OAKLAND, Calif. — For three days, the NCAA had to operate at a competitive disadvantage. Plaintiffs’ witnesses owned the stand, and all the attorneys for college sports’ controversial governing body could do was try to poke small holes in the case being laid out by Ed O’Bannon’s team.
When you’re used to being omnipotent, losing control of any situation can be disorienting. So it was with satisfaction that the NCAA called expert witness Neal Pilson to the stand Thursday morning.
Finally, they had the floor of the United States Courthouse to drive the conversation to a comfortable place. And it was just perfect that Pilson, the former president of CBS Sports from 1981-83 and 1986-95, would talk about the biggest issue in the entire case for the NCAA if it is to survive this antitrust class-action lawsuit with minimal fractures to its current structure: Whether or not rights exist for the licensing of college athletes’ names, images and likenesses in the realm of live television broadcasts of games.
For that is where the big bucks lie — not in the licensed agreements for video games, rebroadcasts, game clips and individually licensed products such as jerseys and bobblehead dolls — and nobody has understood that better than Pilson, 74 and the president of Pilson Communications, which specializes in consulting for the sports TV industry.
He started at CBS Sports in 1976 and within a few years negotiated the contract with the NCAA that stripped March Madness from NBC and brought it to CBS, beginning a 30-plus-year relationship between the two sides that has filled their coffers and helped create the commercialized world of college sports that is now on trial. All along, he felt there was something special about the collegiate model.
“I think viewers appreciate and enjoy the concept that college football players are playing because they enjoy college football,” Pilson said to NCAA attorney Kelly Klaus. “They volunteer to play it, they risk injury, they’re relatively young, average 18 to 23, and they are amateurs. …
“There is also the fact that the players move through the college system and most of them only play in terms of being on TV for one or two years, so the loyalty of the TV audience is not to the players, it’s to the sport and to the institution, and I use this example: If Texas lined up to play Oklahoma but you took the uniforms off and said ‘One is green, one is blue,’ I don’t think you have a television show. You have the players, but you don’t have the links to the institutions.”
It sounded good to NCAA chief legal officer Donald Remy. This witness was backing up the procompetitive justification for the amateur model as necessarily unique from professional sports.
“I have substantial concern [giving players a cut of TV revenues] would change the fabric of the sport,” Pilson said. “People who see one concept of college sports being that young people are playing for the joy of the game would convert into a sense that, well, this is just another professional sport.”
That was how Pilson ended his direct testimony to Klaus, and as Judge Claudia Ann Wilken called for a break before cross-examination, a question hung in the air outside the court room: Was Pilson right about the way consumers would react, or was he simply an anachronism? For his part, he did acknowledge to reporters assembled in the hallway that his day was not over.
“That was the easy part,” he said.
Inside, plaintiffs’ attorney Bill Isaacson, one of the leading representatives in antitrust cases nationally, was waiting. He pulled up a slide quoting Pilson as saying the “sense of avocation has long been at the core of the amateur ideal” and then searched Google for “avocation.”
“A hobby or minor occupation,” Isaacson read. “Do you think of Division I men’s football and men’s basketball as a hobby?”
“No, I don’t,” Pilson said. “And I would probably change the word based on your observation.”
Pilson said he built his entire career on feeling as if he knew the consumer.
“And it’s your opinion that the public watches college sports because they perceive student-athletes as playing for the love of the game,” Isaacson said. “Is that fair?”
“I’m well aware of the scandals that have taken place at North Carolina, Miami, Colorado … but the public still has a vision of college sports that is significantly different than professional sports,” Pilson said.
Now, Pilson was playing into Isaacson’s hands. Isaacson pulled up a slide from a 2006 meeting of the Knight Commission, an oversight committee comprised of school presidents and commissioners, that said Americans by a two-to-one margin believe college sports are more like pro sports.
Isaacson then revealed an exhibit that contained an email from Wally Renfro, the NCAA’s former senior vice president, to Mark Emmert, the president, from 2010 that shows Renfro telling Emmert the public thinks the NCAA is exploiting athletes.
“It’s a fairness issue, and along with the notion that athletes are students is the great hypocrisy of intercollegiate athletics,” Renfro wrote.
Later, Renfro wrote: “The public would generally agree that has all taken place at the expense of the student-athletes whose participation is exploited to make a buck for a bigger stadium, the coaches, administrators or for the other teams who can’t pay their own way.”
Isaacson’s point was that, if the NCAA knows the public is already viewing it as a purely commercial enterprise and the games are still popular, then giving the players more compensation would not affect their popularity in the marketplace.
He would finish with Pilson by pulling up a promotional ad for Pac-12 Conference basketball that features players from each team.
“Note that every one of the players is wearing the uniform of his school,” Pilson said. “If you take that uniform off, you’ve got a very ineffective promotion.”
“How does the picture look with an empty uniform?” Isaacson said.
Afterward, Remy held a news gathering in which he seemed satisfied that Pilson’s testimony had returned control of this case to the NCAA.
“We were finally able to lay out in the court before the judge what we’ve been saying all along in this case with respect to what happens in broadcast agreements,” Remy said.
“The other thing I like about his testimony was that he spoke from the heart about the collegiate model. … This negotiation to pay individuals for NIL [name, image and likeness] rights and how it would change the product and how in his expert opinion broadcasters would no longer be attracted to the product.”
J. Brady McCollough: firstname.lastname@example.org and Twitter @BradyMcCollough.