OAKLAND, Calif. -- As they battled in the O'Bannon trial Thursday over payment to college players for television broadcasts of their games, the players were talking about "rights," and the NCAA was talking about "rights," and they were talking about two totally different and irreconcilable things.
For the players, the "rights" are their rights to sell their names, images and likenesses to the television networks and cable stations that want to broadcast their performances. Relying on testimony from Edwin Desser, a sports media consultant who has negotiated hundreds of sports television contracts, the players insist that they enjoy rights that have value separate from the rights of the schools, the conferences and the NCAA.
Desser told U.S. District Court Judge Claudia Wilken that if the television networks did not have control of the players' names, images and likenesses, they would be broadcasting "blurred faces" and "empty uniforms."
For the NCAA, the "rights" are the assets that are included in what are known as television "rights packages," a bundle that automatically includes the players' names, images and likenesses. Another sports television expert, former president of CBS Sports Neal Pilson, who was testifying for the NCAA, said that in the $15 billion in sports television contracts that he has negotiated, no one ever considered or negotiated players' rights.
For the players to succeed, they must convince Wilken that individual rights exist in the context of a game and that the players should be permitted to sell them to the schools or the conferences or even to the networks. In an earlier opinion in the five-year-old players-vs.-NCAA lawsuit, Wilken said that the players must "show that the [athletes] would have a cognizable right of publicity in the use of their NIL in live game broadcasts."
Whether the players are entitled to a share in the huge revenues that the NCAA and the FBS schools receive from television contracts is the single most important issue in the case. The NCAA's response to the players' claim for television money is redefining the term "stonewall." The NCAA lawyers started their defense well before the trial now underway with a flat statement in a brief that "there is simply no legal authority whatsoever for such a claim."
Pilson, who has negotiated television contracts with the International Olympic Committee, the NFL and the NCAA, testified that he never heard the term "NIL rights" until the players began to raise the issue in the O'Bannon litigation.
The "rights contracts" that he negotiated were based on the fact that the players had no "right" to any payment for their participation in the games. Even as the industry grew from three networks and 1,000 hours of sports per year to numerous networks and other "platforms" and 100,000 hours of sports per year, there was never any mention of such rights for players, Pilson said.
"If college players were to be paid, all would be lost," Pilson said, in what appeared to be a sincere concern about what might happen in the O'Bannon litigation.
The NCAA legal team supports its version of "rights" by relying on the now notorious NCAA Form 08-31, the release that college athletes must sign before each season. The athletes, upon signing the form, authorize the NCAA to use the athletes' names, images and likenesses "to generally promote NCAA championships or other NCAA events, activities or programs."
Kelly Klaus, one of the NCAA lawyers, used the form in court to show that the release form covered only promotional activities. The form did not include a release of live broadcast revenue, Kelly said, because the players have no right to the proceeds of television rights contracts.
The courtroom battle over the two versions of "rights" will continue through June 27. Wilken is likely to take some time to write an opinion. The key to her opinion will be her decision on "rights" -- the rights of the athletes to sell their names, images and likenesses, or the NCAA sale of television rights. Her definition of a single word could result in a restructuring of the NCAA and all of college sports.