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The legal importance of fan interest in the O'Bannon trial

OAKLAND, Calif. -- “Do you support paying college athletes?”

This question drove Wednesday’s hearing in the O’Bannon v. NCAA trial. The NCAA contends that multiple surveys between 2001 and 2014 reached the same statistical conclusion: most college sports fans and most Americans are categorically opposed to paying college players. O’Bannon's team, however, maintains the question of paying college athletes isn’t what their case is about and that survey data on this question is irrelevant.

Crucial to the NCAA’s defense is empirically proving that an O’Bannon victory would cause fans to lose interest. This relates to the NCAA’s argument under antitrust law that amateurism rules are “pro-competitive,” meaning they have a positive impact on the marketplace of goods and services. To prevail in the case, the NCAA must establish that amateurism rules are more pro-competitive than anti-competitive. 

The NCAA contends amateurism rules indeed enhance the marketplace. Without amateurism rules, various economic harms to college sports would purportedly arise. For instance, some colleges might cut sports programs in response to increased costs. Colleges might also encounter heightened difficulty when integrating athletics and academics, and safeguarding against corrupt practices by agents and boosters. Several NCAA witnesses, including Conference USA commissioner Britton Banowsky and SEC executive associate commissioner Greg Sankey, recently testified to these points. 

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Dr. J. Michael Dennis, a survey expert, was the NCAA’s key witness for empirically measuring the potential fan impact of O’Bannon winning the trial. Last year the NCAA commissioned Dennis to measure how paying college athletes would alter college sports fandom. He received 2,455 responses and reached several findings in his study entitled “Public Opinion About Paying Student Athletes.”

At their core, Dennis’ findings indicate fans would be greatly disappointed if college athletes were paid and many fans would shift their time, energy and dollars to other endeavors. For instance, 69 percent of Dennis’ respondents expressed they’d probably stop going to games. He also determined that if "star" college players were paid more than other college players, 73 percent of the public would identify "less fairness in balance of competition" in college sports. Dennis also found that if college athletes were paid $20,000 a year, 38 percent of the U.S. public would be less likely to view or attend college games. The percent rises to 47 percent and 53 percent when the proposed pay increases to $50,000 and $200,000, respectively. Collectively, these numbers cast a dark light on how fans would regard compensating Division I men’s basketball and football players.

Dennis seemed aware of the potential perception of bias from the NCAA having commissioned his study. To counter any allegation of being a “hired gun,” Dennis stressed that his findings match those of independent studies — including by Gallup and the Washington Post — which identify the same widespread opposition to paying college athletes.

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Attorneys for O’Bannon took sharp aim at the Dennis study. They asserted the study is irrelevant for purposes of the legal issues in O’Bannon’s lawsuit. Most significantly, the attorneys questioned why Dennis did not ask respondents about whether they favor or oppose the specific change sought by O’Bannon: student-athletes being able to negotiate compensation for the sale of their name, image and likeness in jerseys, video games and television broadcasts. Instead, Dennis asked respondents about their views on “paying athletes.” As O’Bannon’s attorneys stressed, “paying athletes” is an ambiguous expression. It could entail various types of remuneration, such as salary, gifts and trusts, and could reflect compensation for labor or for intellectual property rights. O’Bannon’s attorneys reasoned there is no way of knowing how survey respondents interpreted “paying athletes” when they answered Dennis’ questions. In his defense, Dennis argued that fans and the public might struggle to understand “name, image and likeness” in a survey question. He further insisted that asking about name, image and likeness in the absence of “clear and intelligible” questions would have jeopardized the survey results.

“'How you would feel if a player got compensation for being on a jersey,'” and, “'How would you feel if a player is paid $200,000'” are “'two totally different questions.'”

In another attempt to discredit the Dennis study, O’Bannon called Hal Poret, a survey expert, to the stand. Poret agreed with Dennis that consumers are unfamiliar with the concept of name, image and likeness, but added, “that is exactly why it is problematic to ask about paying money since [respondents] will be answering the wrong question.” Poret illustrated why Dennis’ study may be problematic. He described, “How you would feel if a player got compensation for being on a jersey,” and, “How would you feel if a player is paid $200,000” as “two totally different questions.” Poret added that all-inclusive phrases in other surveys have led to “exaggerated, meaningless results.” For instance, a majority of respondents saying they oppose “government paying healthcare” doesn’t indicate that a majority opposes the government paying to vaccinate children, administer flu shots and other forms of government-subsidized healthcare. 

Lastly, Poret dismissed Dennis’ concerns about college football fans losing their fandom as contrary to human behavior. Poret noted that sports fans expressed similar threats during work stoppages in Major League Baseball, the NBA and the NFL but fans nonetheless returned. Poret also mentioned that despite large public opposition to the eligibility of paid professionals in the Olympics, the Olympics have become more popular in recent years.

NCAA attorneys were less than impressed with Poret and his brutal putdown of Dennis. On cross-examination, NCAA attorney Carolyn Hoecker Luedtke framed Poret as something of an armchair quarterback. She emphasized that Poret had not conducted his own surveys, interviews or other tests on college sports fandom, nor had he studied how changes in amateur rules would impact fans’ attitudes and preferences. Poret acknowledged that he had not conducted his own studies, but regarded such a critique as a red herring from the alleged flaws he identified in the Dennis study.

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The demise of college sports video games

Toward the end of the day, Dr. Lauren Stiroh, an economist and expert on antitrust law and intellectual property, testified for the NCAA. Her testimony stressed several key points. Foremost, Stiroh asserted that the relationship between student-athletes and the NCAA and colleges is an educational one and does not contemplate name, image and likeness. She also insisted that O’Bannon has failed to show that the marketplace for college sports is in any way harmed by amateurism rules. To advance that point, Stiroh highlighted an absence of evidence that there are fewer college sports programs, student-athletes or game broadcasts because of amateurism rules. This was an important line of argument, since it potentially weakens O’Bannon’s theory that amateurism rules cause antitrust injury.

Stiroh also addressed a topic of great interest to many sports fans: college sports video games. For years, Electronic Arts annually published NCAA Basketball and NCAA Football, but EA has dropped those games in the wake of litigation over NCAA amateurism rules. Stiroh acknowledged that NCAA amateurism rules prevent EA from buying the names, images and likenesses of student-athletes, and that such a prohibition denies consumers of college sports games. Stiroh, however, questioned whether the prohibition indicates antitrust harm. She stressed that EA publishes a wide-range of video games — from FIFA to Titanfall — and can buy other intellectual property to make best-selling games. Along those lines, Stiroh questioned whether evidence exists that a sufficient number of consumers regard EA’s college games as essential. Stiroh added that O’Bannon’s top economist, Dr. Roger Noll, admitted in his testimony earlier in the trial that he “did not analyze the market for video games.” This exchange led to an interesting moment. U.S. District Judge Claudia Wilken asked Stiroh about the video game Just Dance and wondered whether it represents an adequate substitute for NCAA Football and other EA college games. Stiroh acknowledged Just Dance is a completely different kind of game, but still one of interest to consumers.

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.