It all will fall apart, if it all falls apart, on the fourth floor of a modern, semi-turreted building in downtown Oakland, across the street and up the block from a bright little park. It all will fall apart, if it all falls apart, in Courtroom No. 2 on the fourth floor of that building across the street and up the block from the bright little park. It all will fall apart, if it all falls apart, in a place alive in the lower registers with the hiss of air-conditioning and the muted hum of several dozen computer screens, all of them on different desks, in front of different people, on which can be seen the basic architecture of how it all will fall apart, if it all falls apart, in this courtroom in the building across the street and up the block from the bright little park. This is the sunlit place where college athletics as we know them may have come to die.
Judge Claudia Wilken is presiding in Courtroom No. 2, and she keeps the proceedings to a schedule of iron. Court begins its session at 8:30 a.m. There is a break around ten. Court adjourns at 1:30. If things go two minutes in either direction, somebody makes a note of it because it is so unusual. They keep a tight rein on things in Courtroom No. 2, the sunlit place where college athletics as we know them may have come to die.
The case of O’Bannon v. NCAA filled Courtroom No. 2 on Thursday. The turnout required that Courtroom No. 1 be turned into an overflow room for the gathering media. This is the federal antitrust case that former UCLA basketball star Ed O’Bannon, and 19 other plaintiffs, have brought against the NCAA, arguing that they — and all current college athletes, and all the college athletes yet to come — have a right to profit from their names, images, and likenesses, and that their onetime status as college athletes does not mean that they surrendered their names, images, and likenesses to the NCAA so that the NCAA could make money off of their names, images, and likenesses in perpetuity.
In short, the plaintiffs are asking to be paid some of the ancillary money the NCAA made off of all the work they did playing their sports, a relatively simple idea for any human being who has ever actually earned a living, but, apparently, a concept so alien to the NCAA that just talking about it seems to get that organization concerned that it has contracted a virus from a distant world. We already have had in this trial the duel of the opposing economists, which sent the proceedings over the event horizon of jargon and many observers into a passable imitation of a Thorazine coma. But, yesterday, in Courtroom No. 2 on the fourth floor of a modern, semi-turreted building in downtown Oakland, across the street and up the block from a bright little park, the fundamental issue of the case clearly could be seen — and the fundamental battle clearly was joined — in the presence of two men in Judge Wilken’s courtroom. They were there promptly at 8:30. They left promptly at 1:30. But they are the alpha and omega of the trial, and they will be the most interested observers of the funerary rites, if college sports as we know them truly come here to die.
The first man wore a very nice suit and sat for most of the day in the witness box. His name was Mark Emmert, PhD. He is a career academic, a former college president at the University of Washington and chancellor of LSU, and he is now president of the NCAA. He spent most of Thursday testifying, and the court day ended, promptly at 1:30, and he still wasn’t finished. The NCAA lawyers led Emmert through an easy direct examination. However, Emmert went for the water bottle after his first question, and that was one about his résumé. Jimmy Breslin once pointed out that drinking water on the stand is a convincing tell that the witness is not comfortable. Emmert drank as though he were sitting in a sand dune.
But he held to his main point, which was that amateurism, which he defined as not paying college athletes for playing their sports, was a “core value” of the NCAA, and that to strike at amateurism, as he and his organization define it, is to strike at the very substance not only of college sports, but of higher education itself. When asked by NCAA lawyer Glenn Pomerantz if paying the players for the use of their names, images, and likenesses would be a violation of his concept of amateurism, Emmert said, “Yes, very much so.” Pomerantz then asked Emmert to explain why paying the players for the use of their names, images, and likenesses was a violation of the concept of amateurism, but the fact that the NCAA and the colleges got rich off those same names, images, and likenesses, was not. Emmert essentially restated the same point the NCAA has been making through the entire trial: The NCAA and its member schools (pardon me, its “educational institutions”) create the game itself and, therefore, are entitled to all the revenues thereby derived, out of which they give the athletes tuition, fees, room and board, and miscellaneous expenses while providing those athletes with invaluable life skills and social mobility. But the NCAA and the educational institutions get all the money. Forever. This, as Emmert argued, and as was argued by the NCAA in one of its pretrial briefs, was for the good of the athletes because the NCAA does not want to see them “exploited” by corporate interests, or at least by those corporate interests with which the NCAA has not yet signed a lucrative partnership deal.
It is here where we pause to discuss the Curious Case Of Zach Bohannon. He was a 6-foot-6 swingman for the Wisconsin Badgers this past season, when he and Wisconsin made it to the NCAA Final Four. He also was working toward his MBA. He arrived at one of the Wisconsin practices with a bottle of water from Nestlé Pure Life. The NCAA’s official bottled water is Dasani, a division of NCAA “corporate partner” Coca-Cola. Arena security stopped Bohannon — a player in last year’s Final Four — and made him take off the Nestlé label before they would allow him to practice with his team. Bohannon told a reporter, “The NCAA likes to hide behind its student-athlete model. Well, they can’t hide anymore.”
Which brings us to the second man in Courtroom No. 2. He has been there for every day of the trial, sitting unobtrusively, wearing a windbreaker and an open shirt, in the back row of the gallery. He is an avuncular soul who has regular friendly chats with the lawyers on both sides. He could be any elderly gentleman hanging out in a courtroom because it’s free live entertainment. But he’s not. He is the one who saw this day, and this trial, coming for more than four decades. Make no mistake. The man in the suit in the witness box is important. But this other man is the crow sitting upon the capitol. He is the angel of death, come a’calling at last.
I’ve known Sonny Vaccaro for as long as I’ve been following college basketball, which is practically all my adult life. I believe I first met him while a student at Marquette, when Al McGuire of sainted memory was running things. That’s when he says we first met, and I have no reason not to believe him. Sonny was an aristocrat of what was then the college basketball demimonde, the strange universe of hustlers, grifters, talent scouts, and assistant coaches who managed the underground economy of what was only then becoming a professional sport in everything but name. Everybody knew everyone else. The trade of supplying colleges with their players was a lot less formal back then. It was not yet the shoe companies, and the AAU empires, and high school tournaments with their own set of “corporate partners.” It was an easier time.
Sonny survived it all. He easily adapted to the new world of college basketball because not only did he know where all the bodies were buried, he knew everyone who’d turned every shovel as well. But there was one thing about Sonny Vaccaro that never changed. He thought the players were getting screwed. Period. As college basketball grew explosively, he argued that this only meant the players were getting screwed worse. He saw amateurism as a dodge to protect profits, and as the profits grew, he kept saying the dodge was growing more threadbare with every million the TV networks threw to the NCAA. He began with the idea that amateurism was basically absurd — a realization that belatedly came to golf, tennis, and the Olympics as well — and the more successful college basketball became, the more absurd Sonny saw amateurism becoming. He tried to make his case, but except for a few renegade (ahem) sportswriters, most of the media dismissed Sonny because of his previous career in the old underground economy.
“When I first started bitching was in 1998,” Sonny said, “when they started showing on classic sports the old movies of the games. Then you had them selling the jerseys, with Chris Webber and those guys at Michigan. EA Sports wasn’t even in my thought process.”
And then, something remarkable happened. Serious people outside of sports began to notice how absurd the whole thing had become. Joe Nocera of the New York Times made a crusade out of it, and Taylor Branch, one of the towering figures among American historians, went after the NCAA like the genuine Jeremiah in the pages of The Atlantic, hanging the label of “cartel” on the organization so firmly that the NCAA lawyers are tearing up the English language trying to keep it out of this trial. All these people came to Sonny Vaccaro, because he had been there all along, whereupon the players themselves became involved.
The O’Bannon case was only part of it. Northwestern football players tried to unionize, and they got the National Labor Relations Board to agree with them. The Grambling State football team went on strike. UConn guard Shabazz Napier celebrated a national championship by saying loudly that the players are not treated fairly. For years, Sonny and the rest of us have heard rumors about one team or another going on strike before the national championship game. It never came to anything. Now, though, the NCAA and its “amateurism model” were under siege from so many directions that it seems completely untenable. In much the same way that modern communications helped bring revolution everywhere from Tahrir Square to Zuccotti Park, what we may fairly call the spirit of Zach Bohannon is everywhere now, riding the social media that these athletes understand far better than the bureaucrats trying to keep them in line. “I feel good that we’re here,” Sonny said.
“I feel good that what I’ve been saying all those years finally got some momentum. As I watched everything, what’s happened today, these kids are sharp. These kids, notwithstanding what you may think about what they’re doing or not doing academically, they’re aware of what’s happening to them. It couldn’t have happened before, but now they feel empowered to speak out without retribution. That’s power.
“It’s their ballgame. They can spread the message. They can communicate. They know more about it. Now, here it was right in my face. All the kids knew video games. They grew up with them. Everybody knew that a video game of Arkansas and UCLA could not have been done without that video. They were watching EA Sports and re-creating those games and those kids knew. Those kids know what Madden is, and that’s why we’re here.”
He stopped for a moment and had a laugh with one of the NCAA’s lawyers. Then Sonny Vaccaro went back into the courtroom, and he sat unobtrusively in the back row. Up at the front of Courtroom No. 2, on the fourth floor of a modern, semi-terraced building across the street and up the block from a bright little park, Mark Emmert sat down again in the witness box, took a big drink of water, and waited for his cross-examination to resume.