Wonder if this tweet could be used as evidence.
Day 8 of the 10-day bench trial over @NCAA's athlete pay restrictions is about to start. Here's my coverage from yesterday in which @OSU_AD warned of sports dept cuts, while the plaintiffs highlighted the multi-million $ salaries of @OhioState coaches. bit.ly/2Dks5PC
We're back. @NCAA VP Kevin Lennon, who oversees Division I governance, is on the stand taking questions from the student athletes' attorney, Jeffrey L. Kessler of Winston & Strawn LLP.
Kessler has brought up a @CBS interview that @markymarkNCAA had with @ClarkKelloggCBS earlier this year, in which Mark explained the concept of amateurism. Lennon says he disagrees with how Mark framed amateurism.
In the interview, @markymarkNCAA said the concept of amateurism has evolved and constantly does. He said the @NCAA rules are made by the schools through "complicated representative bureaucracy that sits down & the representative governmental system sits and makes all the rules."
@markymarkNCAA told @ClarkKelloggCBS: "The rules of the association have accumulated over the years, and there’s no doubt in my mind - and I think most of the member university minds - that some of those rules have simply been written for a different age."
@NCAA's attorney keeps objecting to Kessler's line of questioning, arguing that the questions are vague and lacks foundation. The judge overrules the objections.
(H/t to @carnot3 for pointing out that the @markymarkNCAA handle I just referenced is a spoof. The interview that is being discussed refers to comments made by @ncaa president Mark Emmert, who doesn't appear to be on Twitter.)
Kessler has moved on to the @NCAA's rules that explicitly bans educational expenses that aren't permitted by the association. He asks Lennon if they've ever done studies determining what expenses they should permit and ban. Lennon replies no, not that he remembers seeing.
Kessler says the @NCAA rules won't cover expenses for vocational schools or incentives payments for student athletes who meet certain GPA benchmarks. But Kessler notes that coaches get tens of thousands in bonuses if a student "works very hard" and achieves GPA benchmarks.
Kessler says the @NCAA rules ban student athletes from receiving incentive payments for earning undergraduate degrees and won't cover tutoring expenses at other institutions. The rules also ban trust funds linked to education and health savings accounts.
Kessler says the @NCAA rules don't cover campus travel stipends and clothing or family subsidized travel as cost-of-attendance. Lennon says some of those costs could be covered by a Student Assistance Fund.
Kessler turned to the @NCAA rules adopted in August 2014 creating the autonomy structure joining five conferences. The rules gives the conferences autonomy to determine rules governing insurance loans, financial aid, awards and benefits.
Judge stops Kessler and says she doesn't get how the autonomy 5 schools' financial aid is restricted. "Where does it say that it's restricted." Lennon says the cost-of-attendance is the "controlling element of this," along with the principle of amateurism.
The judge isn't convinced. She says "This seems to say on its face that the autonomy five can decide on its face [financial aid]. You’re seeming to say it’s limited by another rule. I’m trying to find out which rule trumps the other."
Lennon says the autonomy five can't override @ncaa bylaws imposing cost-of-attendance limits. The judge asks Lennon then what is the point of having a specific financial aid autonomy 5 rule. He replies to comply with O'Bannon. Judge says but everyone has to comply with O'Bannon.
The judge looks visibly puzzled/concerned. Kessler moves on.
Kessler turns to a 2014 NCAA memo announcing a new process to interpret @NCAA rules. Lennon says under the new process, the schools were given more discretion in interpreting the NCAA rules as long as the rule is "less tethered" to amateurism.
Kessler asks Lennon if he was aware that students were allowed to get $3k waivers of @NCAA rules to pay for their families to attend final four games. Lennon says he wasn't aware of the waivers & he's not sure if it was a waiver, rule interpretation or "part of a pilot program."
Kessler brought up an April 2018 report and recommendation addressing the issues facing collegiate basketball, which was conducted by an independent commission led by @CondoleezzaRice. @NCAA's attorney is vigorously objecting to it being admitted as evidence.
The report says that the "overwhelming assessment of the commission" is that the state of men’s college basketball is "deeply troubled."
The report recommends that a third party conducts neutral investigations and adjudications of serious infractions and hold institutions and individuals accountable. “The NCAA’s investigation and enforcement processes require a complete overhaul," it says.
Kessler notes that the @NCAA responded to the report in August by announcing it would implement a new complex case unit and an "independent college sports adjudication panel," effective Aug. 1 2019.
Here's a link to the commission's report btw: scribd.com/document/37736…
Kessler wrapped with Lennon's examination for now and trial's taking a break. We'll be back in 15.
We're back. @NCAA's counsel is going through the rules pointing out provisions limiting financial aid and awards and benefits. The judge still seems confused and asks what the autonomy five financial aid rule does.
@NCAA attorney points to a doc showing the NCAA distributed $18 million in Student Assistance Funds. Of those funds, in 2016-17, student athletes spent 48%, or $40M on educational expenses, 26% or $22M on health & safety, 14%, or $11.7M on personal & family expenses.
Judge asks Lennon how the @NCAA collects SAF distribution data and if anything more "granular" is more available or if he knows the average SAF amount a student athlete receives. He says the NCAA gets the data from schools & conferences and he doesn't have more detailed info.
Different topic: Lennon points out an @NCAA rule that allows U. of Nebraska's @HuskerSports to offer student athletes $7,500 in post-grad internships. (The student athletes' experts questioned whether those awards complied with the rules earlier in the trial.)
To clarify, the $18M in SAF distributions was for 2018. They flashed that particular stat on the screen pretty quickly so not sure about the details on it.
The parties wrapped with Lennon. The student athletes' have called Hal Poret, who conducted a survey to determine if paying athletes would impact consumer demand. The @NCAA's attorney is examining him.
@NCAA's attorney is questioning Poret's credentials and noting that he doesn't cite academic research in his surveys or ask economists to review the surveys. Judge asks Poret if there's literature that follows up with consumer prediction studies to see if they're valid studies.
Poret responds that there are teams dedicated to determining whether surveys are valid and it's widely accepted in the profession. The @NCAA attorney notes that he didn't cite an academic article supporting his survey methodology.
The @NCAA's attorney is challenging the phrasing of a question that Poret put at at the start of a survey. The judge notes that she's not planning on striking Poret's direct testimony.
The @NCAA's attorney is pressing Poret on why he chose to mention concussions in his survey, noting there are a lot of lawsuits pending over concussions in sports. He replies that he honestly doesn't remember if any attorney suggested he mention concussions in the survey.
Taking a 15-minute break. BRB
We're back, @NCAA's attorney is still questioning Poret on why he chose to include the word "concussion" in his consumer surveys. He concedes that he didn't look at any injury rates data when he came up with his questions.
@NCAA's attorney is challenging Poret's scenarios and how they can be interpreted. Poret replies, "What the scenarios are speak for themselves I think."
The @NCAA's attorney is now taking issue with the phrase "closer to their home or family" that Poret used in his survey. Poret repeatedly says he doesn't see a problem with the phrase, because whether someone goes to school close to their home has "nothing to do with amateurism."
The attorney turned to another question, asking him about his word choice and how the question could be interpreted. Poret pushes back.
Poret: There are no words in here other than what it says.
@NCAA attorney: That’s true.
Poret: There are no words in here other than what it says.
@NCAA attorney: That’s true.
Poret emphasizes that just because people might say in a survey that they don't like something, doesn't mean they will change their behavior. (This is a point that the student athletes' economic expert Dr. Rascher also made earlier in trial.)
@NCAA attorney wants to break for the day, saying she has over 20 pages of questions left for Poret. The attorneys for the student athletes want to wrap with Poret today, arguing he isn't available next week.
Poret explains he has another trial that starts Monday in Florida in which he's expected to testify Tuesday. Both Poret and the @NCAA's attorney say they have flights out of SFO this afternoon and can't stay. The judge says they'll just finish his testimony via video.
Trial is breaking for the day. The NCAA's attorney will continue examining Poret via video Monday. After they're done with Poret, the NCAA will call marketing expert Bruce Isaacson to the stand. Only 2 days left in this 10-day bench trial.
Happy Saturday! Judge Wilken has been relatively tight lipped throughout this 10-day antitrust bench trial over the @NCAA's pay limits. But yesterday she had a few pointed q's for an NCAA VP about an apparent discrepancy in the rules. Here's my recap: bit.ly/2PXJsqR
Trial’s back in about 30 mins. ITMT, check out a quick interview I gave on @WORTRADIO last wk.
Scrub forward to the 33-min. mark to hear my recap of the trial. (Also, support your local radio station!)
archive.wortfm.org/mp3/wort_18092…
Scrub forward to the 33-min. mark to hear my recap of the trial. (Also, support your local radio station!)
archive.wortfm.org/mp3/wort_18092…
Over the wkend, the student athletes' counsel asked the judge to force @UWMadison to produce a statement it put out last wk downplaying Chancellor Rebecca Blank's testimony she gave under oath re. cutting sports if schools had to pay athletes. (h/t @JimPuritz24 for the heads up.) 
The @NCAA has opposed introducing @UWMadison's statement into the record, arguing that the student athletes are making a "mountain out of a molehill."
The judge noted that they have "some things to discuss," but she wants the parties to wrap with Poret first. At the end of trial last week, @NCAA's attorney, Beth Wilkinson of Wilkinson Walsh Eskovitz, said she had 20 pages of q's left for Poret, so this may take some time.
Wilkinson has been pressing Poret on purported biases in his survey q's, but he's been obstinate in his responses: "I’m not sure how to answer a question about a hypothetical bias that I don’t believe was there." His video connection just cut out though. IT is troubleshooting...
Poret is back. Wilkinson points to a study that tested whether 87 consumer surveys accurately predicted real world behaviors. Poret admits that the results were broad, but all showed positive correlations, meaning "all found some useful predictive value to consumer behavior."
Wilkinson wrapped with Poret for now. Counsel for the student athletes asks Poret if he thinks it's necessary to survey consumers on every compensation possibility to determine if offering athletes benefits would impact whether consumers stop watching college sports. He says no.
The student athletes' attorney points to a survey done by an @NCAA expert in the O'Bannon case. NCAA's counsel objects to the line of q's. The student athletes argue that Poret's methodology is the similar to the NCAA expert's method, so the NCAA can't now challenge its validity.
The @NCAA's counsel has raised multiple objections on a number of grounds to Poret's testimony about surveys and testimony he gave in the O'Bannon case. The judge has overruled all of the objections.
The parties wrapped with Poret and trial is taking a 15-minute break before calling the next witness, @NCAA Managing Director of Research Todd Petr.
We're back. Judge Wilken says she's concerned that the parties might need to call @UWMadison's Rebecca Blank back to testify on whether she authorized a press statement the school issued in response to her testimony last week.
The student athletes' counsel say they want to call Rebecca Blank back (via video) to say under oath whether she agrees with @UWMadison's press statement last week. Other media outlets reported that the statement says the school has no plans to stop offering athletics.
(For the record - I never received @UWMadison's statement.)
@NCAA counsel vigorously opposed calling Blank back to the stand, arguing it's a waste of time. The student athletes said they would use their time to call her back tmr. (Both sides have only 22.5 hrs each to argue and the trial must end tmr based on the judge's rules.)
With that, the @NCAA called Petr to the stand. He's testifying on federal graduation rates. He says the trend of graduation rates has gone up b/w 1991-2017 overall by 14%; and he's seen increases in graduation rates across college sports.
cc. @ToddMilewski
Petr is going through @NCAA's survey results. He says 27-32% of football and basketball players say all of their friends are teammates & 7-11% regret their majors. FBS football players say they spend 42 hrs on the sport, according to the NCAA.
Petr says the U.S. Dept. of Education's Equity in Athletics Data Analysis database is unreliable and its data is inconsistent with the @NCAA's data. The inconsistencies are "kind of all over the place," he says.
The @NCAA's attorney is walking through NCAA Div. I revenue data. It seems that the attorney is trying to point out that expenses have risen along with revenues. (There are a lot of numbers being thrown out - to avoid an error, I'm holding off on tweeting those specific stats.)
The @NCAA wrapped with Petr for now. The judge says she doesn't think it's likely that schools are lying to the government routinely and she wants to look at the EADA data. NCAA's counsel clarifies that they don't claim schools are lying, but they're submitting data with errors.
Jeffrey Kessler of @WinstonLaw is examining Petr. He points to NCAA data showing the median football Autonomy conferences' revenues more than doubled between 2004 and 2016, from $40M to $94.9M, while expenses rose from $43M to $98M. He notes those costs include coaches' salaries.
In the Autonomy conferences, Kessler points to data showing that the athletic expense per student athlete rose from $79k in 2004 to $181k in 2016. Petr concedes that the stat includes coaches' salaries.
Kessler notes that in the Autnomy FBS conferences, football revenues doubled between 2004 and 2016, while the median value for head coaches' salaries more than tripled, from $1M to $3.529M
Kessler points to the @NCAA's own stats that show 40% of Div. 1 football and men's basketball players disagreed or somewhat disagreed with the statement that they have enough money to buy things they need, like groceries.
The parties wrapped with Petr. Trial is taking a 15-minute break. When we're back, @NCAA’s expert witness, Bruce Isaacson. will take the stand.
We're back. Isaacson is on the stand. The student athletes' attorney says Isaacson never asked survey participants about their future behavior and instead only asked about their preferences. Isaacson says the answers are still relevant to predicting future behavior.
Isaacson says he only measured 3 of the 8 scenarios that the plaintiffs' survey expert proposed, because the other 5 scenarios were "unfix-able." "They were broken without repair, because of the premise of them," he says.
The attorney for student athletes, Jeffrey Kessler, turned to a table showing Isaacson's survey results. It shows 31.7% of 1,086 respondents said they "like the fact that college players are amateurs and/or are not paid."
Kessler is drilling Isaacson on his choice to use the "disjunctive" phrase "and/or" in the question and his choice not to clarify what an amateur is and how much student athletes receive in cost-of-attendance scholarships.
Judge Wilken just broke witness examination early, because she has some scheduling issues she wants to discuss with the parties. Isaacson steps down.
Judge Wilken says the parties might want a declaration from the @UWMadison's PR person about the statement the school put out in the wake of Rebecca Blank's testimony. @NCAA's attorney says they plan to get a declaration from Blank on the issue.
The judge says she'll allow the student athletes' economic expert, Roger Noll, to take the stand again to respond to certain criticisms of a study he mentioned that came up after he testified. She says a "brief amount of testimony is reasonable."
The judge says she is still confused by how Pell Grants can be more than cost-of-attendance and she wants to know how federal government guides cost-of-attendance. "What are those regulations? What do they say?" she says.
The judge wants to know if there's an analysis of how many student athletes get scholarships and how much they get.
The judge wants the parties to address those issues, and she wants both sides to propose in their written closing arguments possible remedies or injunctions that could be entered "out of an abundance of caution."
Court recessed for the day. Between the two of them, the parties appear to have at least 5 witnesses they want to examine before the end of this bench trial. It's unclear if either side will have any time left of their allotted 22.5 hrs at the end of the day tomorrow.
The parties covered a lot of ground in court yesterday. Here's my recap. law360.com/articles/10855…
Judge Wilken is back on the bench. The @NCAA has 3.5 hrs left and the student athletes have 4 hrs left. In the interest of time, the athletes' attorney suggests the parties each have 2.5 hrs of examination today. The judge says that's "perhaps generous" of them.
Counsel for the student athletes says they want to call back their economic expert Stanford University professor Roger Noll. He also says @UWMadison chancellor Rebecca Blank is "on standby" via video. It's unclear if she'll be examined today.
With that, the @NCAA called their survey expert Bruce Isaacson back to the stand. Te athletes' attorney was in the middle of examining Isaacson when trial broke yesterday, but he says in the interest of saving time, they have no more q's for him. The NCAA's counsel does, however.
The @NCAA's counsel is asking Isaacson about a survey - over the athletes' objections - that the athletes' expert, Hal Poret, conducted. Isaacson is repeating criticisms he brought up yesterday, testifying that Poret's "entire approach lacks any theoretical perspective."
Isaacson says 68.5% of his survey respondents say they oppose offering student athletes "unlimited payments." Isaacson notes that Poret never included the scenario in his survey.
Student athletes' attorney is back up. The attorney asks Isaacson if he asked survey respondents why they oppose giving athletes "unlimited payments," noting that it could be b/c they want the money to go to faculty. He concedes he didn't ask respondents that q.
The parties wrapped with Isaacson. The @NCAA calls to the stand Nathan Hatch, who is the president of @WakeForest.
Before becoming the president of @WakeForest, Hatch served as provost of @NotreDame for 9 yrs, where he says he spoke with thousands of donors about giving to the university. They gave due to academic quality, sports & the "attachment to the amateur model of athletics," he says.
Hatch says while he was at @notredame they didn't consider giving athletes money for achieving certain grades. The practical way to get people to do well in classes is to help them academically and not to incentivize them financially, he says.
Hatch says based on his experiences at @NotreDame and @WakeForest, he thinks paying student athletes more than the cost-of-attendance would cause "huge kick back" from faculty and it would be "very divisive" within the university.
The judge repeatedly sustained objections to the @NCAA's q's asking Hatch what he thinks other school presidents would do if the NCAA lifted pay rules. The judge said she's concerned that Hatch's lay opinion testimony "would include predicting the future," which isn't allowed.
Trial is taking a break. Back in 15 minutes.
We're back. Hatch says if the @NCAA pay rules were lifted, there would be a "shake-out," causing conferences to split and creating a division among its members.
Counsel for the athletes asks Hatch if he or @WakeForest have conducted any economic or statistical analysis of what would happen if various @NCAA pay rules were relaxed. He responds they have not.
Hatch tells the athletes' counsel that he is "implying" that the only way to know something is from the outcome of studies.
The athletes' attorney asks Hatch if he's seen the demand for college football go down since the Autonomy conferences formed in 2015 and the @NCAA relaxed certain rules covering benefits. Hatch says no.
The athletes' attorney is trying to ask Hatch about bowl gifts mentioned in an article. The @NCAA objected to letting Hatch see the article. The judge said OK, but seemed confused about the request. bizjournals.com/triad/news/201…
Hatch says he has "lived in academia for 40 years" and he doesn't need a survey to know what would happen if the @NCAA lifted its pay rules. The athletes' counsel notes that he hasn't lived in academia without the pay rules. He concedes he has not. The parties wrapped with Hatch.
@AmericaEast commissioner Amy Huchthausen (aka. @AE_Commish) is next up, appearing via video. The @NCAA notes that they object to Huchthausen's being called as a witness.
Counsel for the athletes asks Huchthausen if she thinks it's true that paying student athletes at Power 5 schools could have beneficial effect on the @americaEast conference. She replies "that is not true," which appears to be at odds to statements she made on a panel at MIT.
The athletes' attorney has asked Huchthausen to read a transcript from the panel, which was recorded. Huchthausen concedes that when she was on the panel, she didn't describe any negative effects on @AmericaEast of paying Power 5 student athletes.
@AE_Commish says she doesn't think her responses to q's about paying Power 5 student athletes during the panel were positive for her conference. "I see it as more of a neutralized outcome," she says. During the panel, she said paying Power 5 athletes might "equalize" conferences.
@AE_commish says she didn't have enough time while on the panel to go into this "very complex issue" of paying athletes. If the rules were lifted, the @americaeast would have to evaluate whether it would want to stay in the @NCAA and overall, it would be harmful, she says.
The athletes' attorney notes that the @AmericaEast didn't see a loss in demand after the @NCAA switched to cost-of-attendance in 2015. She concedes that it didn't. The parties wrapped with @AE_Commish.
BTW, here's a link to @ZachZagger's coverage on the pre-trial fight over allowing @AE_Commish to testify on the comments she made at the MIT panel. And here's what she said. law360.com/articles/10762…
The athletes' counsel called Stanford University economist Roger Noll back to the stand to offer rebuttal testimony to criticisms of a law review article that assessed whether the NCAA’s 2015 rule changes impacted the popularity of college sports.
The @NCAA's expert criticized the article for failing to take into account a ticket price. But Noll says "there’s no reason to reject it, just because they didn’t have a price equation or method of taking into account the endogeneity of the price."
(Noll just explained what edogeneity means, but I don't trust myself to summarize it accurately at the moment, so here's wiki) en.wikipedia.org/wiki/Endogenei…
Noll says "obviously it is crazy" to say the existence of academic awards undermine academic performance. That doesn’t make any sense, he says.
@NCAA's attorney is cross examining Noll, asking him if he knows the specific authors of certain articles. Noll says he didn’t evaluate the articles "on the basis of the name at the top." "I don’t judge articles based on the names of their authors," Noll says.
@NCAA counsel asked Noll if he knows the authors of the article at issue have been tweeting about this trial. Noll says no, he hasn't been following them on Twitter.
The @NCAA's counsel asks Noll about what he thinks fans think about the NCAA moving to cost-of-attendance. Noll responds that his "expertise does not extend to reading the minds of fans."
Judge points out that the @NCAA's counsel has gone "about as long on cross" as the plaintiffs have on their direct examination of Noll, and there have been a number of topics covered.
Counsel for the student athletes just objected to a line of q's, arguing that the @NCAA has about 10 minutes left in their entire case and their questions are going beyond the scope of direct. The judge sustains the objection
Counsel for the @NCAA wrapped with Noll with 2 minutes left.
The athletes' attorney asks Noll if people might oppose the @NCAA moving to cost-of-attendance but not know of the 2015 change. Noll: "The notion that somebody cared deeply about.. a relatively small change in compensation, but they didn’t notice, just doesn’t make sense to me."
The parties wrapped with Noll, and the @NCAA's counsel just asked for a second break. (Judge Wilken forgot about it.) The judge says they have 35 minutes left of trial and the parties can "do what they like with it." The NCAA's counsel says they need a break. Back in 15.
And we're back early. The judge says one of the court reporters broke her wrist over the weekend so their time is limited to 25 minutes with the sole court reporter. (Real world reminder of the judicial system's limited resources.)
The @NCAA called the association's VP of administration and CFO Kathleen McNeely to the stand. McNeely will be the last to testify.
McNeely says about 85% of the NCAA's TV and media rights revenues come for the March Madness basketball series.
McNeely says Division I members received $560 million back from the @NCAA's $1.06 billion in revenues last year.
Of the $1.06 billion, the @NCAA spent about $189 million last year on "association-wide programs," which includes enforcement and compliance, McNeely says.
With less than 20 minutes left in trial, the CFO is getting into the details of the NCAA's 2017 and 2018 revenues. The judge commented that "there's nothing particularly controversial" in McNeely's testimony.
@NCAA's counsel, who still had q's, ran out of time, even though the athletes gave them a portion of their allotted 15 minutes. On cross, McNeely concedes that close to 90% of FBS schools revenues aren't from the NCAA.
Time's up! This 10-day bench trial wrapped, somewhat anti-climatically, with the @NCAA CFO's brief testimony on its revenues. The judge thanked both sides for their work & says she looks forward to their closing arguments, which will be submitted in writing.
Here's my rundown of the witness-packed, last day of the 10-day antitrust bench trial over the @NCAA's rules limited athlete pay. Again a, lot of ground was covered by both sides: bit.ly/2xUyOcO
For your reading pleasure, I just updated my site, which lists all of my tweets from the @NCAA 10-day bench trial in chronological order. Here it is, in its 15,368-word glory: dorothymatkins.com/alston-et-al-v…
Lest we forget - the Alston et al. v. NCAA trial isn't over yet. The athletes just submitted their closing arguments in writing. (The NCAA has until Nov. 9 to respond.) Story tk, standby...
In a brief outlining their closing arguments, NCAA athletes blasted the @NCAA's rules limiting athlete compensation, calling amateurism an “economically invalid" myth. The written closing arguments serve as a final act to a 10-day antitrust bench trial: bit.ly/2yRIjKr
Judge Claudia Wilken rejected the NCAA's bid to submit new testimony from @brad_hostetter last wk. The judge criticized the @NCAA for calling witnesses to testify on issues that "added no new meaningful information to the record" via @MWCurleyJr bit.ly/2qizXaW
The @NCAA filed their closing arguments Friday in the landmark antitrust bench trial over rules limiting athlete pay. The NCAA argued that college sports fans value amateurism and “overwhelmingly oppose” paying student athletes. bit.ly/2zQBRUv
On Friday, the @NCAA also filed a motion to strike the athletes' closing arguments that refer to testimony provided by @Stanford economist Roger Noll and @usfca economist @daniel_rascher. The NCAA argued that the profs based their opinions partly on inadmissible material.
I'm just curious about this. If you're a @NCAA fan, do you oppose paying college sports athletes?
Athletes fired back at the @NCAA's closing arguments in a landmark antitrust trial over its rules that limit athlete compensation. The athletes argued that the NCAA’s evidence falls “far short” of proving that the rules improve demand for college sports. bit.ly/2qZgfkS
A hearing on closing arguments is set for Dec. 18. After that, the case will be in Judge Claudia Wilken's hands.
This morning the parties in Alston et al. v. NCAA are giving their final arguments in the landmark antitrust bench trial over athlete compensation. Both sides have submitted their arguments in writing - it will be interesting to see what comes up in the courtroom.
The parties will also be arguing over the @NCAA's motion to strike the athletes' expert testimony provided by economists @daniel_rascher and @Stanford's Roger Noll. Judge Claudia Wilken isn't in the courtroom yet.
Judge Wilken is in the courtroom, which is packed. She says she has a number of questions based on the written closing arguments. She says she'll ask her questions in "no particular order."
Judge Wilken says it seems "pretty clear" there is antitrust violation, but she wants to know how egregious it is or how it could be quantified for the purpose of balancing it against any potential pro-competitive effects of it.
Jeffrey Kessler of @WinstonLaw argues for the athletes that the @NCAA has not shown a pro-competitive effect of its athlete compensation restrictions on demand for college sports. He says if there is such a showing, it’s "very small" and minor.
The judge questioned the athletes' attorneys on where they found the statistic that 4,000 @NCAA athletes received SAF funds above the cost-of-attendance. There was some back and forth, but the attorneys argued the stat was admitted as evidence and backed by @daniel_rascher.
@NCAA's counsel, Beth Wilkinson of Wilkinson Walsh Eskovitz, says they have not conceded that there was an antitrust violation. Judge seems irked: "Do you want to tell me there is no agreement to restrain trade in a way that affected interstate commerce?"
@NCAA's Wilkinson responds that she's not prepared to make that argument now. The judge says she's "trying to reach the truth, shall we say" and if Wilkinson isn't prepared to make that argument then she should move on.
Judge Wilken asks the @NCAA's Wilkinson how she would balance the restraint on trade against its pro-competitive effects on demand for college sports. Wilkinson responds that there's no way to determine that w/o a quantitative analysis, which the athletes' experts didn't do.
The judge wants to move on from the balancing q. The athletes' Kessler notes that case law says if you can't quantify the pro-competitive effects of an antitrust violation, you look at market power and other evidence. "In this case, we have a clear market-power monopoly."
Judge WIlken says she was a "little dismayed" to see that the @NCAA said in its papers that she "forced" the parties to stipulate to the NCAA's history. She says she wants to clarify that she certainly did not require them to agree to something that is not factually true.
The @Pac12 attorney, Bart Williams of @proskauer, says they disagreed with the "process" of having to stipulate to the @NCAA's history. The judge says if there's something factually inaccurate in their stipulation the NCAA needs to file a brief explaining.
Judge Wilken has moved on to the SAF funds. She is pressing the @NCAA's attorney on whether they have a breakdown of how much conferences or schools give out annually in SAF funds. The NCAA's attorneys say they only have the aggregate amount of SAF funds in the record.
Judge Wilken suggests that she could divide the aggregate SAF funds by the number of @NCAA athletes to have a "ballpark" number of how much on average athletes receive in SAF funds. The NCAA's counsel says that wouldn't be an accurate reflection of how much they receive.
Judge Wilken says it's a "little odd" athletes can receive Pell Grants on top of full cost-of-attendance scholarships. "It seems as though if you got both you would be getting paid twice" for tuition, room and board, she says. She adds that the athletes "probably need it."
The judge asks @Pac12's counsel Bart Williams about integration. Williams says the "balance" would be disrupted if athletes are paid, b/c it would change incentives. Judge Wilken says "what about just having a little bit of money?" Williams says it would still disrupt studies.
Williams says paying athletes would create a "wedge" b/w others on campus. The judge: "so people will be mean to athletes and the athletes will feel bad?" Williams responds that it will create envy and impact the quality of their education.
Judge Wilken notes that @NCAA athletes already get paid different amounts under the current rules. Williams says removing the compensation rules would increase the resentment among athletes and degrade the quality of education overtime.
Athletes' counsel Steve Berman of @ClassActionLaw says paying athletes wouldn't disrupt their academic studies and schools could offer grad school scholarships. "How could it hurt from an economic standpoint to give a student athlete more education? They have no answer to that."
Judge Wilken says it's more likely than not that paying athletes large sums - like a million or more - could create a bidding war among schools. She asks Berman if he is arguing that economic principles will prevent @NCAA conferences from allowing that to happen. He says yes.
The athletes' attorney, Steve Berman of @ClassActionLaw, says the @NCAA has called lay witnesses to testify during trial about how compensating athletes will totally disrupt the conferences. But those testimonies amount to "fear mongering," Berman says.
Judge Wilken still has more questions for the parties in Alston et al v. NCAA, but she called a break. We'll be back in 10.
The athletes' counsel, Jeffrey Kessler of @WinstonLaw, is up, arguing that there hasn't been a drop in demand for college sports since the @NCAA moved from grant-in-aid to the cost-of-attendance model and created the Power Five conferences.
Judge Wilken says she wants to focus on less-restrictive alternatives - meaning what would happen if she sides with the athletes. She says the athletes have offered three alternatives, one which bars the @NCAA from capping athletes' compensation.
The judge suggest that the @ncaa could define what is an "incidental benefit to participation" and an "education-related benefit," but then the NCAA might have to change that definition over the years. She adds that even an education-related expense is not self-defining.
The athletes' attorney, Jeffrey Kessler, responds that this is why the court should let the conferences decide compensation rules. "That is the safest way," he says.
@NCAA's attorney Beth Wilkinson is back up, arguing that conferences won't stop multimillion-dollar bidding wars if the NCAA rules were lifted. She says it's like taking away the federal tax code and hoping states would* use resources to fund roads. (deleted tweet with a typo)
The judge pressed @NCAA's attorney on the definition of an "incidental to participation benefit." Wilkinson says the NCAA has intentionally left certain terms vague to accommodate benefits that aren't currently covered but could be in the future. She used yoga as an example.
@NCAA's attorney Beth Wilkinson and the judge just wrapped a tense debate about less restrictive alternatives to the NCAA's current pay rules. Wilkinson argued against all of the proposed alternatives and said it could take years for the conferences to implement their own rules.
The athletes' counsel Jeffrey Kessler is back up arguing that the 32 conferences already have their own rules, and the conferences already have different resources, under a "cartel arrangement."
Judge Wilken says she has further questions but she's not going to be able to ask them. (They've been going for four hours.) She says she'll issue a ruling in short order. And now we wait!
