Plaintiffs in the upcoming NCAA antitrust trial will not be able to introduce as evidence the recent decision that allowed Northwestern football players to vote on whether they wanted to join a union.
U.S. District Judge Claudia Wilken ruled Friday that lawyers for former UCLA basketball star Ed O’Bannon and 19 others may cite the decision by a regional director of the National Labor Relations Board allowing the vote in their trial brief, but may not introduce the findings as evidence once the trial begins.
The decision was part of a series of rulings covering outstanding motions in the case. As part of the filing, Wilken again ordered the trial that could reshape major college sports to begin June 9 in federal court in Oakland, California.
O’Bannon’s attorneys wanted to introduce the NLRB ruling as part of a suit - first filed in 2009 - that alleges the NCAA is in violation of federal antitrust laws in the way it controls big money college sports. The plaintiffs are seeking an injunction that would allow an open marketplace for players to sell their services and win expanded benefits.
While Wilken ruled in favor of the NCAA in its bid to keep the NLRB decision out of the trial, she also ruled against the NCAA’s motion to exclude testimony about the wealth of any NCAA or university employee. Wilken said evidence of income derived from revenue generated by college athletics is potentially relevant to claims by plaintiffs that others are profiting from college athletics while at the same time illegally restraining the athletes themselves from making money.
Wilken also ruled against the NCAA in motions to exclude evidence about injuries in college sports, saying the amount of injuries is relevant and that there is minimal risk of prejudice because the case will be tried by the judge herself, and not a jury. She also denied an NCAA motion to not allow evidence or arguments that are not related to live broadcasts, rebroadcasts or videogames featuring college athletes.
Wilken ruled in favor of the NCAA, though, in its motion to bar admission of a 1997 book written by longtime former NCAA executive director Walter Byers, saying it is inadmissible hearsay. In the book, Byers criticized the NCAA for making money while not paying athletes.
Wilken declared moot one other motion from the NCAA objecting to the testimony of Mary Willingham, a University of North Carolina learning specialist who questioned the literacy level of some school athletes, telling CNN in January that the majority of football and basketball players she studied from 2004-12 read at below-grade levels. She has also said no-show classes requiring only a research paper at semester’s end - part of larger findings of academic fraud in one department - were used to keep many athletes eligible.
The school has disputed her research and three outside researchers said in April that her data did not support low athlete literacy claims. Plaintiffs told Wilken in a hearing earlier this week that they did not plan to call Willingham to the stand in the trial.
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