular student at UCLA," Pomerantz said. "Do you feel like a person who spends 40 hours a week working on theater is a regular student at UCLA?"

"Yes, I do," O'Bannon said.

"Do you think that a student who spends 40 hours a week on music is a regular student at UCLA?" Pomerantz asked.

"Yes," O'Bannon said.

"Playing basketball at UCLA was your choice, correct?" Pomerantz said. "Just like the person who loves music or theater might make a choice to do music or theater at college."

Later, after the five-hour court day was over, Hausfeld tried to discard Pomerantz's point.

"They can major in music and theater," Hausfeld said. "You can't major in basketball. The concept of a free education ... you're getting a scholarship in order to play ball. That scholarship is only good as long as you play ball. There is nothing free about it."

O'Bannon's job was complete. He left Hausfeld's side with his wife, Rosa, to fly home, back to his quiet life selling cars. As he walked away, Behringer stood on the lawn with a stack full of paintings. She was now fully aware of the name Ed O'Bannon.

J. Brady McCollough: bmccollough@post-gazette.com and Twitter @BradyMcCollough.


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