The class-action lawsuit challenging the National Collegiate Athletic Association’s limits on compensating student-athletes in top echelons of college football and men’s and women’s basketball got underway Tuesday in U.S. District Judge Claudia Wilken’s courtroom in Oakland, California.
For a case with potentially dramatic consequences—especially for schools among the ACC, Big Ten, Big 12, Pac-12 and SEC, the “Power 5″ sports conferences to whom the plaintiffs want to shift the burden for setting limits of player compensation—the trial will be short on trial theater and heavy on technical details. Both sides made opening statements in the bench antitrust trial via filings lodged with the court in the run-up to Labor Day weekend.
The plaintiffs’ team, which includes Hagens Berman Sobol Shapiro’s Steve Berman, Winston & Strawn’s Jeffrey Kessler and Bruce Simon of Pearson, Simon & Warshaw, fended off a defense attempt to knock the case out on summary judgment in March when Wilken found that they had produced “undisputed evidence” that student-athletes would be offered greater compensation and benefits during recruitment but for NCAA limits.
Wilken’s ruling has left the NCAA’s lawyers at Wilkinson Walsh + Eskovitz and Skadden, Arps, Slate, Meagher & Flom as well as the Pac-12′s counsel at Proskauer Rose and the Big Ten’s at Mayer Brown in a position where they must show that the limits on player compensation help drive consumer demand for college sports and create an atmosphere that helps college-athletes integrate into their school communities. Even if they carry that burden, defense counsel will have to show that those goals couldn’t be achieved through less restrictive NCAA rules or rule-making by the individual conferences.
Court papers show that the Birmingham, Alabama-based SEC is represented by Robinson Bradshaw & Hinson of Charlotte, North Carolina and the Seifert Law Firm of San Francisco. The ACC, based in Greensboro, North Carolina, is represented by Smith Moore Leatherwood lawyers from Charlotte and Greensboro and by Holland & Knight’s San Francisco office. The University of Georgia is in the SEC; Georgia Tech is in the ACC.
Wilken has set pretty strict ground rules for the 10-day bench trial that will play out in her courtroom off-and-on over the next month or so. Each side has 22 hours and 30 minutes to put on its case. Direct testimony has been filed with the court by declaration and cross-examination and follow-on questioning is being handled in open court. Tuesday’s proceedings started with one of the plaintiffs’ lead economic experts, Daniel Rascher, a professor and director of academic programs for the Sport Management Program at the University of San Francisco.
Proskauer’s Bart Williams pressed Rascher to concede that amateurism does play into consumer demand for college sports and helps differentiate it from professional leagues. But Rascher said that any effect amateurism had on demand was “de minimis.”
“The anti-competitive harms outweigh any pro-competitive justification that I’ve seen,” Rascher said.
Williams, however, seemed to undermine a point that Rascher made in his expert report—that non-athletes at Stanford University who write for The Stanford Daily can earn money writing, editing and selling ads for paper. Williams pointed out that the Daily’s website indicates that it has been independent from the school since 1973. Rascher said that his point in raising the paper was that other students can earn money while attending school, but he conceded that the fact that Stanford itself wasn’t paying the students meant the example “doesn’t go to that point as well as it would.”
But when Williams pressed a hypothetical that suspending the NCAA amateurism rules could lead some school to offer a prospective student-athlete $1 million—and potentially turn off fans drawn to its amateur nature—Rascher said that wasn’t likely.
“They won’t choose amounts that harm their own fan base,” said Rascher, adding that schools and conferences would act rationally in the wake of any change.
Jonathan Ringel of the Daily Report added the names of law firms for the SEC and ACC.