Commentary

NCAA's perfect plan fails

Witness testimony backfires as she's hit with item NCAA didn't want judge to hear

Updated: June 17, 2014, 9:30 PM ET
By Lester Munson | ESPN.com

OAKLAND, Calif. -- The NCAA's plan for Tuesday in the Ed O'Bannon trial was to give Judge Claudia Wilken a detailed look at an ideal combination of athletics and academics at the University of Texas. The plan also included finishing an aggressive attack on the players' expert witness, who said college football and men's basketball were no longer amateur sports and had become professional.

It was a perfectly good plan. Had it worked, it could have provided powerful support for the NCAA's claims that a ban on player pay helps integrate athletes into the academic community and that it maintains the organization's ideal of amateurism.

But as Christine Plonsky, the women's director of athletics at Texas, described in the loftiest of terms how Texas connects its "student-athletes" to the values of higher education, she opened the door to a cross examination on her work on NCAA committees that considered the idea of allowing payments to players as a realistic possibility.

Paying players is not something the NCAA wants to recognize at any level of possibility, much less get the word out that it actually had been considered by top NCAA leaders in a task force that existed for four years. The organization has been trying to say that paying players is unthinkable; after Tuesday, the judge now knows NCAA leaders had actually been thinking about that very thing.

In articulate and occasionally inspiring terms, Plonsky started off well by describing the mission of the Texas sports program as "transforming lives for the benefit of society." As a member of a department with a budget of $165 million, the largest in all of college sports, she told Wilken that "the essence of our work is to work with other people's children. They have just made the biggest decision of their lives -- where to go to college -- and we have a big responsibility."

The "student-athlete" at Texas, said Plonsky, is introduced to the school's commitment to education as soon as he or she arrives on campus. "Academics is where the conversation begins," she testified. "Education is life long, and sports are four years."

The school emphasizes "learning, experience and maturity" in the support services that it offers to its athletes, Plonsky said, adding that former coach Darrell Royal was the first college football coach to hire an academic adviser for his players.

The Texas AD concluded her tribute to her school's program with her fear that paying the players would have a "terrible impact" on the integration of the athletes into academics, explaining that it would be "incredibly separatist."

"If all of a sudden there was a subset among the student-athletes, it would be totally different from what we have today," she said. "We would not function in the manner that we do today."

She was not sure that Texas leaders would accept the idea of payments to players but did not offer any forecast of any specific action administrators might take.

Her description of the vigorous academic life of a Texas athlete was just what the NCAA legal team wanted to hear. The lawyers are trying to convince Wilken that even though the NCAA's limits on player pay could be viewed as price fixing and therefore a violation of antitrust laws, it is justified by the benefit of integrating athletes into campus academic life.

But then players' attorney Bill Isaacson began his cross examination and confronted Plonsky with a string of emails about a task force that, with her participation, studied the idea of paying athletes for commercial use of their names, images and likeness: Exactly what Ed O'Bannon and the other players seek in their lawsuit. The task force made a series of proposals that moved slowly in the direction of paying players, but the legislation died.

At one point Tuesday, Isaacson managed to put up on the courtroom's screens an email from the disgraced former president of Penn State, Graham Spanier, in which Spanier said he simply "did not want to see any mention of payment."

Isaacson also made it clear to the judge that the Texas athletic department, with its budget of $165 million, offers only 20 sports involving a total of only 500 athletes. Wilken, who seems fascinated by the amounts and the movements of money in college sports, is likely to notice these numbers indicate a large commercial and professional enterprise. It is, again, something the NCAA would prefer to leave unmentioned.

Even before Plonsky began testifying Tuesday, NCAA attorney Luis Li drew the judge's wrath with his persistent and patronizing questions of Ellen Staurowsky, a professor at Drexel University who has done scholarly studies of the NCAA for 22 years. Any progress he made in his attack on Staurowsky's qualifications and expertise was lost as the judge twice ordered Li to terminate lines of questioning.

The professor had experienced some difficulty in earlier questions from players' attorney Seth Rosenthal. At one point, she was embarrassed in responding to a simple question from Rosenthal when she could not recall something about her research and said "my neurons are not firing."

At least three times, Li told Staurowsky -- as she hesitated in answering one of his questions -- "I am not trying to trick you" or "it is not a trick question." When Li said he was not trying to trick her, the obvious implication was that he had the capacity to do just that. He was telling a scholar that he was the smarter one of the two. It was not a good thing to do with a witness whose first name is Ellen in a bench trial before a judge whose first name is Claudia.

He also attacked Staurowsky's research with mildly sarcastic questions about her reliance on USA Today studies and news articles from ESPN.com and Yahoo!

When Li flashed a video clip of the deposition of Damian Rhodes, one of the players in the O'Bannon group, a clearly unhappy Wilken interrupted to say, "Do not do that again. Don't show me video of depositions."

Li asked, "May I respond?"

"No," the judge replied. "We are not talking about snippets of depositions."

Li did accomplish some important things in the cross examination. He put together some surveys and polls to show that student-athletes may spend more time studying and attending class than other students, a fact that could become a major factor in the NCAA's contention that amateurism keeps athletes integrated into the academics of the school.

But his attack on Staurowsky may have backfired. Wilken is not prone to drama, but her reaction to Li was her most dramatic outburst in the seven days of the trial.

There is little doubt that the NCAA lawyers worked long and hard on their plan for Tuesday. They located, in the millions of documents exchanged in the pre-trial process, exactly what they needed for their questions to Plonsky and Staurowsky. But there is also little doubt that the execution of their plans fell short of their hopes and expectations.

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