Sunday, June 15, 2014

Antitrust, repugnance and expert testimony in NCAA case

My colleague Roger Noll gets top billing in this story about the courtroom plays being executed in a trial that touches on whether paying college athletes is repugnant: O'Bannon economist may be MVP

OAKLAND, Calif. -- The big names in the lawsuit against the NCAA are Ed O'Bannon, Oscar Robertson and Bill Russell, but the key to the plaintiffs' attempt to transform the NCAA is a 74-year-old economist named Roger Noll who has studied the sports industry for more than 40 years.
The tall and scholarly Stanford professor emeritus already has testified for nearly eight hours and will return for more on Wednesday before U.S. District Judge Claudia Wilken. Noll's job for the players is to convince Wilken that the NCAA's refusal to allow college athletes to sell their names, images and likenesses is a violation of American antitrust laws.
Relying on exhaustive research and extensive experience testifying in court as an expert witness in antitrust trials, Noll must be able to show that the NCAA is using its stranglehold over college sports to deprive current and former college athletes of their fair share of the money produced by sales of live broadcasts of games, rebroadcasts, video games and other merchandise.
Noll has already shown that the NCAA's restrictions that prevent athletes from selling their names, images and likenesses limit competition in recruiting high school stars (the colleges cannot offer payment to the athletes for use of their names and so forth). He also has shown that the restrictions "distort the industry" and push huge revenue from football and men's basketball into coaches' salaries and palatial facilities.
He also responded on Tuesday to the NCAA's claim that the restrictions on athletes enhance "competitive balance" among NCAA teams by showing, with a compelling chart, that there has never been competitive balance in major college sports and that a small number of schools dominate top 25 lists and national championships.
Noll's research for his testimony is impressive. In a chart that demonstrated the current level of competition for high school stars, he showed the outcomes of recruiting efforts in football and basketball for the five power conferences and Notre Dame. According to Noll's research, for example, the Irish succeeded in 11 out of 17 attempts in 2012 to recruit four- and five-star high school athletes.
During the pretrial stage of the O'Bannon litigation, Noll prepared 750 pages of reports and testified in a pretrial interrogation that went on for four days and filled more than 1,500 pages.
Noll is no stranger to the courtroom. He was the star witness for the NFL Players Association when the players used antitrust litigation to establish free agency. Noll's testimony in a federal court in Minneapolis in 1991 was the key to a verdict from a jury that the NFL's restrictions on player movement violated antitrust laws.
This is not his first time in Wilken's courtroom, either. He testified before Wilken for the winning side in an antitrust trial involving HIV drugs.
The NCAA is responding to Noll's expertise with a cross-examination that began Tuesday and with its own economists, including James Heckman, a Nobel Prize winner from the University of Chicago. The NCAA's principal witness against Noll will be Daniel Rubinfeld, a professor at New York University. Noll and the O'Bannon legal team have already started their attack on Rubinfeld, offering excerpts from a Rubinfeld textbook that admit that the NCAA is a cartel, the first step in any antitrust trial.
Rohit Singla, the NCAA attorney assigned to the cross-examination of Noll, did not make much progress on Tuesday, with Noll repeatedly suggesting that Singla's questions were "vague and based on facts that do not exist."
Singla and the NCAA insist that the players have no ownership of their names, images and likenesses that would permit them to bargain for a share of television broadcasts. All ownership, the NCAA says, resides with the schools, the conferences and itself.
If the NCAA is correct and the players have nothing to sell, it remains unknown why the NCAA would restrict the players from selling what they have no right to sell. It's a question that Noll may address as he continues his testimony on Wednesday.
O'Bannon, Robertson and Russell were highly successful in competition on the basketball court, but Noll's testimony on economic competition in a courtroom will determine the fate of the NCAA's current way of operation.

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