NCAA suffers latest blow with revealing emails introduced as evidence
OAKLAND, Calif. -- Attorney Bill Isaacson stood in front of the federal courthouse on a sunny Tuesday afternoon and smiled as he thought about the performance of the witness who had taken the stand a few hours earlier. "I found her very truthful," Isaacson said, referring to the testimony of Texas women's athletic director Chris Plonsky.
This would be great news for Plonsky and her side of the argument if Isaacson represented the NCAA. Unfortunately, he represents former UCLA basketball player Ed O'Bannon and a class of recent football players in an antitrust suit against the NCAA, which accuses the association and schools of engaging in a scheme -- through the NCAA's rules -- to fix the price of names, images and likenesses of FBS football players and Division I men's basketball players at $0. I apologize in advance for the continuous use of sports metaphors while covering this trial, but I'm a sportswriter, and the one in the next sentence seems especially appropriate. By calling Plonsky as a witness, the NCAA legal team served the plaintiffs a hanging curveball that their attorneys clubbed into San Francisco Bay.
It wasn't necessarily anything Plonsky said on Tuesday. She forcefully defended the NCAA's version of amateurism and described quite accurately how effectively the Texas athletic department not only rolls up hefty revenue ($165.7 million in the 2012-13 school year), but also plows a nice chunk ($9 million for the same period) back into the university to help fund academic programs. This is exactly why the NCAA's legal team called upon her to testify. But it was what Plonsky's presence on the stand allowed the plaintiffs to push information into the record that harmed the NCAA's case. It gave the plaintiffs' attorneys an opportunity to easily introduce evidence that proved NCAA and school officials have long been worried about the athlete name, image and likeness market that the NCAA's legal team is now claiming doesn't exist.
A few years ago during discovery, the plaintiffs' attorneys came across two sets of emails in which various school, conference and NCAA officials discussed the issue of name and likeness rights for college athletes. One was from 2008, and it involved an NCAA task force on commercialization issues on which Plonsky served. The other was from '09, and it involved a chain that included Plonsky, then-Big 12 commissioner Dan Beebe and Nebraska chancellor Harvey Perlman. Some of the contents of those emails leaked during the run-up to the trial as plaintiffs included snippets in various motions and depositions. But they wanted those entire emails included at trial so Judge Claudia Wilken could see them in full.
Without Plonsky on the stand, plaintiffs' attorneys would have had to find a more creative way to introduce those emails into evidence. By calling Plonsky, the NCAA gave those emails an express ticket into the court record. They'll be readily available in the transcript when this case gets appealed to the circuit court -- no matter which side wins. One set didn't actually have much to do with Plonsky, but the fact that she was copied on the original email gave the plaintiffs' attorneys an opening that they exploited to score another hit on the NCAA's credibility.
We'll start with Plonsky's email to Beebe on Aug. 1, 2009. The O'Bannon case had been filed, but it was in its infancy. When she wrote them, Plonsky probably had no idea her words would wind up on a video board in the courtroom.
"This is how I feel: if a [student-athlete] can sue the ncaa for these two things -- one of which (the ea sports [video] game) only uses school marks and names, not s-a names, then what's to prevent all players from suing us to get a piece of every broadcast rights fee -- since clearly we use their names and images in those telecasts?" Plonsky wrote. "If I were cbs and espn, I'd be staring hard at these cases and maybe not being too excited about a media rights re-up w[ith] the ncaa."
There's nothing necessarily wrong with the first part of that statement. It's actually quite prescient. That's pretty much exactly what happened. Of course, it's quite inconvenient since it acknowledges a market that the NCAA claims doesn't exist. The second part merely shows a lack of understanding of the network side of the media rights purchase equation. CBS and ESPN will pay what they will pay; it's up to the NCAA and schools to decide how they allocate the money after that.
Plonsky plowed ahead. Later in the email, she wrote this: "Has our ncaa board decided not to defend the notion that playing ncaa sports is not forced. (sic) It is a voluntary signup. We're like a version of the army."
Except for the fact that no one gets bombed, she's correct. Of course, Plonsky volunteers every day to serve as the Texas women's AD. No one forces her to do that, either. It hasn't stopped her from getting raises. In 2011, Plonsky's salary package rose from $305,848 to $355,848 -- not including a $62,500 bonus she would receive every year the Longhorns didn't commit a major NCAA infraction.
She wasn't done. Here's another passage: "I view these cases as a result of the entitlement attitude we've created in our revenue sports. We now have threatening s-a's (student athletes) -- many of whom, based on grad rates in the 80s and 90s, sucked a whole lot off the college athletics pipe -- and now want to buckle the system at the expense of today's s-a's."
Apparently, this entitlement attitude exists only in the revenue sports of football and men's basketball. Perhaps this is because the people who play those sports now realize they generate the money that pays for all the other sports and also the money that allows Texas to, as Plonsky put it on the stand, purchase the services of football coach Charlie Strong from Louisville in the form of a $4.375 million buyout. This might also be a good time to mention that the Texas athletic department has its own cable channel to help the Longhorns in the fight to protect their athletes from the evils of commercialization.
As tone deaf as Plonsky's email was, it didn't really address the issues of this case other than acknowledging the market. What makes it more useful to the plaintiffs is the fact that Beebe forwarded it to Perlman, and both men then acknowledged the existence of the same market. Beebe and Perlman each tried to divine how athletes could be used to shill products without paying them for it. "If we mean an ad that features an SA that says: 'The NCAA and Coca Cola want you to know that 95% of the student athletes will go pro in something other than sports,' I'd probably be fine," Perlman wrote. "That, in my view, is public service advertising like done on public television."
Except for the fact that it would be an ad for Coke. And the star of said ad wouldn't be compensated for his role in it. But other than that, it's exactly like a PBS pledge drive.
The second set of emails began with a missive sent to the members of the NCAA's commercialism task force on Dec. 8, 2008 by Iowa professor Elizabeth Altmaier, who at the time served as the Hawkeyes' NCAA faculty athletic representative. Altmaier's email discussed the format of the task force's report and made some content suggestions. It gets interesting near the end.
"I also think the likelihood of a student-athlete not approving his or her own image use is low. Student-athletes don't have much discretion as it is, and they sign these 'release' forms in a single meeting with literally a stack in front of them," Altmaier wrote. "Also, if competition footage is used, the release isn't as clear a question as if a single image is used.
"And I remain committed to the idea of having some return (financial) to the student athletes themselves. Falling short of at least suggesting that, especially since we are 'running up the flagpole' some other ideas, is a mistake, I believe."
So, a member of an NCAA task force suggested that the idea of paying athletes for using their likenesses should be presented to the membership at large. What happened? At 3:10 the next morning, then-Penn State president Graham Spanier, the task force's chairman, fired off an email to NCAA president David Berst. "For the record, Dave, I disagree strongly with her idea that we compensate athletes for the use of their images," wrote Spanier, who is currently awaiting trial on perjury charges in connection with the Jerry Sandusky case. "I wouldn't put this in the report at all -- not even a hint of the possibility."
These were some awfully high-level discussions about a market that supposedly doesn't exist. The fact that Spanier, long one of the NCAA's pet presidents before his ouster in the wake of the Sandusky scandal, scuttled any further discussion of paying for likenesses seems awfully defensive considering the NCAA now contends those likenesses have no value whatsoever.
Without Plonsky's appearance on Thursday, Wilken and the other federal judges who will pick up the case after she rules might never have known all those discussions took place. Thanks to the NCAA legal team's decision to call Plonsky, they will. And they'll probably wonder why everyone seemed so darn worried about an allegedly nonexistent market.