OAKLAND, Calif. -- We're three weeks into a trial that has the dramatic possibility of transforming the NCAA. We've chronicled how the NCAA seems to be losing the case, how the federal judge deciding the case often seems unknowledgeable about college sports, and how the star attractions might have been headline-grabbing witnesses but that they matter little to how the case will be decided.
The case is to wrap on Friday, with a decision from U.S. District Judge Claudia Wilken coming in August. As we slog our way to the end -- with no star witnesses left to testify -- it's a good time to revisit some of the basics and basic terms that have been part of Ed O'Bannon v. NCAA:
Amateurism: The NCAA insists that amateurism is one of its core principles. Its officials and lawyers insist its principal mission is to protect its amateur athletes. The problem for the NCAA is that the athletes might be amateurs, but collegiate athletics is not. The definition of amateurism changes as the NCAA modifies its rules.
Ellen Staurowsky, a professor at Drexel University who has studied college sports for decades, testified that there is "no coherent, consistent definition of amateurism." She described the NCAA as suffering from a "rolling commercialism." Amateurism has become more of a brand for the NCAA than its ideal. Despite numerous attempts from several witnesses, the NCAA's legal team has failed to show that amateurism is what the NCAA claims it is. The state of amateurism in the NCAA will be a major factor in Wilken's decision.
Body-bag game: This is the phrase that describes a team from a small conference playing a team from a major conference early in a season. The game is a sure loser for the little school, and there is the serious possibility of injury. It's a game like, for example, Appalachian State against Michigan. Whoops. The plaintiffs have been using these games as evidence that competitive balance is already askew in the NCAA, an argument NCAA lawyers have been making as a way of justifying the status quo. Paying players, the NCAA says, would give an advantage to big school competitively over small ones.
Cap: The monetary cap on payment to players for use of their names, images and likenesses is zero. It is difficult to see the zero cap as anything but a form of price-fixing that is a clear violation of antitrust laws. For the NCAA to win this case, it must show that the benefits of its zero cap outweigh the harm it causes. The benefits are supposed to include competitive balance and an increasing market for college sports. See also Integration.
Gold-plating: With the enormous income produced from football and men's basketball, many schools are building new stadiums and lavish athletic facilities. There is so much money that they must find ways to spend it. This term is used to describe the process of spending that money. The most dramatic photos in the trial have been of the new Alabama football facility, a stately pleasure dome that features crystal walls and deluxe player lounges that make a Four Seasons lobby look pedestrian. The term is used to counteract the notion that NCAA athletic departments don't make profits or all that much money.
Graduation rate: Graduation rates are like crime statistics. If you spend a little time with them, you can make them support any point you want to make. There are four different graduation rates that have been described in the trial: the federal rate, the GSR, the APR and the APC. The NCAA invests enormous resources in establishing the latter three of these rates. Don't ask what the initials mean; it just makes everything worse.
The NCAA's purpose is to show that graduation rates are improving and that the current system of student-athletes is working. Grades might be improving, but even with three different calculations of graduation rates, the NCAA does not compare athletes' graduation rates with the rates of other students. And then there are those pesky numbers, such as a 9 percent graduation rate for Arkansas basketball players and a 39 percent rate for Razorback football players.
Inefficient substitution: This has nothing to do with a bungled line change in a hockey game. This is a term used by economists to describe what happens when the NCAA and the universities take in billions from football and basketball and pay the labor force -- the athletes -- nothing more than a scholarship. The athletic departments must spend the money somewhere, and they substitute huge coaches' salaries and lavish facilities for the money they would have spent on labor. The rest of us call it an arms race, but the economists who have testified call it "inefficient substitution." Using terms like "inefficient substitution" is an important part of earning your hourly rate as an expert witness.
Integration: Integration and education have a rich and important history in America. But the use of the word in this trial is different. For the NCAA, this is the most important word. It describes the NCAA idea of the "student-athlete" as integrated into the academics of the school and enjoying the benefits of higher education. If the athletes are paid, the NCAA argues, the athletes will be isolated or "island-ized" and separated from the values and benefits of the school's academic program. If Wilken believes the NCAA's claim that allowing pay to the players will prevent their integration into the school, she will rule for the NCAA.
Let's move on: At least a half-dozen times each day, Wilken issues this order to a lawyer questioning a witness. The judge is worried that the lawyers will not finish the trial by Friday, the deadline she set weeks ago. Instead of parsing and arguing a difficult question to a witness, she will simply say, "Let's move on." Returning to the question after she gives the order to move on is not a good idea. Several of the lawyers have learned this lesson the hard way.
Life lessons: If you hear this phrase, you know you are listening to a coach or an athletic director or a college sports official. They cannot help themselves. When they start talking about the college athlete's experience, they turn a little misty and talk about the life lessons that are part of the players' experiences. More than a dozen times in the trial, athletic officials have told Wilken that college sports offer invaluable life lessons. The executive deputy commissioner of the SEC, Greg Sankey, on Tuesday told Wilken a story about his baseball coach and a life lesson learned when Sankey was not in the lineup. Sankey nearly broke down in tears. Wilken has not indicated any real interest the life lessons of a college athletics program.
Myth: One of the prevailing myths of college sports is that revenue from football and men's basketball pay for other sports and for academic facilities. Economist Roger Noll, after 40 years of study of the sports industry, testified that "basketball and football money is spent on basketball and football." He noted that money for women's sports increased faster in schools that do not play big-time sports. Commissioner Britton Banowsky of Conference USA, who reports to 16 college presidents, said he "wished college presidents would show some discipline and spend the money on academics instead of coaches and athletic facilities."
Pilson, Neal: This guy was the NCAA's first witness and its best witness. Using his 40 years of experience making television deals, Pilson was charming and persuasive as he told Wilken that college athletes had no rights to sell to television networks that were broadcasting their games. The NCAA's best hope of any victory is based on Pilson's testimony. If he is right (and he might be), then the O'Bannon group would collect nothing for television broadcasts and rebroadcasts.
The group would be left with its claim for commercial use of its names, images and likenesses, an outcome the NCAA could accept. The NCAA lawyers are more worried about the television claim than they are about names, images and licenses claim. That loss would be a cost that the NCAA could absorb without major difficulty.
The players' answer to Pilson came from Edwin Desser, another television dealmaker with decades of experience. Desser, whose work was in professional sports with unions representing players, did not seem to have a real grip on how televising non-union, collegiate athletes who may end up with a licensing deal could work.
Provocateur: One of the most powerful pieces of evidence for the players was an email Wally Renfro, a former NCAA executive, sent to Mark Emmert as Emmert became president of the organization. In the email, Renfro said, "The notion that athletes are students is the great hypocrisy of intercollegiate sports." The "great hypocrisy" statement is a serious problem for the NCAA. In a lame attempt to try to reduce its impact, Emmert testified that Renfro was a provocateur, someone who simply liked to raise a little hell on the organization's meetings and did not speak for the organization.
For a generation of journalists who have reported on the NCAA and listened to Renfro, it was a tough sell. In his day, Renfro was one of the better spokespersons for the NCAA.
Remain seated: As the court opens each morning, the clerk loudly issues this order to the assembled crowd. The judge is in such a hurry to finish the trial that she won't waste even a minute on the customary "All rise!" proclamation as the judge enters the courtroom and another few seconds as everyone sits. Even before she has taken her seat, she orders the lawyers to start on the next witness.
SCORE: This has nothing to do with points on the field or on the court. It's an acronym for the Study of College Outcomes and Recent Experiences, an NCAA effort to gauge the experiences of college athletes. The study showed that 82 percent of more than 2,000 athletes who were surveyed were satisfied with their overall college experiences, and 69 percent were satisfied with their academic experiences. No one asked the NCAA official who described the survey whether O'Bannon and the others in his group were part of the survey.
Three-ring binder: Along the walls of the courtroom are more than 100 three-ring binders. These are not the three-ring binders you used in school. The rings are four inches in diameter, and each one weighs a couple of pounds. They contain the thousands of pages of documents that have been used in the trial. The amazing thing is how the paralegals for each side are able to go the right binder and find the relevant document in a matter of seconds. Their work is frequently more impressive than the lawyers' work.
$29.95: This is the price of a Jameis Winston "rookie card" on the Florida State website. The attorneys for the players used it as an example of the exploitation of college athletes' names, images and likenesses. They used another example on Tuesday, an action shot of Stanford quarterback Kevin Hogan offered on the Stanford website for $120. None of the money goes to Winston or Hogan. It's exactly what O'Bannon was talking about when he filed his lawsuit. If the players win, then Winston, Hogan and other players would be able to negotiate for a share of the sale price.
Vacarro, Sonny: The most interesting guy at the trial who cannot testify. Vacarro is the legendary sports marketer who invented the idea of paying coaches and players to wear shoes and apparel. He signed Michael Jordan for Nike and changed everything. He was the centerpiece of the seminal Taylor Branch article in The Atlantic in October 2011 that featured his late-in-life efforts to reform the NCAA. He's the instigator of this lawsuit, and he expects the lawsuit to change everything. He has attended the trial every day. He has the best stories and ideas of anyone in the courtroom. He is certain, for example, that LeBron James will return to Cleveland to play with Kyrie Irving and the soon-to-be-drafted Jabari Parker to win a championship.
Saepissime Mendosus Sed Haud Dubitans: This ancient Latin legal maxim applies to many of the witnesses and the lawyers for the NCAA: "frequently wrong but never in doubt." Facing the increasing probability that they are totally wrong in their argument that the NCAA is legally justified in prohibiting payment to athletes, they display neither doubt nor concern. They pursue the same themes and repeat the same arguments even after the judge has indicated that she is no longer accepting what they say.