O'Bannon Trial: NCAA's fear is unfettered booster access



OAKLAND, Calif. -- The college sports booster has had to evolve. Rich men who loved their alma maters so much they would slip some of their disposable income to players in shoe boxes became shady characters covering up sometimes criminal behaviors by funneling payments to athletes in an effort to hide the money trail. With each clever alteration to the method, a sheriff was watching, waiting for the chance to wield the long hand of the law.

The NCAA committee on infractions wouldn't tolerate such lawlessness in the 1980s, when it threw down its infamous "death penalty," shutting down SMU's renegade football program for two years. And while enforcement has become more difficult with the increased lack of regard for the rules, the organization believes it has to stay dogged to maintain competitive balance in recruiting and protect the principle of amateurism.

O‘‍Bannon trial: Day 12
 
Developments: SEC executive associate commissioner Greg Sankey testified about what would happen to enforcement of the rules if the plaintiffs were to win the case and be allowed to sell their names, images and likenesses. Sankey posited that boosters would create a bidding war for players that was against the principles of the collegiate model. Stanford athletic director Bernard Muir said nobody knows what is going to happen in the future if the plaintiffs win.

Impact: Muir, the NCAA's witness, admitted that all anybody is doing is speculating in regard to the future.

What’‍s ahead: John Dennis, who conducted an NCAA survey about fan reactions to players being paid, continues his testimony.

It is college sports' version of Wile E. Coyote perpetually chasing the Road Runner, and into that swirl of futility steps Greg Sankey, the executive associate commissioner of the Southeastern Conference. Sankey will take over as chairman of the committee in August, and he was called to testify Tuesday in the Ed O'Bannon v. NCAA class-action antitrust trial.

As the future upholder of NCAA virtue, Sankey said he has devoted deep thought to the implications of a plaintiffs' victory, which would allow major college football and basketball players to profit from the sale of their names, images and likenesses.

There is the matter of players from the same school or conference being able to negotiate group licenses for their NILs in TV broadcasts, rebroadcasts and video games, but that would not be as much of a concern to Sankey's committee as the ability for individuals to license themselves to third parties such as boosters or independent companies.

"I would have the expectation that people might just pick a number that would drive someone's decision making without attachment to what the actual value might be," Sankey said. "It then becomes a competitive recruiting situation. With four, five, 10 teams recruiting the same player, a bidding war ensues quite quickly."

Acknowledging that he is not always the best at predictions, Sankey forecasted that boosters in a market for players without restrictions would make a payment to them under the guise of it being for the use of their NIL. They could drive the price up as high as they wanted, creating an atmosphere where top players would be driving around campus in luxury cars and living in spacious apartments with none of it being against the rules.

During cross-examination, the plaintiffs' attorneys did not dispute Sankey's comments on boosters. All he said was that there would be increased competition for players, which is exactly what the plaintiffs are seeking.

"The NCAA is trying to raise this specter of boosters and nefarious entities dealing with individual student-athletes," plaintiffs' attorney Sathya Gosselin said after court. "Ironically, when the NCAA and its member institutions and conferences contract with third parties, we don't use the same adjectives to describe those business interests and entities. Then, they are 'corporate champions,' and they are 'partners,' so the whole vernacular at work here is really interesting."

Sankey addressed corporate sponsorship, too, saying that Iowa football featuring Nike swoosh logos all over its stadium was no different than the signage at his daughters' high school football stadium and advertisements on the scoreboard at Little League games.

Judge Claudia Ann Wilken, who will make the ruling in this bench trial, jumped in with a question on the issue: She wondered why an athlete holding up a can of Coca-Cola and saying "Drink Coke" is different than a university's contract with Gatorade that says athletes will be drinking Gatorade on the sideline with a Gatorade logo visible with millions watching on TV.

"As a question of whether or not this activity is a commercial activity that suggests an endorsement by the student-athlete of that particular product, we don't believe it is," NCAA chief legal officer Donald Remy said after court. "If it were, it would be inconsistent with the rules."

Judge Wilken also was unclear as to why the NCAA was suddenly talking about third parties. (The possibility of boosters running wild has only been discussed in the third week of the trial.) She asked if there were already rules in place to stop that sort of behavior, and NCAA attorney Carolyn Luedtke had Sankey explain the booster portion of the rules for the record.

It is likely true that boosters would be unleashed if the plaintiffs win. And it is likely true that Sankey and the NCAA committee on infractions would have much more time on their hands with fewer violations to police.

"We posited what would happen is competition, and who knows precisely what that competition will look like?" Gosselin said. "There's necessarily an element of uncertainty to competition, but we say that's a good thing, and certainly antitrust laws recognize that."

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


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