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Andy Schwarz @andyhre
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Judge Wilken states she thinks an antitrust violation occurred. Says it comes down to balancing question.
She’s asking how to balance if there isn’t evidence of the dollar balance. I wish I could testify in answer to that!
Jeffrey Kessler address the balancing question. He explains ninth circuit requires balancing. Walks through the balancing argument and then says the question is how to do the balancing.
Judge W suggests the balancing might even come during the procompetitive justification stage. She says it doesn’t really matter when, though.
Kessler agrees. Either you assess it at stage 2, is the PCJ strong enough given the harm. Or you could follow Areeda doctrine which says it’s after the LRA phase
He says: here, if not for the rule of reason doctrine, this Kurd be a per se violation. The effect you found is not some small violation of antitrust laws. This is at the core of the antirtrust laws and the elimination of competition is virtually complete.
Kessler this is a very significant amount of anticompetitive harm. He points to the size of dollar damages for just the settled damages clIms and says there is even more harm here
Kessler says she should rule that either there is no pcj ior if there is, it’s tiny. It’s not the quantum leap the ninth circuit predicted but a baby step
Judge Wilken asks about how she should know that 4,000 athletes exceeded COA. Kessler explains Dan Rascher showed it. She asks how rascher did so. Kessler explains how rascher did it on individual basis
Judge Wilken is asking whether the expert evidence is admissible for the truth of what the expert concluded. What I don’t understand is why the aggregate opinion the expert made isn’t evidence as expert testimony. Beyond my paygrade
Little back and forth on Rascher’s methodology. Lawyers did a reasonable good job of summarizing what Dan did. A few OSKR folks probably could have been more precise.
Kessler closes saying don’t forget that Defendants have burden and he points to the Areeda treaties cited by court in Amex.
Beth Wilkinson for Defendants disputes that there was an antitrust finding. She says judge only has found anticompetitive harm. Judge says she’ll give two sentences.
Judge asks is there an agreement to restraint trade that affected interstate commerce. Beth wilksonson refused to concede that. Judge says, ok explain your argument. She confers with cocounsel
Beth Wilkinson says she is not prepared to make the argument, judge Wilken says if she has an argument that trade was not restrained Wilkinson returns to her argument that there is harm but not violation itself. That’s for. Steps 2 and 3.
Now it seems Wilkinson is arguing that to find a LRA is required to find a violation. (Side note, I am not sure that’s right if there is no real PCJ).
Judge asks how do you balance?

Btw LRA is less restrictive alternative, PCJ is procompetitive justification.
Beth w tells Judge W she can’t apply her own personal judgement. Judge W says judges do that all the time.
Beth Wilkinson says the PCJ is large. This is a product that has been highly popular and partly attributable to a benefit. She claims plaintiffs experts admitted some number would harm demand (side note, that last point isn’t true)
Judge asks about the County of Tuoloumne case. Corrects Kessler’s mispronunciation. (Note, inonce jispronounced it when I was a DJ in college, but I have since learned)
Judge W asks Beth W why County of Tuolomne isn’t binding. She corrects Wilkinson who says O’Bannon didn’t use it so it should end reliance on CoT. Wilken explains O’Bannon never reached the step.
Wilkinson discusses facts of the CoT case and judge W says those facts aren’t as important on the legal rule. Wilkinson says the case gave no process guidance. Says Areeda says without quant analysis, defs win
Judge w asks the hypothetical of whether if there is no LRA, great harm, small PC benefit, must she find for Defs or can she balance.
Wilkinson says that it can’t be a small PCJ if it can’t be almost as closely replicated by an LRA.
Judge W says that’s enough of balancing. Kessler steps in and say Areeda doesn’t say what Wilkinson said. He says you look at things like market power and co7nsels to find for Ps.
Judge says she is concerned about some of the facts of the NCAA. She asked for a factual stipulation. She says she got an after trial stip, it she was dismayed the implication that defendants were forced to stipulate to untruths. Asks defendants to clarify what is untrue.
Bart Williams argues that the history may be true but the ncaa feels it was hearsay. She reasons: did you stip to something not true.
She offers ncaa a chance to unstip anything false. Bart W says we are arguing that this was not otherwise admissible. She repeats they can retract false info, not stuff they think is inadmissible.
Bart W is pushing back on whether defendants have burden to prove the quantum of benefit. He reads to here something about step 3. She says it sounds like angels on the head of a pin (ie unimportsnt quibbling)
Judge W is asking Bart W about whether Rascher’s evidence on 4,000 students abiogenesis COA is contested by defendants
Karen Lent speaks to evidence underlying the rascher opinion.
Judge is asking karen lent about what the data sources are.
Bart W wants to discuss what evidence there is about loss of value insurance. Judge W says she thinks she understands Pell grants. Bart W says none of the things above COA even the Olympic payments are inconsistent with amateurism.
Williams discusses how ninth circuit said Pell grants don’t count.
Discussion by Defs saying Rascher’s 4000 includdd Pell grants. (Side note: it did not, but Defs claiming it did)
Judge W asks if P claims SAF money grew since O’Bannon. Lent says she no. They are disputing specific points
Sorry I got lost on something else. We’ve moved on.
Judge W now asking about autonomy 5. Says it started just before she ruled in O’Bannon. She asks about timing of COA vis a vis injunction going into effect. Bart W tries to clarify the timing. Scott Cooper stands to explain facts.
Cooper explains autonomy came into effect but first autonomy decision took place in 2015. The process was started before O’Bannon decision.
I think she is concluded coa was approved before her ruling. That’s not true but the testimony was muddled.
Bart w argues $50k of insurance is not pay. It is a way of diminishing risk to allow education and sports.
Williams arguing that ncaa only has to prove is that amateurism play “some” role in consumer demand and that the rules promote an understanding of amateurism.
Theyclaims they need to show that amateurism enhances demand and that lay witness testimony increases demand. 100 if not 1000 of conversations with lay witnesses
Williams explains his basis for why lay opinion should be admitted. Williams turns to surveys and judge cuts him off. Ask to talk about integration.
She ask him to articulate what the PCJ of integration is? In whose head is the perception of integration? Williams kind of spouts NCAA sound mind sound body pablum. But if paid they’ll put more focus on athletics.
Williams cites Nathan hatch and gene smith. Judge W asks about an admission by heckman that having a little more money would help. Williams denies it happened (but it did)
She goes back. Does having a little more money make athletes less academically oriented. Williams says if you pay them a salary because they play athjetics. That has all of the vices of “pay for play”
Judge w What if we call it a larger scholarship?

Williams cotes to testimony of problems of paying beyond “enough”. People who follow me regularly know I think the “enough” standard is for animals not adult humans.
Williams falls back on Heckman, Smith, Scott all said more money would be bad. (All three of them are paid to do their work). Williams cotes cardale Jones’s infamous tweet as example of how school makes people value amateurism. I think @Cardale7_ would disagree.
Williams argues 5ere already is a perceived different but any more money will drive a wedge and students will be “turned off” just because of lay

Judge W asks “so those people will be mean to athletes?” As if she doesn’t buy it
Judge W asks whether people get partial GIAs. Williams says it is typically not the case
Judge W asks questions about some of the reductio ad absudum elements of the integrationa4uments. Says won’t athletes choose schools that pay less because they won’t be treated meanly.
Judge W point out that integration has to be distinct from consumer demand.
Steve Berman for plaintiffs now. Says Defs have not met their burden on integration Says evidence is that as increased benefits occurred grad rates grew.
Berman corrects Williams claim that heckman didn’t say $ would help. Berman quotes heckman saying there is “no doubt about it” that more money would be a benefit, all else equal
Berman quote Shayne Alston, first time an athlete’s testimony has been cited. Said more money would not have increased his focus on football.
Berman now cites evidence that all the increase in compensation has not increased wedge. Judge says well maybe more would. Berman explains that a wise school would not offer so much to create it, and they all testified they would not
Berman cites MJenkins testimony that despite his teammate being a millionaire they were not divided by a wedge.
Berman discusses the elephant in room that there isn’t integration now.
Berman explains they have no evidence that providing post graduate scholarships could harm consumer welfare.
Berman says defendants have not met their burden to prove their PCJ of amateurism. He says he is going to list what they didn’t do. They used no academic witness on surveys.
Berman says they called no broadcasters. No sponsors No boosters. Nor did they survey boosters. No faculty members called nor survey of facukty
No contracts saying amateurism is essential.
Judge W asks if risk of a small decline in demand is worth noting. Berman says that’s not good enough to meet demand. She says but what if there would be bidding wars? Berman says there won’t if they are harmful
Berman says if there million dollar fearmongering … you have all these lay people saying what will happen .. Wisconsin chancellor said UW would quit. But UW clarified, they’ll, sit down with big ten and make new rules that won’t harm demand
Berman explains Rascher’s evidence for the 4,000 athletes and points out all of his examples.
I get a cameo as “dr Rascher’s associate” when I whisper a date to counsel. Judge was asking what year a chart covered
Now she suggests a break because the rest of her questions were for Kessler.
Just FYI. I have a little balancing act here since I worked on the case and so I am trying f to just report what is being said not what I think. In a few cases where I know a fact is misstated I will say. In cases where my lay understanding of the law is different I may say…
that it’s not what I understand but I am NEVER offering a legal opinion. My personal opinions may leak through, but everyone knows I think denying athletes right to bargain in an open market is denying them a right that should not be trumped by schools desire to keep costs down
A few of my tweets got eaten but Kessler is up now and filling in information on where Judge can find evidence. Points that specific Rascher charts were themselves admitted into evidence separate from his testimony.
Kessler points to the autonomy process as something that happened after discovery closed in O’Bannon but was in process before court decision. He points out that autonomy was designed to allow resources to flow to athletes.
Kessler says the autonomy rules show he conferences can increase limits without either of the PCJs being harmed. If they could do it in competition, they could be just as careful
Kessler covers rules changes. Ten post O’Bannon rules changes that allow benefits above COA. Says defense have claimed these are minor but says they are not.
Kessler says we are not claiming the ncaa should be punished for giving more. Rather we are showing each crossing of COA has no harm to demand and thus conference decisions will be fine. “Not a quantum leap but a little tiny baby step “
Kessler points to examples of educational benefits that were prohibited and allowing payments that are not educational. Each contradicts the opinion of ninth circuit.
What wasn’t in the O’Bannon record that is now is the economic evidence of the pervasiveness of abive COA payments. Kessler says that even things that occurred pre obannnon can give rise to violation if the COA environment
Kessler d plains that by going to COA the P5 made the quantum leap theory testable and now we know he harm of above COA isn’t true.

He says while visa gift card were allowed before, there was no evidence of visa gift cards ON TOP of COA.
Kessler. Bottom line of this is hat befor rthere was not material non-pell payments above COA. And now there are. And testimony is that in 30 years whenever a change is discussed it never is assessed in light of consumer demand or integration, but they do talk about cost
His shows they are not being motivated by consumer demand or integration because they never study that. They are motivated by cost.
Moving to LRAs. Now. Kessler still up, asked for brevity. Judge W says whatever the LRAs are also going to be the injunction. She asks Kessler to narrate them both and distinguish 1 from 2.
Judge W says lra1 and lra2 are both conference models really. Kessler says LRa1 is an answer to how to give schools “ample latitude” She says he is missing her point
Kessler gets it now and distinguishes LRA2 as saying if we are wrong and there is some reason you need national rules then you should allow the ncaa to limit conference decisions to noncash education benefits.
Judge W asks who decides what is educational. She asks what if the ncaa defines what is and isn’t. Kessler says for incidental benefits, the ncaa can Define categories but not. Separates educational.
Kessler Has not answered about educational. I fear that tangent may have gotten lost.
Judge W says maybe you couldn’t define incidental to participation is. Kessler says yes, there is no principled linepther than what their majority votes for.
Judge asks whether grad school elsewherenisneduzation

Elsewhere is educational. Kessler says yes but defendants disagree nonverbally and she notes it. Kessler saying “and this is why we thinks LRA 1 is better because conferences make those calls
Judge W now has specific questions on LRA.

She asks about costs. Kessler says injunction is only eliminating ncaa rules. Not compelling any new rules. No new admin costs.
Makes the argument that any new rules conference CHOOSe to adopt are their choices not he injunction
Kessler then offers that the NCAA can remain the enforcers of each conferences rules. Just as NCAA enforced autonomy rules on P5 and other rules on other schools.
Third, with the coming rice commission outsourcing proposal, that outside entity could enforce different rules for conferences.
Kessler says some confeeences already enforce rules and that’s In Evidence. Cotes the depo of ACC witness Hostetter
Finally cites to Rascher and Noll on how decentralized rules will be cheaper because they are tailored to conferences needs
Judge asked why 90 days? Maybe they need a survey. Kessler if they show they need six months that’s fine
Beth Wilkinson points out Judge W mentioned saf in O’Bannon. Doesn’t address the pervasiveness.
Judge W says what the Circuit court had a problem with with dime one of non educational benefits
Wilkinson says schools will pay high amounts of allowed. Judge W says confeeencr is different than school. Maybe she read Rascher and schwarz (2000)
Wilkinson argues a P5 will try to go very high to compete. Judge W says but plaintiffs argue that they will take demand into account
Wilkinson argues that March madness will be destroyed if conferences can choose.
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