O'Bannon Trial: Delany's testimony bolsters plaintiffs' position

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OAKLAND, Calif. -- In one week, the Ed O'Bannon v. the NCAA trial will be over, the closing arguments made by each side for whether the procompetitive benefits of the organization's rules prohibiting college athletes from profiting from their name, image and likeness outweigh the alleged anticompetitive effects on Division I-A football and Division I basketball players.

To make that determination, Judge Claudia Ann Wilken most certainly will have to evaluate the hotly contested topic of the integration of academics and athletics. Most of the NCAA's questioning of its witnesses has revolved around pointing out that its athletes are students first, not at all different from the average student toting his or her backpack to class on a picturesque fall day. That idyllic concept would change irreparably, the organization repeatedly has said, if players were paid anything more than what it costs to pursue their education at the school.

When the NCAA looks back on these historic three weeks that allowed the world to see its business practices, it might consider Friday as the day it truly lost its footing on the moral high ground it has assumed since former NCAA president Walter Byers created the term "student-athlete" in the 1950s.

O’Bannon trial: Day 10

• Developments: NCAA president Mark Emmert’s cross-examination concluded with plaintiffs’ attorney Bill Isaacson introducing an email that former president Myles Brand sent to then-NCAA vice president Greg Shaheen in which Brand wondered if the NCAA should consider a post-graduate fund for athletes for their names, images and likenesses and alluded to a possible expanded waiver to accommodate that. Big Ten commissioner Jim Delany testified that if players were paid for their NILs it would create an uneven playing field, and some conferences would opt out of playing conferences that paid athletes a higher stipend. Judge Claudia Ann Wilken repeatedly asked questions to try to understand how money flows through college athletics from the NCAA to the conferences to the schools.

• Impact: Neither Emmert nor Delany were able to escape cross-examination without helping the plaintiffs make their case that a market exists for athletes’ NILs.

• What’s ahead: NCAA director of research Todd Petr will finish his testimony Monday.

Because there was Big Ten commissioner Jim Delany on the stand as a witness for the NCAA, telling the plaintiffs' attorneys exactly what they wanted to hear even before they cross-examined him. Delany, who has been outspoken about the reforms he would like to see in big-time college sports, was trying to explain how more autonomy from the NCAAs rules would impact the "Power Five" conferences if they are to receive that freedom in an August vote of the organization's board of directors.

That was what the NCAA called Delany up there to do, but he did the organization no favors when describing details of what he wanted to see:

"An athletic dead period" during sports' offseason that would limit the amount of time they could spend with their coaches and allow them to pursue study-abroad programs and internships, activities that they currently can't enjoy like their non-athlete classmates.

"I think when the basketball season is over, we probably should put a lock on the gym," Delany said. "Because I don't think the training we have allows for enough of those experiences."

In other words, because of the time demands of their sport, college athletes don't currently have some of the educational opportunities that regular students have. Plaintiffs' attorney Michael Hausfeld would drive the point home in his cross-examination.

"In my personal view, access to internships, summer years abroad are integral to get educations," Delany said. "To the extent that there's interference with that, that ought to be looked at as a possible reform. ... I think we have to back off from it."

"Because it's too much?" Hausfeld said.

"It's too much, yeah," Delany said. "Overuse, injuries, too much athletics for many young people producing a lot of strain on your bodies. I think we need to back off on the amount of time that the athletes are putting in."

Delany, 62, also said he believes freshmen should be ineligible to play, just like it was when he was a basketball player at North Carolina, so that athletes could get acquainted with the academic life of the campus before focusing fully on their sport.

Trumpeting its desire for reform, as it did with Delany and NCAA president Mark Emmert, was a tricky thing to begin with for the NCAA. After all, admitting that changes are needed also is an admission that something is wrong.

"Mr. Delany explained all the reforms that he wants, that haven't happened and require approval of the NCAA and its members, all the ways that the athletes are classified differently from students," plaintiffs' attorney Bill Isaacson said after court was adjourned. "Using the words of Dr. Emmert, they're talking about their concern that what we are proposing will result in a separate classification, and Mr. Delany was describing all the ways that they're different now, and everybody knows that."

Isaacson began the day by continuing his cross-examination of Emmert. He brought up the trend of universities building dorms specifically so football and basketball players can live more luxuriously. He gave examples at Ohio State, Kentucky, Kansas, Auburn and Oklahoma, citing an article that said the Buckeyes' Worthington Building "could be converted into the Four Seasons with minimal renovations."

"Do these types of facilities put athletes in a different class?" Isaacson said.

Emmert pointed out that NCAA rules require at least half of each dorm is filled with non-athletes. Of course, the difference is football and basketball players are guaranteed spots in the nicest dorm on campus; the rest of the students have to fight for them.

As he did Thursday, Isaacson hammered away at Emmert with documents showing NCAA officials have been aware of the problems of co-mingling commercialization with amateurism.

On Thursday, Isaacson showed a tweet from Georgia Tech's marketing department promoting schedule cards using some football players' faces with Coca Cola and Domino's pizza logos.

"I personally don't find it appropriate at all," Emmert said.

He said he does not make the rules, the schools do. But then Isaacson was able to ask Emmert about making Nick Saban the highest-paid football coach in the country when he was the president at LSU.

"You heard what the previous NCAA presidents were like," Isaacson said after. "They were echoing concerns that are no longer being said. It makes sense, when your new NCAA president made Nick Saban the highest-paid coach in the nation. You're not going to [put] that person, no matter how distinguished, no matter how smart, in charge of your agenda of reining in commercialism."

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


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