For 15 days of trial testimony and in hundreds of pages of legal briefs, Ed O'Bannon and his lawyers have tiptoed ever so gently in their discussions of what would happen if they were victorious in their battle with the NCAA.
If federal Judge Claudia Wilken in Oakland rules in their favor, they say, it would "allow players and former players to profit modestly off their own names, images and likenesses [NIL]." A victory in court would result in a "modest equal payment to players" or a trust fund that would be paid when their eligibility ends.
Looking at the same possibilities, the NCAA and its lawyers see disaster. Using the terms of current TV contracts and calculations from world-class economists, they say that a football player in the SEC would collect $325,000 over five years and a basketball player in the Pac-12 could collect $1.2 million in a typical career.
One of the NCAA's most impressive witnesses, Neal Pilson, the former president of CBS Sports, testified that "if we paid the players substantial sums, all will be lost." Other NCAA witnesses predicted that schools would leave the FBS and would abandon Division I basketball before they would pay their players. NCAA president Mark Emmert was serious when he said that a win for the players would mean "there would be no more national championships."
Within the next several days, Judge Wilken will decide whether the nation's antitrust laws require the NCAA to eliminate its ban on cash payments to football players and men's basketball players for use of their NIL in merchandise and in television broadcasts.
What will her decision be?
The judge has heard detailed testimony about billions of dollars in television contracts for football and men's basketball. Witnesses explained to her that there is no cap on coaches' salaries and that Duke men's basketball coach Mike Krzyzewski is paid $9 million per season. Others told her that pay for players is capped at zero. She was incredulous when she realized that coaches are paid for apparel and shoe contracts and that South Carolina football coach Steve Spurrier, for example, collects between $600,000 and $750,000 from Under Armour each season. Among the hundreds of exhibits used in the trial, she has a list of $5 billion in palatial athletic facilities that NCAA member schools have built in the past five years, including a $37 million dorm at Ohio State that one critic said could "qualify as a Four Seasons hotel."
It is hard to imagine that Judge Wilken, in her decision, is going to leave intercollegiate sports in the same condition as they were when O'Bannon and his lawyers filed the lawsuit in 2009.