Testimony ends in O'Bannon trial; it's in hands of judge
June 27, 2014 11:41 PM
P Photo/David J. Phillip
Testimony has concluded in Ed O'Bannon's landmark lawsuit against the NCAA. Commissioner Mark Emmert was one of many NCAA executives who testified in the case.
By J. Brady McCollough / Pittsburgh Post-Gazette
OAKLAND, Calif. -- Throughout much of the past three weeks, the constants of Donald Remy's courtroom attire have been an NCAA pin on his lapel and a pair of brown cowboy boots. Hired in 2011 to be the organization's chief legal officer, Remy understood the litigious wild ride for which he had signed up, and, as hard as Ed O'Bannon and his plaintiffs bucked, it would be Remy's job to keep the NCAA moving along smoothly.
Outside the United States Courthouse, with this historic class-action antitrust trial having just ended Friday a shade before 5 p.m. local time, Remy had his moment to project absolute calm in the middle of the storm. Or maybe it had suddenly cleared? After five years of lead up and 15 long days in front of Judge Claudia Ann Wilken, the post-trial breakdown seemed so simple to Remy, who claimed -- among other things -- that "we couldn't have done it without" that day's witness, NCAA director of championships Mark Lewis.
Couldn't have done what exactly?
"One of you guys asked me on the first day, 'Hey, what do you think?' " Remy said. "And I said, 'Hey, look, it's day one of a trial.' But it's now day 15, and what I saw was no real evidence of an anticompetitive injury, lots of evidence for the NCAA's procompetitive justifications. ... I have a hard time understanding how the judge is going to get from here to the conclusion there was an antitrust violation and fashion an injunction in a way that would meet the test in the antitrust law."
To Remy, it had become obvious the NCAA had scored the victory in its first trial. Never mind what had transpired the previous 31/2 hours in a question-and-answer session with Judge Wilken that amounted to a head-spinning and confusing set of closing arguments. She certainly did not seem settled on anything.
Remy acknowledged that it will be up to Judge Wilken to decide who won, and no matter how he viewed the proceedings, her questions to both sides showed that she will have some intense weeks ahead as she studies the evidence. Antitrust law, after all, is a game of proof far more complicated than a high-school Geometry assignment.
So much of this trial might have been interesting to sports fans but likely was not to Judge Wilken. She consistently indicated with her inquiries that she is not familiar with much of the sports industry parlance, but she is consumed by trying to place this case into the proper antitrust context so she can make her judgment.
It is expected that will happen around the beginning of August, and, regardless of her decision on whether the NCAA's rules restricting athletes from profiting from their names, images and likenesses constitute an antitrust violation, there is likely to be a lengthy appeals process. Friday did not signify anything being finished other than the trial itself, and Judge Wilken just wanted to get clarification on some issues and play devil's advocate, she said, on some others.
Her questions led to what plaintiffs' attorney Michael Hausfeld termed a "cornucopia" of things to consider. Some highlights:
* Even after 15 days, the definitions of which relevant markets an antitrust violation would have occurred in -- the plaintiffs have argued from the start that there are two, a college education market in which the recruiting of the athletes occurs and a group licensing market where the NILs actually are sold -- were still being debated. And within those markets, Judge Wilken needs to know who is the buyer, who is the seller, what is the restraint, what is the anticompetitive effect and what is the procompetitive justification for the restraint.
In making her ruling, Judge Wilken will weigh the anticompetitive effects (the players not being fairly compensated for their market value and consumers not getting the best product) against the procompetitive benefits (beholding the principle of amateurism, the integration of athletics and academics, competitive balance on the field and output).
* The biggest bone of contention between the sides is the theory from NCAA expert witness Lauren Stiroh that says a restraint can only result in an antitrust violation if it results in reduced output downstream. In regard to this case, Stiroh said that the NCAA's NIL restrictions aren't an antitrust violation because the same number of athletes still play major college football and basketball and the same number of fans are consuming the products that use their NILs.
The plaintiffs vehemently disagree with her theory. Judge Wilken admitted she is dubious of it Friday, too. If the plaintiffs present sufficient evidence in their post-trial brief based on past cases to convince her that Stiroh is wrong, the NCAA's case will take a major blow.
* Judge Wilken made the point that NCAA witnesses have been saying the draw of college sports is that the players are students and that would not change even if amateurism was no more.
"What seems popular is that it's a college," Judge Wilken said.
* At one point, as NCAA attorney Glenn Pomerantz talked about how an injunction would affect competitive balance, the judge said, "Aren't we just kind of guessing?"
Near the end, a number of less-restrictive alternatives to the current model were discussed. These would represent a compromise, options that would lessen the restraint and maintain procompetitive benefits.
While Remy was eyeing total victory, Hausfeld was looking at the big picture beyond this trial.
"I don't think anyone questions there's going to be a new world of college sports," Hausfeld said. "It's where that world ends up and whether or not it ends up either by resolution, by court order, by a new vote, a breakaway by the 'Big Five' [conferences]. Something within this structure has got to give."
J. Brady McCollough: firstname.lastname@example.org and Twitter @BradyMcCollough.
To report inappropriate comments, abuse and/or repeat offenders, please send an email to
email@example.com and include a link to the article and a copy of the comment. Your report will be reviewed in a timely manner.