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NCAA setup baffles O'Bannon judge

6/24/2014

OAKLAND, Calif. -- On the 11th day of a trial in which Ed O'Bannon and other athletes seek nothing less than the transformation of college sports, the judge who will decide the case asked a witness what he was talking about when he mentioned "the BCS" and "the FBS."

The question Monday from U.S. District Judge Claudia Wilken came as Conference USA commissioner Britton Banowsky explained that four teams left his conference because "being in the BCS was important to these schools." Banowsky, the 18th witness to appear before Wilken, was testifying for the NCAA in support of the organization's prohibition of any payments to athletes beyond the cost of their educations.

Responding to cross examination from players' attorney Seth Rosenthal, Banowsky agreed that the departures of Houston, Memphis, Central Florida and SMU from C-USA for more money in BCS conferences was a sign of the "extreme growth" that football and men's basketball have enjoyed. Rosenthal was about to move into a series of questions about the enormousness of coaches' salaries when the judge interrupted with her surprising questions.

Trying to help the judge after Banowsky explained both the FBS and the BCS, Rosenthal volunteered: "There's a new acronym, CFP, the College Football Playoffs."

"Just what we need," the judge said, clearly exasperated and shaking her head in dismay.

It was not the first time the basics of college sports have thrown the judge. She tried to sort out conference realignment during the trial's first week and abandoned the query when it quickly became mired in detail. And she was incredulous when she learned that committees, not the NCAA or the conferences, were in charge of bowl games.

On other occasions, Wilken has asked penetrating questions that cut through the legalese and the obscurities of an antitrust trial and hit the heart of the key issues.

The trial is scheduled to end Friday, and Wilken told the players' and the NCAA's lawyers last week that she would issue her decision during the first few days of August. In any trial before a judge without a jury, it is difficult to determine which way the judge will go in her final decision, but Wilken did send a signal Friday during a discussion with lawyers.

Suggesting to the lawyers that she wished to hear final statements from them at the end of this week and written briefs by July 2, she said that she wanted them to address the issue known in antitrust trials as "less-restrictive alternatives."

The key issue in the O'Bannon case is the NCAA's restriction on pay to college players for use of their names, images and likenesses in television broadcasts, video games and merchandise. The NCAA insists that its restriction is critical to integrating the athlete into the academic life of the university. If the restriction were eliminated, the NCAA says, the resulting payments to the athletes would isolate them from the benefits of a higher education.

When Wilken says she is interested in "less-restrictive alternatives," she is telling both sides that she feels that the NCAA is a cartel, that its restriction on pay for athletes is a violation of antitrust law, and that there must be a less-restrictive alternative of doing business.

Last week, the judge questioned NCAA president Mark Emmert about the possibility of a trust fund for athletes that would pay them for the use of their names, images and likenesses after they graduated. Although Emmert rejected the idea quickly and conclusively, the idea would easily qualify as a less-restrictive alternative.

Her suggestion to the lawyers that they discuss such alternatives in their arguments and in their briefs shows clearly that she is willing to consider making the changes that the O'Bannon players seek. If she continues to move in the direction that she signaled on Friday, she will issue an injunction that will bar the NCAA from restricting payments to college athletes.

Wilken may not fully grasp the intricacies of the BCS, the FBS and the CFP, but she has a firm grip on the ABCs of antitrust law and how it may work for O'Bannon and thousands of college athletes.