Emmert: Star attraction in court
NCAA president will draw attention in court, but other witnesses more important
OAKLAND, Calif. -- NCAA president Mark Emmert will be the star attraction Thursday at the Ed O'Bannon v. NCAA antitrust trial that is entering its ninth day in federal court.
But Emmert will not likely end up the trial's star witness. No, that honor will go to other lesser-known experts whose testimony will have a much larger impact on whether collegiate players will end up being paid for the commercial uses of their names, images and likenesses.
Emmert's testimony is sure to be dramatic given the lawsuit seeks nothing less than the transformation of his organization. It will be the latest in a series of dramatic developments and crises that have marked his NCAA tenure.
His trials and tribulations began only eight months after he took office in November 2011, when he imposed severe and unprecedented sanctions against Penn State University in the Jerry Sandusky child-sex abuse scandal. Emmert's actions on Penn State remain entangled in litigation, and he has faced a storm of other lawsuits, legislation in the U.S. Congress seeking benefits and pay for players, and the surprising and thus far successful attempt by Northwestern football players to form a union.
In the face of this onslaught, Emmert has led several efforts to modify the rules governing college athletes, but none of them had been enacted by the time the O'Bannon trial began last week.
Emmert has maintained a relatively low profile since the Penn State sanctions issue blew up. He's not often been alone and in position to face tough questions, but he will be on Thursday. He will be the 14th witness in the trial and the fifth called by the NCAA. He will start his day in court with questions from Glenn Pomerantz, the leader of the NCAA legal team.
NCAA spokesman Bob Williams said Wednesday: "He's obviously going to talk about how he views the value of intercollegiate athletics in the current model. I think he'll make note that there's change that needs to happen and we've been in the process of trying to institute that change."
It is expected, too, that Emmert will add his support to the NCAA's previous evidence that paying players would separate the athletes from their fellow students and eliminate some of the most important benefits of a higher education. The NCAA has already presented testimony from the women's athletic director at Texas, the president of the University of South Carolina and the athletic director at Stanford, each describing their efforts to ensure that athletes are "integrated" into the campus from the moment they arrive until they graduate.
The integration of athletes into the academic life of the university is, according to the NCAA lawyers, the justification for its bar against any payments to the athletes. Integration allows them to focus on education. Payment beyond their scholarships would change the focus to money, the NCAA insists. If U.S. District Court Judge Claudia Wilken agrees with the NCAA's assertion, it would prevent the players from using antitrust law to force the NCAA to allow them to sell their names, images and likenesses.
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When Pomerantz has concluded his examination of Emmert, the NCAA leader will face cross-examination from players' lawyer Bill Isaacson, who already has distinguished himself in the trial as a formidable advocate. A member of the firm of Boies, Schiller and Flexner, a litigation powerhouse, Isaacson recently won a $162 million judgment in an antitrust case against a group of Chinese companies selling their products in the U.S.
In a 2012 deposition for a different case, Emmert sparred with lead O'Bannon attorney Michael Hausfeld, whose questions prompted 65 objections from the NCAA legal team.
Hausfeld said of Emmert's likely testimony on Thursday: "I expect you'll hear the company story, how whatever it is he defines as amateurism -- which in the past he has confessed that he cannot define -- is some principled notion that must be sacredly protected."
Isaacson will confront Emmert with a host of documents that will shed doubt on the NCAA's definition of amateurism and the isolation and "islandization" of football and basketball players.
Isaacson would ordinarily be limited to the subjects raised by Pomerantz in his questions to Emmert, but Wilken ruled earlier that Isaacson would be permitted to ask Emmert about anything and everything. The ruling came as the two sides battled over Emmert's testimony.
As a result, Isaacson will be able to ask Emmert about his reform efforts and will be able to show that there is nothing absolute about "amateurism" or about the principles governing "student-athletes." He will be able to show, for example, that while the NCAA lawyers were stonewalling the players' attempts to liberalize the rules, Emmert and his committees and task forces were thinking about many of the things the lawyers said were impossible.
As the leader of the organization that is under fire in the trial, Emmert is an important figure. But his testimony will not be critical to Wilken's ultimate decision.
Roger Noll, a retired Stanford economist, established a solid base for the players on all of the requirements of an antitrust case in 2½ days of testimony last week. Neal Pilson, the former president of CBS Sports, established for the NCAA the serious doubt about players' rights to television revenue. And Daniel Rubinfeld, a professor of law and economics who has published a textbook on the issues in the case, will offer testimony for the NCAA next week that responds to Noll.
Emmert's appearance will fill the courtroom with media and onlookers, but when Wilken makes her decision, she will look to the testimony of Noll, Pilson and Rubinfeld.
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