Moving Past the O'Bannon Lawsuit

Stop pretending this is the face of evil - Jamie Squire

It doesn't matter who wins, though it probably won't be the NCAA, it matters what we do from this point forward

About the best thing that can be said for the NCAA's performance in court these past few weeks is that it could have been worse. The mothership has a pretty great summation of all of the major arguments in the O'Bannon case, and their unofficial scorebook has this one going 3-1 for the Plaintiffs, and they seemed to spot the NCAA the one out of pity.

The NCAA economic expert conceded that the NCAA was a cartel, although it was one that did good things. Rubinfield was forced to create a distinction between the terms "cartel" and "classic cartel" in order to argue that the NCAA's restraint on trade is justified. He even conceded the restraint exists. The judge's response was to crack jokes at Rubinfield's expense.

Let that be your sign that things weren't going well. When your argument is "sure, we're a cartel, but not a bad cartel," you have lost your way as a witness. Rubinfield really had no other option, as it seems he has previously called the NCAA in cartel outside of these proceedings. Great expert witness selection there, guys.

In fact, the biggest damage to the NCAA's case was not done by the Plaintiffs, but by their own witnesses. Jim Delany testified that the NCAA is currently stressing athletics over academics which is the Plaintiffs' argument, not the NCAA's. Putting Texas women's AD Chris Plonsky on the stand allowed the Plaintiffs to introduce damning emails about commercially exploiting athletes.

Again, why on earth did the NCAA put these people on the stand? They had to know about Plonsky's emails, and the only way they could get in was by putting Plonsky on the stand. So nice of you to help out the other side's case.

But all is not lost for the NCAA, because the one thing that did go right is one of the key arguments of not just this case, but any antitrust case. Antitrust cases usually comes down to which side's definition of the market wins out. A broad definition usually helps the Defendant and a narrow one usually helps the Plaintiffs. The Plaintiffs in O'Bannon decided on the novel theory of a completely incoherent definition of the market. Even on the trial's last day, the judge seemed confused on whether the athletes were buyers or sellers in the market, and the Plaintiffs helpfully answered that they were both.

If the NCAA manages to win this case, which is highly doubtful at this point, it will be because their seemingly insane argument that "there is no market for player name/image/license rights" actually carries the day. Who knew that all of those boosters and autograph hounds were throwing money after a product that does not exist?

The biggest question is where do we go from here? In the immediate sense, it's the appellate courts. There's been plenty of twitter speculation that the NCAA is just trying to set up their appeal. While I agree that the loser at trial will certainly appeal, the idea that the NCAA would sabotage the record just so they could argue their case before one of the most politically liberal appellate courts in the nation strikes me as a misguided strategy.

Besides, an appeal is just a holding action. There's a whole host of lawsuits coming down the pike, and this is just the tip of the spear. The NCAA does not need to be defending itself on multiple fronts. A win in O'Bannon would help immeasurably in the other suits, particularly Kessler.

The next step, in a more global sense, is that some sort of reform and reorganization is coming. I have no idea what it will look like, nor does anyone else. But the NCAA would be well-advised to start thinking about what they want the new collegiate sports model to look like, rather than clinging to the old one. There is still time for the NCAA to have a large voice in how a new system would look, but the longer they simply dig in their heels and try and protect a system that is crumbling around them, the more likely it is that someone like the courts will simply impose a new system on them.

That, frankly, would be a disaster for all parties involved.

Judge Wilken won't make a ruling until August at least, but that's just one small moment in the larger battle taking place over amateurism. The siege of the NCAA is not going to stop or even slow down regardless of what this court says. The NCAA can either further retreat into the castle keep to try and outlast the siege, or they can sit down and come up with a settlement that works for all parties, including college sports fans.

Change is coming, it is up to the NCAA whether they will own that change or have it imposed upon them. I have faith that the NCAA is full of passionate people who do care deeply about college sports and the athletes. It is up to those people to find a compromise solution.

So here's the deal. Reformers need to stop demonizing the NCAA and start offering practical solutions that everyone can live with. Emmert's an easy target, but he's not a Bond villain. More progress can be made with co-operation rather than conflict. On the other hand, the supporters of the status quo have to recognize some sort of change is coming, whether they like it or not. We note your displeasure, but that bridge has been crossed. It's time to come to the table and preserve the things worth preserving. College football in 2014 is different than it was in 1984 just as 1984 was different from 1954. Change is constant.

Everyone in this debate loves college sports, and that gets lost in the heat of battle. This isn't about scoring points or demonizing your opponents. This is about the very future of college sports, and what it will look like in this century.

It's not too late for all parties to come to the table and work out a great, healthy future for all. But time is running out. If we can't solve this ourselves, someone who doesn't care about college sports, or worse yet, Congress, will come up with their own solution. It's time to actually start working towards that solution.

The war is hopefully over, let's work on the peace.

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