That’s Tom Farrey’s assessment at the midway point of the Ed O’Bannon trial, which resumes today with star witness, NCAA President Mark Emmert taking the stand.
Farrey recounts the various efforts so far by the NCAA to warn of the various and sundry horrors and slippery slopes that might attend the end of the status quo. Judge Claudia Wilken seems unmoved, focusing instead on the central contention before her: “That the NCAA is breaking federal law by restraining competition in the marketplace.” There is little dispute that the NCAA is a price-fixing cartel and that its rules have “set the maximum allowed payment to players to athletes, above the value of any scholarships they receive. at $0.” The question then, is whether the NCAA is advancing some compelling interest in doing so and whether, if it could no longer do so, those compelling interests would be undermined.
For example, the NCAA says that the integration of academics and athletics is core to its mission, furthers the interests of its “student athletes” and would be destroyed by rules allowing players to receive compensation of various sorts beyond the current grant-in-aid. This has been a focal emphasis of theirs so far. Farrey says that, in the final days of the trial, this is what the NCAA will try to show. The problem is that the judge clearly wants to see actual proof, and the NCAA has been notoriously weak in providing that proof. That’s because, for a long generation, they’ve been able to shirt by on assertion, precedent and sentiment. Not in this court room, it appears.
The NCAA, for instance, will try to argue that consumers will be turned off by pay-for-play. But Neal Pilson, a former CBS executive who earlier testified for the NCAA himself said that fans at Alabama and many other schools wouldn’t care if players got paid. Furthermore, while the NCAA will produce the results of consumer surveys to support their case, prior examples cast doubt on the import of those surveys. Lots of baseball fans said they’d be turned off by free agency, but MLB has been thriving economically. The Olympics have done just fine since they moved away from amateurism. Sports fans always threaten to walk away after the latest lockout or strike, but such mass actions never seem to materialize.
Likewise, its claims about the necessity of competitive balance (which, I’ve argued many times before, is the last refuge of scoundrels and sports executives everywhere) fly in the face of the overwhelming recruiting advantage that the elite programs *already* possess. Indeed, Dr. Emmert has himself asserted in the past that the power schools get the lions’ share of the top players.
Last night, Patrick Hruby said the NCAA could have, five years ago, when the O’Bannon proceedings were first beginning, come up with a compromise. It could have allowed players to do what Olympic athletes do – negotiate whatever outside deals they can, in the marketplace, with whatever sponsors or other entities might be interested. In exchange, the NCAA could have said – we’re keeping all the TV money. Instinctively, I think most casual observers would have regarded that as fair. And the plaintiffs would almost certainly have gone for such a deal.
Now, Hruby says, it’s too late. The NCAA is “doubling down” on a strategy that’s reached a dead end. It is trying to convince the world that, as Farrey puts it, Alabama is more like the UT Chattanooga Mocs than the Dallas Cowboys. Outside of Indianapolis, almost no one believes that. More importantly, the NCAA is being compelled to explain why its rules square with United States anti-trust law, not based on the circular logic endemic to its own manual.
That doesn’t appear to be going very well.