I will try to add more later today, time–permitting, but I wanted to flag something.
SI’s Stewart Mandel and Deadspin’s Tom Ley both wrote this weekend about the fact that the NCAA, during the three week trial, did not call a single former athlete as a witness, apart from those individuals who currently serve in administrative capacities for the NCAA (for example, Big Ten Commissioner Jim Delaney was a UNC point guard in the 1960s. He wasn’t called primarily to talk about his experience as a college athlete).
Ley points to this amazing statement from the NCAA manual about how college athletes participation should be: “Motivated primarily by education and by the physical, mental and social benefits to be derived.”
Then he writes:
Emmert and his goons couldn’t find a single “student-athlete” who does not currently have a financial stake in the NCAA’s continued existence to take the stand and plainly state, “Yes, I got into this for the education as well as the physical, mental and social benefits to be derived.”
I am not sure this is really the relevant issue. No doubt, the NCAA could have found lots of former athletes who would attest to how great their college experience was and how much they owe to athletics. But the NCAA’s defense at trial is that a change to the current economic structure would do irreparable harm to college athletics. If the NCAA called to the stand a former athlete to talk about how great his experience was, the plaintiffs’ attorneys, on cross, would glide right past that to ask that player how receiving money from NIL rights would have ruined that experience.
The NCAA endured many embarrassing moments during the trial. Most recently, on Friday, its own economic expert Daniel Rubinfeld testified that the NCAA was not a “classic cartel,” but merely a joint venture that creates rules to enhance the appeal and value of college athletics. Unfortunately for the NCAA, Rubinfeld has previously written that the NCAA is, in fact, a cartel that produces profits “inconsistent with [economic] competition, a fact he had to acknowledge on cross and which led to some less-than-convincing efforts to explain the difference between good and bad cartels.
The NCAA is trying, it appears, to defend the indefensible. It’s not clear how calling former athletes to the stand to talk about how great college was for them changes that reality. The best the NCAA could have hoped for were some very unconvincing words to the effect that, “no, really, it would have been *awful* for me to have had some pocket money when I was in college.” The NCAA seems to have made a lot bad decisions during trial. But I don’t think this was one of them.