Could the Ed O'Bannon v. NCAA case settle before the trial begins on Monday at 8:30 a.m. Pacific Time? A source close to O'Bannon tells SI.com on Saturday that the O'Bannon legal team is very skeptical of a settlement being reached, but does not rule it out. According to the source, the O'Bannon team "is open to discussions with the NCAA, even at this late hour." The source stresses, however, that there have been no recent conversations between the two sides and none are scheduled before Monday. "They haven't called us back," the source adds. The O'Bannon team believes the NCAA is simply not interested in settling and instead wants to roll the dice with U.S. District Judge Claudia Wilken, who would preside over the bench trial.
A settlement would make sense for both sides. The NCAA, for instance, could agree to change its amateurism rules so that college athletes can negotiate compensation with their schools and third-parties for the use of their name, image and likeness, and these athletes could do so without NCAA penalty. In exchange, O'Bannon might agree that the NCAA could phase-in changes over a period of several years, rather than immediately after the trial. O'Bannon might also concede some degree of oversight to the NCAA to regulate commercial negotiations for players' names, images and likenesses. Each side would obtain crucial benefits: the NCAA would gain valuable years to change rules that might dramatically impact schools' budgets and schools' compliance with Title IX, while O'Bannon would acquire the rule changes he seeks, albeit over a period of years rather than now. Each side could frame a settlement as a collaborative win for all of college sports.
A settlement would also avoid unexpected problems that sometimes occur during a trial. Prior to a trial, both sides are highly-confident, if not over-confident, in their arguments. But unforeseen and damaging crises occasionally arise during a trial. A witness for the NCAA, for example, might inadvertently reveal information that undermines the NCAA's "student-athlete" model. The media would surely pounce on the information and broadcast it widely. O'Bannon's side isn't immune to potential trial fumbles, either. Consider the possibility that when Ed O'Bannon faces cross-examination, he unintentionally expresses a view that is at odds with his lawyers' legal briefs. The O'Bannon case would suffer a set-back.
MCCANN: Ed O'Bannon v. the NCAA: A complete analysis before the trial
Assuming no settlement is reached, the trial will start on Monday with attorneys for O'Bannon and the NCAA delivering their opening statements. These statements will largely mimic the trial briefs submitted by each side and will explain their respective core arguments and anticipated defenses.
Following the opening statements, O'Bannon attorneys will commence their case-in-chief. SI.com has learned that, at this time, O'Bannon's legal team plans to call O'Bannon as the first witness to the stand. O'Bannon attorneys will then conduct a direct examination of O'Bannon. He will be asked about his collegiate and post-collegiate careers and will likely opine that he and other current and former college athletes should receive compensation for the use of their names, images and likenesses. He will also likely express that he never expected his consent for the NCAA to use his name, image and likeness would extend beyond his college playing days. NCAA attorneys will then cross-examine O'Bannon and try to get him to speak favorably about amateurism rules. They would relish O'Bannon admitting that these rules helped his learning in college and supplied him important life lessons, such as valuing discipline and hard-work. NCAA attorneys are also poised to ask O'Bannon about commercial influences, including sports agents, on his experiences while a student-athlete at UCLA from 1991 to 1995.
Fittingly, the sports trial of the century will begin with its namesake and the fireworks won't take long to launch. Unless, of course, a settlement is reached. The clock is ticking.
Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.