OAKLAND — As smoking guns go, it seemed pretty mild. For high drama, the testimony was pretty mundane. But after several hours cross-examining NCAA President Mark Emmert on Thursday morning, attorney Bill Isaacson finally worked his way to the line in a nearly 4-year-old email that might as well have been in all-caps.
In a long memo to Emmert, who'd just arrived on the job in October 2010, then-NCAA vice president Wally Renfro had outlined several issues facing the organization. In a section on the commercial exploitation of student athletes, Renfro suggested it was "a fairness issue, and along with the notion that athletes are students is the great hypocrisy of intercollegiate athletics."
Isaacson seemed astonished by the notion that Emmert had never discussed the email with Renfro.
"I happened to disagree with (the assertion)," Emmert said, "so no, we didn't spend time talking about that line in his memo."
Isaacson and Emmert spent plenty of time on that and other similar issues. And if anyone was expecting more — a meltdown by Emmert, or a performance that would turn the case on its ear in either direction — they were probably disappointed. His testimony in the landmark antitrust case was historic, but its significance to the eventual outcome is difficult to gauge.
It's not quite over. He'll return to the stand Friday morning. Isaacson, the plaintiffs' attorney, declined Thursday afternoon to estimate how much longer he would keep Emmert on the stand, saying only: "I'm not done."
Neither is the Ed O'Bannon case. The trial is scheduled to run through next week. And it's hard to know what Emmert's heavily anticipated testimony actually meant. Clearly, theater was expected. The small courtroom on the fourth floor was filled; an overflow room allowed others to listen to (but not see) the testimony. O'Bannon, the former UCLA basketball player, sat at the plaintiffs' table.
There were minor gaffes and unintentionally humorous moments. In one answer during the direct examination, Emmert said that although NCAA rules have evolved, a core value remained being a "full-time athlete." NCAA lawyer Glenn Pomerantz corrected him, suggesting Emmert meant "full-time student."
"Excuse me, I misspoke," Emmert said.
A couple of times during the direct examination, Emmert's chair malfunctioned. When U.S District Judge Claudia Wilken asked what was wrong, he said, "It keeps popping up." The seat didn't get hot, presumably, until Isaacson's cross-examination began.
Emmert stuck doggedly to the NCAA's script, insisting that "amateurism," as a core value of the NCAA, is "essential" to the goal of "competitive balance" and to integrating athletics and academics. Paying players in any form, he said, including for the rights to use their images and likenesses in game broadcasts, would irrevocably harm college sports.
At one point, Wilken interjected, asking whether deferred compensation — money placed in trust until after players have finished their college athletic careers — would damage the integration of academics and athletics.
"It's the same whether you're paid today or paid tomorrow," Emmert said, saying it would harm the athletes' relationship to the rest of the academic community. He added that "to convert college sports into professional sports would be tantamount to converting it to minor-league sports."
But Emmert's definition of amateurism left room for a little change. He said anything beyond full cost-of-attendance scholarships — a concept currently under consideration — would be pay-for-play. Isaacson harped repeatedly on the evolution of the definition, suggesting it's whatever the NCAA wants or needs it to be. At one point, he asked if the definition "boils down to, 'you're not paid.' " Emmert agreed, and when asked if it was his opinion, he answered:
"It's the opinion of everyone who's been associated with the NCAA for the last hundred years," Emmert said.
Isaacson replied: "That's a pretty broad statement for a lot of people who aren't with us anymore."
"You seem to quote them," Emmert said, referring to Isaacson's recurring tactic of taking him through statements made through the years by NCAA employees showing concern over growing commercialism.
Emmert suggested fears that athletes are being exploited have always been debated within the organization.
"That's a conversation that's been going on for more than a hundred years," he said.
And it's going to go on again inside the courtroom Friday, and then for a while longer after that. What anyone thinks probably comes down to one's view going in; the question is what Wilken will think coming out (and after that, what the Ninth Circuit Court of Appeals thinks, and probably after that, what the Supreme Court thinks).
While Emmert's testimony was fascinating, sometimes entertaining and occasionally contentious, its ultimate impact is hard to quantify. Barring either a true smoking gun or a serious gaffe (or both) on Friday, that's likely to remain true when he is finally finished.