O'Bannon, Jr. v. National Collegiate Athletic Association et al

Filing 256

NOTICE of Motion and Motion to Admit Exhibits by Edward C. O'Bannon, Jr. (Attachments: #1 Proposed Order, #2 Exhibit A, #3 Exhibit B, #4 Exhibit C, #5 Exhibit D, #6 Exhibit E, #7 Exhibit F)(Bojedla, Swathi) (Filed on 6/29/2014) Modified on 6/30/2014 (cpS, COURT STAFF). Modified on 6/30/2014 (cpS, COURT STAFF).

Exhibit G
E

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
In re NCAA Student-Athlete Name and Likeness
Licensing Antitrust Litigation

Case No. 09-cv-1967-CW

EXPERT REPORT OF DANIEL L. RUBINFELD
REGARDING MERITS
September 25, 2013

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sports camps, facilities maintenance, and other support.213 In addition to spending by
institution athletic departments, the NCAA itself spends on direct benefits to studentathletes through association-wide programs, including for example, catastrophic
insurance, health and safety programs, and research.214 In the year that ended August
31, 2012, the NCAA spent about $115 million on these programs.215
113.

The NCAA has also been active in providing opportunities for students to attend

colleges or universities who might otherwise have been financially constrained from
doing so.

For example, the NCAA’s Student Assistance Fund is aimed at assisting

student-athletes with “special financial needs.”216
114.

Many organizations, including the NCAA, have expressed a concern that

collegiate athletics not become commercialized because it will undermine the
fundamental tenants of academics and amateurism, the student-athlete, that the
NCAA collaboration is designed to preserve.
115.

One such organization outside the NCAA is The Knight Commission on

Intercollegiate Athletics, founded in 1989 by an independent foundation217 to “ensure
that intercollegiate athletics programs operate within the educational mission of their
colleges and universities.”218 Many Commission members are university presidents
(or presidents emeritus), and several are former student-athletes.219
213
214

215

216

217

218

219

NCAA 2004-2011 Revenues & Expenses Report, Tables 3.15, 4.15 and 5.15.
National Collegiate Athletic Association and Subsidiaries, Consolidated Financial Statements as of and
for the Years Ended August 31, 2012 and 2011, Supplementary Information as of and for the Year
Ended August 31, 2011, and Independent Auditors’ Report, pp. 4 and 9; Interview with Jim Isch, Chief
Operating Officer at the NCAA, September 20, 2013.
National Collegiate Athletic Association and Subsidiaries, Consolidated Financial Statements as of and
for the Years Ended August 31, 2012 and 2011, Supplementary Information as of and for the Year
Ended August 31, 2012, and Independent Auditors’ Report, p. 4.
Available at
<http://www.ncaa.org/wps/wcm/connect/public/NCAA/Finances/NCAA+consolidated+financial+state
ments>. Accessed September 24, 2013.
Division I Revenue Distribution, 2011-2012, available at
<http://www.ncaa.org/wps/wcm/connect/public/NCAA/Finances/Finances+Distributions?p>, accessed
September 24, 2013.
“About the Foundation—History,” Knight Commission on Intercollegiate Athletics, available at
<http://www.knightfoundation.org/about/history/>, accessed September 24, 2013; “About the
Foundation - Background,” Knight Commission on Intercollegiate Athletics, available at
<http://www.knightcommission.org/about/about-background>, accessed September 24, 2013.
“Welcome,” Knight Commission on Intercollegiate Athletics, June 2010, available at
<http://www.knightcommission.org>, accessed August 13, 2013.
“Members and Bios,” Knight Commission on Intercollegiate Athletics, available at
<http://www.knightcommission.org/about/members-bios>, accessed August 13, 2013.

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116.

In a 2010 report, the Commission recognized the tensions that “often surface

between the core mission of universities and commercial values.”220

This is

consistent with a January 2006 Knight Commission survey that found that “3 in 5
(61%) Americans say that college sports have become too commercialized.”221
117.

The Commission’s “blueprint for restoring educational values and priorities”

stressed the need to “[t]reat[] college athletes as students first and foremost – not as
professionals” and “[e]nsur[e] that athletes are students first by limiting intrusions on
academic responsibilities and limiting commercial activities.”222 The Commission’s
report called for strengthening accountability for intercollegiate athletics in three
ways:
1. Requiring greater transparency, including better measures to compare
athletics spending to academic spending.223
2. Rewarding practices that make academic values a priority, such as
strengthening eligibility standards for participation in championships and
modifying revenue allocation practices to place a greater emphasis on
academic achievement.224
3. Treating college athletes as students first and foremost – not as
professionals. Priorities in this area include limiting intrusions on
academic responsibilities (such as games scheduled during class times)
and limiting commercial activities.225
118.

COIA, the alliance of faculty senates, is another organization pushing for less

commercialization in collegiate athletics. A 2007 COIA white paper acknowledges
220

221

222

223

224

225

“Restoring the Balance,” Knight Commission on Intercollegiate Athletics, June 2010, available at
<http://www.knightcommission.org/images/restoringbalance/KCIA_Report_F.pdf>, accessed August
13, 2013, p. 3.
“Knight Commission on Intercollegiate Athletics: Public Opinion Poll,” January 2006, available at
<http://www.knightcommission.org/images/pdfs/pollresults1-20-06.pdf>, accessed August 29, 2013, p.
1.
“Restoring the Balance,” Knight Commission on Intercollegiate Athletics, June 2010, available at
<http://www.knightcommission.org/images/restoringbalance/KCIA_Report_F.pdf>, accessed August
13, 2013, pp. 1, 16.
“Restoring the Balance,” Knight Commission on Intercollegiate Athletics, June 2010, available at
<http://www.knightcommission.org/images/restoringbalance/KCIA_Report_F.pdf>, accessed August
13, 2013, pp. 1, 11-13.
“Restoring the Balance,” Knight Commission on Intercollegiate Athletics, June 2010, available at
<http://www.knightcommission.org/images/restoringbalance/KCIA_Report_F.pdf>, accessed August
13, 2013, pp. 1, 14-15.
“Restoring the Balance,” Knight Commission on Intercollegiate Athletics, June 2010, available at
<http://www.knightcommission.org/images/restoringbalance/KCIA_Report_F.pdf>, accessed August
13, 2013, pp. 1, 16-18.

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that intercollegiate athletics sometimes clash with schools’ educational goals and
proposes a series of reforms “to ensure that athletics remains fully integrated into the
academic mission of our universities.”226

The COIA report rests on two

“Fundamental Principles”: that “[i]ntercollegiate athletics must be in alignment with
the educational mission of the institution” and that “[c]ollege sports must adhere to
the collegiate athletics model,” including the principle that “the primary reason for
student-athletes to attend a college or university is to receive an education.”227
119.

The NCAA itself agrees that the unique model of college athletics is threatened by

increasing commercialism. The NCAA Presidential Task Force, for instance, explains
that:
The reconnecting of intercollegiate athletics with higher
education has been an ongoing concern for the NCAA for nearly
two decades; yet at many institutions, athletics often still appears
oriented more toward entertainment, and the educational value of
athletics participation and competition plays a secondary role to
the win-loss column. Some critics even perceive university
presidents as protectors of the athletics process as opposed to
champions of the institution’s academic ideals. The drift of the
collegiate model toward the professional approach — in both fact
and fiction — has given credence to the concern. That perception
cannot be allowed to perpetuate if intercollegiate athletics is to
remain a powerful American higher-education tradition. The
greater the divide between intercollegiate athletics and the
academic community, the greater the risk for corruption and overcommercialization, both of which work to destroy the integrity of
the collegiate model — and indeed the university itself — and
denigrate the principles upon which it was built. Intercollegiate
athletics must be fully integrated into the academic mission of
universities and colleges. Academics must come first, and the
success of student-athletes, both on and off the field, must be the
defining characteristic of college sports.228
226

227

228

“Framing the Future: Reforming Intercollegiate Athletics,” The Coalition on Intercollegiate Athletics,
Adopted 15 June, 2007, available at <http://blogs.comm.psu.edu/thecoia/wp-content/uploads/FTFWhite-Paper2.pdf>, accessed August 13, 2013, p. 5.
“Framing the Future: Reforming Intercollegiate Athletics,” The Coalition on Intercollegiate Athletics,
Adopted 15 June, 2007, available at <http://blogs.comm.psu.edu/thecoia/wp-content/uploads/FTFWhite-Paper2.pdf>, accessed August 13, 2013, p. 6.
“The Second-Century Imperatives: Presidential Leadership — Institutional Accountability,” A Report
From The Presidential Task Force On The Future Of Division I Intercollegiate Athletics, available at
<http://www.ncaapublications.com/productdownloads/PTF092.pdf>, pp. 32-33.

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