O’Bannon Plaintiffs: NCAA’s Own Witness’ Testimony Supports Plaintiff’s Case

SOURCE: Jon Solomon/CBSSports.Com

The Ed O’Bannon trial may be over, but critical elements remain before a bench ruling that could allow college athletes to be paid: Post-trial briefs.

As scheduled by the court, the O’Bannon plaintiffs went first Wednesday with their post-trial conclusions in the antitrust lawsuit against the NCAA over the use of college football and men’s basketball players’ names, images and likenesses (NILs). The plaintiffs wrote that no matter who the buyer or seller is in the antitrust theory, there is a restraint of trade that outweighs the NCAA’s arguments for restricting players from being paid.

The roughly 25-page briefs are an attempt to answer questions raised by US District Judge Claudia Wilken and highlight areas that each side wants Wilken to consider. As Wilken said last week at the end of the three-week trial, she is not deciding whether the NCAA’s policies are good or bad. She is determining whether the plaintiffs have proven antitrust violations occurred given the necessary requirements.

Last week, Wilken expressed difficulty distinguishing between a market and a product in the plaintiffs’ claim. Before anything else, the plaintiffs have the burden to prove that one of their two claimed markets — the college education market for recruiting athletes or the group licensing market — has been harmed.

Wilken asked the plaintiffs’ lawyers if they wanted to switch their theory from a monopoly (a market structure with a single seller) to a monopsony (a market with only one buyer). She also asked the plaintiffs for case precedent in the “complicated” buyer/seller arrangement in this antitrust case. The plaintiffs tried to do that in their brief, often by citing their economic expert, Roger Noll, and past case law.

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