There are a great many things in this world that are complicated. Fixing a car, for instance, will always involve a great deal of black magic and skills that can only be found in a vanishingly small elect of horrifyingly hirsute types. The hairier the mechanic the better, my mom never said.
Quantum mechanics, french pastry, the resurgent popularity of men’s tank tops. These things are complicated and hell if I can explain any one of them to you. Ours not to reason why; ours to buy a nice little house in Westchester, sock away a little for retirement, eat more roughage.
Compared to these things, law is piece of cake. Which is why coverage of Ed O’Bannon’s lawsuit against the NCAA is a bit confused. Rather than tackling the key question, whether the NCAA is ten pounds of crap in a five pound bag, commentators are wading into the murkiest depths of antitrust law. This is wrongheaded.
Let me explain…
I THOUGHT WE WERE IN THE ANTITRUST TREE
Any lawsuit against the NCAA must genuflect to the reality of our legal process. It must be chock-full of the formalities, filings, and jargon-heavy gobbledygook that is the legal profession’s trademark. A kind of condescension and mystery that is necessary to convince others that lawyers hold real value.
In Ed O’Bannon’s case, this means rooting your argument against the NCAA’s depraved machinery in a thick layer of antitrust law and economic analysis. Lester Munson’s report this week reads like an economic Ouroboros, a shit circle unbroken:
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.
Listen, if you’re looking for meaning, you won’t find it in this confusing patchwork of claims and counterclaims. The idea that this testimony will lead to an epiphany for the judge presiding over Ed O’Bannon’s lawsuit is sheer lunacy. If the absurd theater that is a typical lawsuit led to capital ‘T’ Truth, we’d see the process replicated in every other field. But it does not and we do not. It’s a formality in the strict meaning of the word.
Which makes it sad when an otherwise astute observer like Stewart Mandel defers to the complicated stuff in mentioning former Alabama wide receiver Tyrone Prothro’s testimony this week. The football player famous for “The Catch” and a gruesome injury that prevented him from making a dime based on his athletic gifts testified that he still carried student debt and that he was told by Alabama that his own image was controlled by the school. If he wanted to include pictures of himself playing for Alabama in a book he was writing, he’d have to cough up 10 dollars like everyone else. After covering all of this, Mandel wrote:
Either way, the plaintiffs ultimately have to prove far more than the identity of a video game image to demonstrate that the NCAA is a price-fixing monopoly, which is why most of the witnesses over the next three weeks will be economists and television executives, not former power forwards and wide receivers.
Still, there’s no predicting which moments in the trial will ultimately sway Wilken’s decision. One could well be the story of a fallen football star having to pay $10 for his own picture.
Hopefully, Mandel will follow his gut instinct here. Whether or not the bulk of this trial is taken up with interminable discussions of cartels, monopsony, and the Chicago School of Economics is complete and utter window dressing. O’Bannon et al. have met their burden simply by getting this far and verbalizing their arguments. The complicated stuff, thus, is a wash. The judge will rely on it to announce her verdict, but it will be mere pretextual stuff. She can use it to decide either way.
No, what will be determinative will be stories like Prothro’s. Somewhere in the recesses of Judge Claudia Wilkin’s reptilian mind is a moral judgment. She will decide whether the NCAA is as horrible as we all know it to be. Perhaps this will be hedged by a fear of what will follow the NCAA’s demise. Either way, Judge Wilkin will be making a policy decision. Because of course she will.
You don’t need to believe in some kind of Gladwellian tipping point to see that the NCAA and its sham notion of amateurism is running out of time. The courts will serve merely to memorialize this change. Unwind the corruption in an orderly fashion.
And somewhere, Charles O’Bannon will do whatever it is that Charles O’Bannon is doing right now.
A BRIEF HISTORY OF ANTITRUST AND SPORTS