NCAA fumbles cross-examination in O'Bannon trial
OAKLAND, Calif. -- Ellen Staurowsky looked a tad perplexed on Monday when Luis Li handed her his smartphone. Staurowsky, a professor of sports management at Drexel University, had come to the Bay Area to testify in a federal case about the NCAA's rules. Given that the plaintiffs, who are suing to relax the NCAA's rules on athletes cashing in on their fame, had called her to the stand, and given the fact that she once co-authored a paper on the topic titled "The $6 Billion Heist: Robbing College Athletes," it wasn't difficult to ascertain where she stood on the subject. So, Staurowsky probably didn't anticipate an attorney for the NCAA giving her a portable telecommunications device in open court.
Li, a partner in the Los Angeles firm of Munger, Tolles & Olson, handed her the phone in the midst of a lengthy preamble to his cross-examination of Staurowsky, who had just spent three mind-numbing hours of direct examination explaining why players in FBS football and Division I men's basketball are athletes first and students second -- despite what the NCAA says. She had used some of the NCAA's own studies to show that schools in FBS lower their admissions standards for athletes far more than schools in less lucrative divisions and subdivisions. She had explained the concept of "clustering" -- how large groups of athletes in revenue sports tend to end up in the same major. She had related how coaching salaries had skyrocketed. Basically, Staurowsky talked about what she has written about, which is that big-time college sports look exactly like professional sports except in the area of player compensation, where the rules are made by the schools and enforced by the NCAA. Li had handed Staurowsky the phone with the hint that Staurowsky would later need to use the calculator on the phone for some computation. The implication seemed to be that Li would put to the test some of the numbers cited by Staurowsky.
Then Li proceeded to tear apart Staurowsky's qualifications.
Was she an economist? No. Was she a forensic accountant? No. Was she a lawyer? No. Had she ever negotiated a player contract in professional sports? No. Was she an expert on stadium financing? No. Had she ever run a Division I athletic department? No.
The diminutive Staurowsky, whose voice is even tinier than she is, shrank from the questions. She had struggled with the stage-managed queries asked by the plaintiff's side. Now her expertise was under attack by the opposition. Li kept pushing. For 40 solid minutes, Li made a case for why Staurowsky wasn't an expert without once challenging any of the alleged facts she had presented. The phone bit had to be coming soon. That had to be the hammer.
The jury would eat this stuff up. Except for one problem. There is no jury in O'Bannon v. NCAA. There is only Judge Claudia Wilken and the circuit court judges -- and possibly U.S. Supreme Court justices -- who will actually decide the case. And that's why, after the mouse roared, the NCAA's attorneys had to hang their heads. During another round of questions designed to batter her credentials, Staurowsky stopped Li and asked what any of this had to do with the case. Before Li could answer, Wilken chimed in to agree with Staurowsky. A jury might not have seen through the attempt to discredit the witness while leaving the facts unchallenged, but Wilken did.
That's the problem for Li and the other attorneys for the NCAA, who are presumably being paid far more than tuition, room and board to defend the business model of major college sports. They can only do so much. On Monday, the plaintiffs attacked the NCAA's very purpose, which sounds noble in theory but is rendered meaningless by lucrative TV deals, massive coaching contracts and luxurious facilities. Here is that purpose as outlined in the NCAA's Division I manual: "A basic purpose of this Association is to maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body and, by so doing, retain a clear line of demarcation between intercollegiate athletics and professional sports." Li and his colleagues were tasked with defending the association from Staurowsky's attack because the interweaving of academics and athletics is essential to the NCAA's defense, even though no one on the NCAA side can explain exactly why allowing athletes to profit from their likenesses would harm their academic pursuits.
Li and his colleagues couldn't counter with facts on Monday. They could only hold the lipstick and ask the pig to stand still while they apply it.
Basically, they are trying to convince Wilken that FBS football and Division I men's basketball -- sports that networks will pay combined rights fees in the billions to broadcast -- are mere hobbies. That's what college sports are called in the NCAA Division I manual under the heading "The Principle of Amateurism": "Student-athletes shall be amateurs in an intercollegiate sport, and their participation should be motivated primarily by education and by the physical, mental and social benefits to be derived," the manual's authors wrote. "Student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises." Some high-priced attorneys are doing their damnedest to make a judge believe that athletes need to be protected from money, but they're having an awfully hard time explaining why. They contend that the NCAA's rules are pro-competitive because they foster competitive equity. After Monday's proceedings, NCAA chief legal officer Donald Remy said an athlete getting a million dollars might impact the integration of education and athletics. I asked Remy how having a million dollars -- which obviously is far more than what most athletes would get -- would affect the education an athlete receives. "It might entirely change their reason for going to the institution," Remy replied.
Oh. So Remy is suggesting that if players are allowed to accept some sort of financial consideration for their name, image and likeness rights, players might not make education the sole basis for their school selections. In other words, the top football recruits might choose schools based on football. Quick, someone call Duke coach David Cutcliffe and warn him that if the NCAA loses this case, he's going to lose all those blue-chippers to Alabama and Ohio State. Wait. The blue-chippers already go to Alabama and Ohio State?
They aren't going to those schools because football is just a hobby, either. Though they often don't realize the percentages are against them, many players at that level choose a school based on their perception of the program's ability to help them get to the NFL or the NBA. It is their job, and players and coaches schedule accordingly. In an email to incoming NCAA president Mark Emmert in October 2010, then-NCAA vice president Wally Renfro proved NCAA officials know the idea of big-time college sports as an avocation is pure fantasy. "We have a wink-and-a-nod approach to voluntary activity," Renfro wrote, referencing the mandatory nature of voluntary workouts in various sports. Michigan's football program was investigated several years ago after former players accused Rich Rodriguez and his staff of violating the NCAA's 20-hour rule, but Rodriguez and company weren't doing anything their competition wasn't. Playing a sport at a Division I college is a job, and in football and men's basketball, that labor generates a lot of revenue.
The players want more of that revenue. The NCAA contends it will sully their education if they get it. Maybe on Tuesday, when Li and his colleagues continue their cross-examination of Staurowsky and then begin calling their own witnesses, they can finally explain why. Because Wilken didn't seem impressed by their questioning of Staurowsky's credentials or by whatever gimmick Li had planned with his phone.
After concurring with Staurowsky, Wilken adjourned the court for the day. Michael Hausfeld, the lead attorney for the plaintiffs, walked outside toward the elevators. As he waited for the doors to open, he spoke. "I wonder if she ever gave him his phone back," Hausfeld said.