O'Bannon trial: In defending NCAA, Jim Delany also helps plaintiffs

OAKLAND — One of the most powerful men in college athletics was expounding on part of his vision for reform. Jim Delany spoke, as he has in other forums, of returning balance to the lives of college athletes, setting them free for extracurricular activities, internships and the ability to spend a semester studying abroad.

"For example," the Big Ten commissioner said Friday, "when the basketball season is over, we probably ought to just put a lock on the gym. If (the players) want to play they should just go to a playground and go play, but they don't need to be with our coaches for a month or three weeks. … I'd like to see us carve out areas, because I don't think the (current time demands) allow for enough of those types of experiences."

Delany had taken the stand to help defend the NCAA. This was direct examination. He was under oath saying exactly what he believed.

But in that moment and so many others Friday, the plaintiffs in the Ed O'Bannon case saw his testimony as extremely helpful.

"He provided all the information that we wanted to bring out in cross-examination (in the direct examination)," said Bill Isaacson, one of the plaintiffs' attorneys, " ... so it was our witness."

As the second week of a trial that is scheduled for three drew to a close, the plaintiffs seem to have momentum. Delany followed NCAA President Mark Emmert, who began testifying Thursday and finished up Friday morning. It was mostly more of the same, Emmert and Isaacson sparring over meanings of words and phrases, whether Emmert and other NCAA officials believed they had a problem with commercialism or "professionalizing" of athletes — and what they had or hadn't done about it.

At one point, Isaacson pulled up Florida State's official school website, clicked through to the section where merchandise was for sale and typed in "Winston." Up popped a trading card with Heisman winner Jameis Winston's photograph. On Oregon's website, Isaacson noted the prominently displayed opportunity to purchase a Ducks football jersey, No. 8.

"You probably didn't know Mr. Mariota is No. 8?"

Emmert's reply: "I'm a (Washington) Husky — so no, I probably didn't."

Isaacson also took Emmert on a virtual tour of posh new athletic facilities. It was part of the plaintiffs' continuing attempt to show that although the NCAA touts the integration of athletics and academics as an essential part of college sports — "it separates us," Delany said, "from the NBA and the NFL" — athletes already inhabit a class by themselves on most campuses.

In the end, how people viewed the testimony of Emmert and Delany probably still comes down to which presupposition they brought into the courtroom. What matters is what U.S. District Judge Claudia Wilken will think when the trial is finally finished.

On some levels, Delany, the longtime Big Ten commissioner, seemed like a poster boy for the story of opportunity the NCAA would like to trumpet. He played basketball at North Carolina, attending college on a scholarship that consisted of "tuition, board, books and $15 a month for laundry." He said he considered himself an amateur, spoke of how all this time later he remains a proud Tar Heel, still wired into the rivalry with Duke. He came across as a true believer in the romantic vision of how playing college sports provides a "broad-based" platform for education and future success.

Even as he touted the Big Ten's success, financial and on the playing fields, he spoke of the Big Ten's "commitment to breadth of opportunity" in athletics and academics, and said the league gives $160 million annually in athletic scholarships. To pay players, he said — even to compensate them for the rights to the names, images and likenesses, which is the focus of the lawsuit — would fundamentally alter the relationship between the players and the schools, the fans and the schools, and so on.

But Delany is seeking to alter the relationship in some ways. Of college athletics' power brokers, Delany has been the most vocal advocate for changing the NCAA. His testimony Friday may end up as one of the greatest change agents to emerge from the O'Bannon case.

Delany called for reform that includes a 21st Century benefits package for student athletes, and spoke of how he had pushed to prevent commercialism. One moment came came in a letter written in 2010 by Delany to other NCAA Division I conference commissioners opposing proposed legislation he felt would have crossed a line by expanding "a commercial entity's ability to use the name, image and likeness of student athletes to promote is commercial endeavors."

Why, asked NCAA attorney Luis Li, did Delany oppose the idea?

"We just felt there was (already) a good bright line," Delany said, adding he was concerned it would have moved toward athletes directly endorsing commercial products.

Later in the letter, Delany noted a previous battle with the shoe company adidas, in which the NCAA successfully won the right to restrict logos on team uniforms, and quoted then-NCAA president Cedric Dempsey, who at the time said, "adidas has many other opportunities to get its message across to consumers other than on the backs of college players."

When the cross-examination began, lead plaintiffs' attorney Michael Hausfeld went right back to that letter, asking: "Has adidas got around the (restrictions on logo placement) by putting their 'swoosh' on the front of college jerseys?

"Objection," said Li, the NCAA's attorney. "It's stripes."

Everyone laughed. A moment later, Hausfeld asked Delany if adidas is allowed to put its "stripes" — he got it right — on pants, shoes, "and I was going to say mittens — gloves?"

People laughed again. But the point was made.

Later, Hausfeld showed Delany a copy of a "telecast rights agreement" between the Big Ten and a TV partner. It noted the Big Ten "shall be solely responsible for securing all clearances …" for athletes' names, images and likenesses.

Delany's response: "It's apparently boilerplate … I'm assuming these types of clauses are lawyers anticipating lawyers."

He probably anticipated what Hausfeld showed him next. A form Big Ten athletes sign to release their rights to their names, images and likenesses in broadcasts contained the phrase: "I agree that neither I nor my heirs shall be entitled to any compensation for the use of my name, photograph, likeness or other image of myself."

The attempt was to illustrate that, while Delany, Emmert and others say athletes are amateurs, the NCAA, conferences and schools are operating in a lucrative commercial enterprise — and they're asking the athletes to sign away rights they'd otherwise be eligible to monetize, too.

"They're talking about their concern about what we are proposing and (how it) will result in a separate classification," Isaacson said. "And what Mr. Delany was describing was all the ways they are different now — and everybody knows that."

Is Delany's idealized vision — either of the past or of what could be in the future with reform — real? It probably doesn't really matter, given that Wilken's task is to decide whether the NCAA is restraining trade by preventing football and men's basketball players from being compensated for the use of their names, images and likenesses. Answering a question from Hausfeld about time demands placed on athletes, Delany said he was referring to all Big Ten athletes. Hausfeld said he wanted Delany simply to focus on football and men's basketball.

"OK," Delany said.

Although the vast majority of the revenue pouring into college athletics is generated by those two sports, the NCAA clearly wants Wilken to view the NCAA as a much larger entity — as sponsoring many other sports for men and women, at several levels. But Wilken's habit of interjecting to ask questions indicates she might be focused elsewhere. At one point Friday, when Todd Petr, the NCAA's managing director of research, finished a long explanation of how the organization distributes its revenue, the judge asked:

"Are we done with all the money?"

"Yes," NCAA attorney Carolyn Luedtke said.

"Where's the rest of it?" Wilken said, saying she'd added up $500 million, when Petr had earlier estimated a total of $900 million.

And Wilken added: "I'm looking for the big picture."

Petr will be back on the stand as the trial resumes Monday. The NCAA has more witnesses to call. They'll attempt to tell more versions of what they see as a compelling story, hoping Wilken will focus on their vision of the college system as a "broad-based" opportunity that benefits athletes.

So far, it seems as likely as getting basketball coaches to lock up the arenas and send their players off to study in Europe.