Print and Go Back ESPN.com: OTL [Print without images]

Thursday, June 19, 2014
Email, judge queries dicey for NCAA

By Lester Munson and Mark Schlabach
ESPN.com

OAKLAND, Calif. -- NCAA president Mark Emmert and his lawyers knew what was coming when he faced cross examination Thursday in the Ed O'Bannon v. NCAA trial.

They knew players attorney Bill Isaacson would confront Emmert with an incendiary email in which former NCAA executive Wally Renfro wrote: "The notion that athletes are students is the great hypocrisy of intercollegiate sports." The statement came in a lengthy email Renfro wrote to Emmert on Oct. 17, 2010, about the state of the organization Emmert was about to lead.

Emmert and the lawyers did what they could to take the sting out of the "great hypocrisy" statement, but U.S District Judge Claudia Wilken surprised them with two sets of questions they clearly did not anticipate.

Before Wilken asked those questions, though, the NCAA attorney tried to reduce the impact of the Renfro statement. Glenn Pomerantz led Emmert into an observation that Renfro was a "provocateur" who enjoyed "looking at various views of an issue" and "could argue one side of an issue one day and the other side on the next day." It might or might not have worked with Wilken, but it was the best that Pomerantz or any other lawyer could do in the face of such a devastating assertion from Renfro.

The statement, known as Plaintiffs' Exhibit 424 in the trial, is the closest thing to a smoking gun anywhere in the thousands and thousands of pages of documents exchanged before the trial. When the O'Bannon legal team discovered the email, it must have rejoiced. The "great hypocrisy" statement shoots a hole in the best answer the NCAA has to the O'Bannon effort to transform the organization. Renfro supported his assertion with descriptions of an "epidemic" of commercialization that was pushing the athletes across what the NCAA liked to call the "line of demarcation" between amateur and professional sports.

The NCAA's best chance to fight off the O'Bannon effort to establish pay for college players is to convince the judge that the NCAA's rules against pay help to integrate the athletes into the university community. If the organization can succeed in selling the "integration of athletics and academics" concept to the judge, it will establish a justification for rules restraining pay that appear to be a clear violation of the nation's antitrust laws.

When Isaacson confronted Emmert with the Renfro email, during the fifth hour of Emmert's testimony, Emmert replied mildly and quietly, seeking to avoid undue attention to a bad moment for the NCAA, stating that he "does not believe the statement is accurate."

When Isaacson pushed further, asking Emmert what he did in response to Renfro's assessment, Emmert said he and the NCAA had worked to nurture the "balance between student and athlete" and had "made changes" to fight commercialization that tilted the balance and proposed other changes that were rejected by the organization's governing body.

To protect the athletes from further "commercial exploitation," Emmert said, he had terminated a contract with Electronic Arts to make an NCAA football video game. He also described his elimination of the sale of player jerseys on NCAA.com after a report from ESPN's Jay Bilas that the website allowed a fan to search a player's name and then connect directly to another site that sold the player's jersey.

Together with the "provocateur" claim earlier in his testimony, Emmert and his attorneys might have succeeded in reducing the impact of the Renfro email. But they did not fare so well when Wilken surprised Emmert.

As NCAA lead attorney Pomerantz neared the conclusion of his questions for Emmert on the damage payments to players would do to the integration of athletes and academics, the judge intervened.

"If the money was held in trust until the athletes graduated," she asked, "would that have the same effect?" The last thing the NCAA wants to hear mentioned in this trial is a post-graduation trust fund. It's an idea that makes a lot of sense. The money would come from merchandise manufacturers and television networks, it would not affect college budgets and it would make no changes in the players' lives on campus. It's also an idea Emmert and the NCAA will not consider.

A trust fund would have the same effect, Emmert responded. The athletes "would have the knowledge it was there, and they would try to use it, to monetize it, to borrow on it."

In earlier testimony, Emmert said payments to players would "separate" and "isolate" the athletes from other students and from the academic life of the school. Wilken then asked whether the same isolation would apply to "students whose parents were rich and had money that other students did not."

"It is the same problem," Emmert said.

When Pomerantz asked whether Emmert and other NCAA officials had discussed the trust fund idea, Emmert replied, "Yes, we have discussed it and concluded that even it were paid after graduation, it was still not amateurism. It is still pay, whether paid today or paid tomorrow."

The judge was not done. A few minutes later, she again turned to Emmert, asking him to explain what he meant when he talked about the "exploitation of athletes" by commercial enterprises .

"I am talking about third parties who would take advantage of them, like agents and financial advisers, people who would use them as shills for products," Emmert replied.

Any payment to an athlete would be exploitation, Emmert said. Wilken, obviously perplexed that additional resources for a college student could be viewed as "exploitation," was clearly incredulous.

"Do you think it's exploitation of them or something you don't want happening?" Wilken asked.

It didn't get any better for the NCAA when Isaacson produced several images of current and past NCAA athletes appearing in promotional materials for the NCAA men's basketball tournament and other NCAA-sanctioned events. A photo of Wisconsin's football players appearing at a Rose Bowl news conference -- in front of a Vizio logo -- also was presented into evidence. So was a photo of Texas A&M's football players celebrating a bowl victory in front of a table featuring the Chick-fil-A and Kia logos.

"And that's perfectly fine?" Isaacson asked Emmert.

"That's fine under the rules," Emmert replied. "It's not something I'm personally comfortable with."

Over and over again during Emmert's testimony, Isaacson referred to the NCAA model as a "hypocrisy" because it prevents players from being compensated for the commercial use of their names, images and likenesses, while doing very little to protect them from being commercially exploited, which the NCAA says is at the core of amateurism.

At one point in his testimony, Emmert even told Isaacson, "You're focusing on the word 'hypocrisy' more than necessary."

"I began with the definition of amateurism, [which] includes protecting against commercial exploitation," Isaacson said after court. "Without that, there is no defense of amateurism. You can't just defend half of it and not the other half. That actually goes to the antitrust case because they're saying 'We need amateurism to be popular'. We're saying, 'Nonsense. You're a big, commercial, popular sport.'"

Emmert went as far as to say that providing players with payments for their names, images and likenesses would reduce college sports to nothing more than minor leagues, which aren't popular in America.

Isaacson called the analogy "silly" during an interview with reporters outside the courthouse.

"If you share name, image and likeness revenues, people are going to watch college football, they're going to watch the NCAA tournament and colleges are going to want to participate," Isaacson said. "The only thing that is actually hurting the popularity of your sport is the perception of hypocrisy that you are writing about in your own internal documents. They're writing that this is both a public perception that they're aware of and that they are concerned that it's true."

More than anything else, it was another bad day for the NCAA -- an indication that the judge who will decide the fate of the organization was considering the idea of pay for players.

When you add "great hypocrisy" and the "trust fund" to the judge's rejection of the idea that paying an athlete is "exploitation," you begin to think the trial is moving in a certain direction.