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EXHIBIT 8

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

In re NCAA Student-Athlete Name and Likeness Licensing Antitrust Litigation

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Case No. 09-cv-1967 CW REPLY EXPERT REPORT OF DANIEL A. RASCHER November 5, 2013

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I. II.

Qualifications......................................................................................................................................... 1 Scope of Work and Summary of Opinions ............................................................................................ 1

III. NBA and NFL Yardsticks/Benchmarks are Reasonable ....................................................................... 3 A. Division I basketball is not minor league .......................................................................................... 7 B. FBS football is not minor league ..................................................................................................... 12 C. The Olympics is not an appropriate yardstick for a competitive market outcome .......................... 15 D. MLS is not an appropriate yardstick for a competitive market outcome ......................................... 16 IV. Absent the Restraint, Players Would get Group NIL Payments .......................................................... 17 A. The practice in the NFL and NBA involves agreements to compensate athletes in exchange for the use of their NILs ....................................................................................................................................... 17 B. Antitrust damages depend only on the absence of anticompetitive restraints, rather than the existence of specific NIL rights. ............................................................................................................... 22 C. FBS football and Division I basketball will remain profitable economic activities ........................ 24 Defendants economists acknowledge the sports in suit are profitable .............................................. 25 Schools wont abandon DI ................................................................................................................... 28 Schools wont reduce roster sizes ........................................................................................................ 32 V. Damages Should not be Offset by Existing non-NIL Compensation Paid to Class Members............. 35

A. The training, equipment, travel, etc., provided by yardstick/benchmark leagues and college teams alike, are not an offset to group NIL payment damages ........................................................................... 38 Coaching expenditures are currently inflated by inefficient, rent-seeking behavior ............................ 39 Practice facility expenditures are currently inflated by inefficient, rent-seeking behavior .................. 43 B. The Grant-in-Aid is not an offset to group NIL payment damages ................................................. 44 The GIA existed decades ago (and was larger than today) prior to any significant group NIL rights existing ................................................................................................................................................. 45 If the GIA were to be viewed as an offset to damages, it would have to include the damages from all restrained revenue sources ................................................................................................................... 46 The cost to universities of a GIA is lower than the listed expense ...................................................... 47 C. From an economic perspective, consumer surplus is not deducted from antitrust damages............ 48 VI. Equal Sharing of Group Licensing Pools is Not Anticompetitive. To the Extent the NCAA would Require All Licensing to be Group Licensing, that is a Less Restrictive Alternative to the Current Rule ... 51 A. The two models do not create a conflict among class members ...................................................... 54 VII. Defendants Economists Claim that Removing the Restraint in Suit would Harm Demand is Unproven, and there is Strong Evidence it is False ...................................................................................... 58 A. Universities already pay college athletes, as Defendants economists have noted .......................... 58 B. College sports are popular but this says little about the importance of amateurism ..................... 62 C. Sports that have transitioned away from amateurism have not experienced decreased consumer demand ..................................................................................................................................................... 66 Amateur baseball was/is less popular than professional baseball ........................................................ 66 Amateur tennis was/is less popular than professional tennis ............................................................... 68 Amateur rugby was/is less popular than professional rugby................................................................ 69 D. Defendants evidence from polls and surveys does not speak to consumer purchasing decisions .. 70

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E. In the past, the NCAA itself has argued that amateurism decreases, rather than increases consumer demand ..................................................................................................................................................... 74 F. The NCAA acknowledges that the broadcast and other NIL-based licensing of it and its members are already commercial ......................................................................................................................... 75

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76.

As shown in Exhibit 5, in 2007, coaching pay in college football captured 3.5%

of a teams revenue, while in the NFL coaching pay represented only 1.5% of team revenues. Similarly for the 2008-2009 season, mens Division I basketball coaches captured 11.1% of revenue, but in the NBA they received only 3.2%.131 Not only do college coaches receive a higher share of their teams revenue, but their pay is growing at a much faster rate than NFL and NBA coaches. The average annual growth in coaches pay in college football from 2007 to 2012 was 9.7% compared with 4.5% in the NFL. The annual average growth rate in coaches pay for Division I basketball from 2005 to 2012 was 11.4% compared with 1.6% in the NBA. If athletes were to receive some group NIL payments, competition for players would decrease the artificially high demand for college coaches and lower their pay, thus essentially reallocating money away from coaches and towards athletes.

124

Crabtree, Jeremy. Elite teams show value of recruiting. ESPN. 2013. http://espn.go.com/collegefootball/hot?id=9395142. Accessed October 17, 2013. 125 Moore, David Leon and Jack Carey. Lane Kiffin leaves Tennessee to succeed Pete Carroll at USC. USA Today. 13-Jan-10. Accessed October 17, 2013. http://usatoday30.usatoday.com/sports/college/football/pac10/2010-01-12-lane-kiffin_N.htm. 126 Petraglia, Mike. How a fired-up Steve Addazio plans to make Boston College football relevant again. WEEI Boston Sports News. 7-Aug-13. http://m.weei.com/sports/boston/football/boston-college/mikepetraglia/2013/08/07/how-fired-steve-addazio-plans-make-b. Accessed October 17, 2013. 127 Tech announces new head basketball coach. The Whistle, Georgia Tech Faculty/Staff Newspaper, Volume 24. No. 14. 10-Apr-00. Accessed October 17, 2013.https://smartech.gatech.edu/bitstream/handle/1853/39824/2000-04-10_24_14.pdf 128 Gleeson, Scott. Starting Five: The best recruiting college hoops coaches. USA TODAY. 12-July2013. http://www.usatoday.com/story/sports/ncaab/2013/07/12/starting-five-the-best-recruitingcoaches/2511697/. Accessed November 4, 2013. 129 Langelett, George. The Relationship between Recruiting and Team Performance in Division IA College Football. Journal of Sports Economics, 2003. http://jse.sagepub.com/content/4/3/240. Accessed October 22, 2013. 130 Lloyd, Nathan S. NCAA Division I Football Bowl Subdivision: The Importance of Recruiting and Its Relationship with Team Performance. Utah State University. 1-Aug-2011. http://digitalcommons.usu.edu/cgi/viewcontent.cgi?article=1056&context=gradreports. Accessed October 22, 2013. 131 As noted in an article on coaching pay, the reported income of college head coaches is typically missing bonuses, incentives, deferred compensation and non-taxable benefits (e.g., Mike Krzyzewski, basketball coach, was paid $8.9 million to coach for Duke University in 2010-11 once all income sources were included). See Dosh, Kristi (May 16, 2012). Bill Belichick highest-paid coach again. http://espn.go.com/blog/playbook/dollars/post/_/id/719/bill-belichick-highest-paid-coach-again. Accessed October 30, 2013.

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Exhibit 5: Coaching Pay in FBS Football and DI Basketball Compared to the NFL and NBA

Football Head Coaches Salaries for NCAA Division I-A and NFL, 2007
Salaries NCAA Division I-A* NFL**
Note: *NCAA Division I-A include 107 schools with football headcoach's salary data on USA Today *NCAA Division I-A Revenues are measured for only the 107 schools with salary data *For each of the 107 schools with salary data, Revenue is football revenue and institutional unallocated revenue distributed to football based on percentage of football revenue over sum of all sports and gender specific revenues **NFL salaries are estimates of 32 NFL teams on CoachesHotSeat com

Revenue $ $ 3,116,566,231 7,090,000,000

% of Revenue 3.5% 1.5%

$ $

109,235,111 103,250,000

Source: EADA, CoachesHotSeat com, Rodney Fort's RodsSportsBusinessData, USA Today

Basketball Head Coaches Salaries for NCAA Division I* Schools and the NBA, 2008-2009
Coaches Salaries Basketball Revenues % of Revenue $ 73,955,503 $ 664,835,937 11.1% $ 105,580,000 $ 3,348,000,000 3.2%

NCAA Division I* NBA**


Notes:

*'NCAA Division I' teams include 60 of the 65 participating schools in the 2009 NCAA M en's Basketball Tournament *For each of the 60 schools, Revenue is M en's Basketball Revenue and institutional unallocated revenue distributed to men's basketball based on the percentage of men's basketball revenue over sum of all sports and gender specific revenues **NBA teams include 26 teams with coach's salary data Basketball Revenues are measured only for the 26 teams with salary data Sources: Wilson_[Journal of Issues in Intercollegiate Athletics]NCAA Division I M en's Basketball Coaching Contracts_2011 pdf WeaksideAwareness com, EADA, Rodney Fort's RodsSportsBusinessData, Forbes com

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Average Growth in Top Coaches Salaries* in NCAA Division I and the NFL
2007 1,846,753 4,975,000 2011 2,686,630 5,920,000 2012 2,938,126 6,210,000 % Change since % Change since 2007 2011 CAGR 2007-2012 59% 9.4% 9.7% 25% 4.9% 4.5%

NCAA Division I Football NFL**

$ $

$ $

$ $

Sources: BusinessInsider com, Forbes com, USA Today Notes: *Top Coaches Salaries include top 10 salaries from the 32 NFL teams (31%) and top 38 of 120 (32%) for 2007,2011 and top 39 of 124 (31%) for 2012 of NCAA Division I Football teams **The tenth highest coach's salary for NFL in 2011 is missing It was replaced with the ninth highest NFL coach's salary for 2011

Average Growth in Top Coaches Salaries* in NCAA Division I and the NBA
2005 NCAA Division I Basketball $ NBA $ 1,371,848 4,670,000 $ $ 2011 2,684,635 5,230,000 $ $ 2012 2,912,645 5,230,000 % Change since % Change since 2005 2011 CAGR 2005-2012 112% 12% 8.5% 0.0% 11.4% 1.6%

Sources: Forbes com, Insidehoops com, Richest com, USA Today Notes: *Top Coaches Salaries include top 10 salaries from the 30 NBA teams (33%) and top 22 of 65 (33%), top 23 of 68 (34%) for 2011 and top 20 of 62 (33%) for 2012 of NCAA Division I Basketball teams that participated in 2006,2012 and 2013 M arch M adness

Practice facility expenditures are currently inflated by inefficient, rent-seeking behavior 77. Similarly, schools spend much more on practice facilities than they would absent

the restraint in suit. As discussed in previous reports, training/practice facilities are often used to lure recruits thus, this is a form of non-price competition. In the unconstrained yardstick leagues, teams still need the same capabilities as college athletes in terms of training, equipment, etc., yet colleges spend much more on these facilities than in the NBA or NFL as a percentage of revenue.132 78. Dr. Stirohs claim that a reduction in spending on coaches salaries and training

facilities will harm class members133 confuses rent-seeking waste with actual benefits. An imported foosball table is unlikely to offer much in terms of actual, additional utility to a recruit over a domestic one,134 but by being able to show the recruit the program is willing to spend
On average, NBA teams spent 12% of total annual revenue to build/renovate a practice facility compared to 190% of DI college mens basketball revenue (or 147% of total basketball revenue, or 23% of total athletic department revenue) in a recent sample. In football, NFL teams spent on average 14% of total annual revenue to build/renovate a practice facility compared to 65% of FBS college football revenue (or 30% of total athletic department revenue). See Pro vs NCAA Practice Facilities.xlsx. 133 Stiroh Merits Report, p.17. 134 Is there anything in athletics more nonsensical than buying foosball tables from Barcelona for the facility at Oregon? Do the chief tenants of the building, ages 18 to 22 and there to play football, notice or
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(less prestigious) non-BCS Bowls, the Belk Bowl, the gift that players receive (in addition to a customized watch) is a debit card with money on it to allow each player to go shopping at the Belk department store, buying whatever he wants, with free shipping of his purchases back to his home: Upon arrival, players will receive a customized Fossil watch with the Belk Bowl logo imprinted on the face, and a Belk gift card with the game logo printed on the front. Players will be able to shop throughout the store, and Belk will ship for free the items to the address chosen by the players. Additional shipping will cost the player $8 per address. The school representing the Big East Conference will shop first, followed by the ACC team.182

112. The (more prestigious) BCS Bowls provide valuable payments in the form of electronic gadgets, bicycles, and furniture. In many cases, players are able to visit a luxury suite filled with merchandise and to choose among a check-list menu of payment options: Among BCS games, the players competing in the Rose Bowl Game presented by Vizio will have the opportunity to choose a Vizio 26-inch LED LCD HDTV or Vizio eight-inch Wi-Fi/Bluetooth tablet, items that will be part of an overall gift suite. Gift suites are rooms hosted by the bowl committee, operated by Carrollton, Texas-based Performance Award Center, and set up at the team hotel or a school campus. Players, coaches and VIPs are given checklists to choose their game memorabilia from a variety of items, including Sony electronics, Trek mountain bikes,

182

http://www.sportsbusinessdaily.com/Journal/Issues/2011/12/05/In-Depth/Bowl-Gifts.aspx. Accessed November 4, 2013.

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61 Lane recliners, Ogio backpacks and Apple iPods. At least 14 of this years 35 bowl games will offer gift suites to players.183 113. As another example, all three of the U.S. military academies, West Point, Annapolis, and the Air Force Academy at Colorado Springs, all play Division I basketball and FBS football. All three provide the components of a GIA, but in addition each academy pays its athletes a salary, and considers them employees, deducts tax withholding from their paychecks, etc.184 The games between these academies are popular as are games between one academy and other FBS schools. As an example, the Notre Dame vs. Navy game is popular and is featured annually on major networks.185 114. Defendants economists seek to have it both ways: the NCAA and its members pay class members lavishly186 and yet they dont pay them at all. The reality is, according to a study by the NCPA and Drexel University, many athletes in FBS football and Division I basketball are often below the poverty level.187 The apparent contradiction stems from two rhetorical sleights of hand first, as discussed above, Defendants economists attribute virtually all payments made into the athletics system as benefits to class members. The second element of the rhetoric is that the NCAA defines away the pay element of any actual compensation the athletes do receive, proclaiming in its bylaws that all compensation it provides is not pay, while on the other hand, any compensation is chooses to ban is pay.188
http://www.sportsbusinessdaily.com/Journal/Issues/2011/12/05/In-Depth/Bowl-Gifts.aspx. Accessed November 4, 2013. 184 Cadets at West Point are paid more than $900 per month. Midshipmen at the Annapolis receive $929 per month. Air Force Academy cadets received $846 per month as of April 2009. (http://www.usma.edu/admissions/SitePages/FAQ_Life.aspx, Accessed November 1, 2013; http://www.usna.edu/Admissions/geninfo htm, Accessed November 1, 2013; http://www.usafa.af.mil/information/factsheets/factsheet.asp?id=9420, Accessed November 1, 2013) 185 This years Notre Dame/Navy game was aired on NBC (the broadcast network) the weekend before this report was submitted. The salaried employees of Navy lost in a close contest to the unsalaried nonemployees of Notre Dame, 38-34. 186 By Defendants economists reckoning, being coached by individuals who earn millions pays class members compensation that is far higher than the median household income in the United States (http://usatoday30.usatoday.com/money/economy/story/2012-02-09/income-rising/53033322/1. Accessed November 4, 2013.) 187 The Price of Poverty in Big Time College Sport http://www ncpanow.org/research?id=0024. Accessed November 4, 2013. 188 Under NCAA bylaw 12.02.7, any payment that the NCAA authorizes has zero implications for the NCAAs self-defined version of amateurism because pay is defined to be the receipt of funds, awards or
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compensation has grown (and which Defendants economists claim is between , if amateurism mattered to demand, demand would have declined. It did not, and this is telling. 119. Also telling are the fleeting examples when exceptions to the rules have allowed athletes who have violated some of the restraints in suit to play and thus gauge consumer demand for non-amateur college sports. These few examples have been discussed by Dr. Noll in his past reports, such as the high demand to watch the Ohio State athletes whom the NCAA had determined had been paid based on their fame as athletes:200 Another piece of evidence pertains to the reactions of fans to recent violations of NCAA rules. During the 2010 football season, six Ohio State players, including star quarterback Terrelle Pryor, were found to have sold championship rings, jerseys and trinkets in return for reduced prices for tattoos and money. The NCAA announced punishments for these athletes in late December 2010, a few days before Ohio State played Arkansas in the Sugar Bowl. Rather than ban these players from the game, the NCAA allowed them to play but ruled that five would be required to sit out the first five games of the 2011 season and the sixth would be forced to sit out only the first game.201 The violations received extensive national publicity, so sports fans knew that Ohio State was playing in the Sugar Bowl while using six athletes who had violated the NCAAs rules on permissible benefits. Despite the presence of these athletes in the game, the 2011 Sugar Bowl drew 25 percent more viewers than the 2010 game had attracted. All of the other 2011 BCS games had double-digit drops in viewers compared to the previous year.202 Thus, the violations of the NCAAs rules apparently had no effect on interest in this game. 120. Similarly, Dr. Noll also explained how the recent natural experiment involving Johnny Manziels half-game suspension demonstrated that consumer demand was enhanced when Manziel, an athlete found to have violated the NCAAs prohibitions on athletes commercializing their NILs, played versus when he did not:203

200 201

See Noll Liability Report, pp. 127-8. Ohio State Football Players Sanctioned, ESPN, December 26, 2010, at http:// sports.espn.go.com/ncf/news/story?id=5950873. Accessed September 9, 2013. 202 Michael Hiestand, ESPNs Bowl Ratings Are No Bonanza, USA Today, January 12, 2011, at http://www.usatoday.com/sports/columnist/hiestand-tv/2011-01-11-bowl-ratings_N htm. Accessed September 23, 2013. 203 See Noll Liability Report, pp. 128-9.

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65 Manziel was required to sit out the first half of his teams opening game against Rice. ESPN televised the game in its early Saturday time slot (noon Eastern Daylight Time). Quarter-hour Nielsen audience ratings for the game rose in the second half after Manziel entered, peaked in the third quarter as the game changed from close (28-21 at the half) to an easy victory for Texas A&M (52-28), and finished 61% above the average rating for ESPNs early Saturday games in 2012.204 Manziels second game this season pitted Texas A&M against top-ranked Alabama, and this game was televised by CBS. The television ratings for this game were the highest of any college football game on CBS in 23 years, with an audience rating that was up 200% over the rating of the opening SEC game on CBS, Alabama-Arkansas.205 121. Outside of these limited NCAA experiments, the best evidence has come from other sports where it was originally believed that demand would collapse in the absence of amateurism. In his liability report, Dr. Noll has laid out the empirical evidence that disproved the claim that consumer demand for the Olympics hinged on the amateur status of the athletes.206 The commercial success of the Olympics is also useful for demonstrating the distinction between consumer surveys that focus on demand and other polls of public opinion. In 2004, in the face of the commercial popularity of the no-longer-amateur Olympics, nevertheless a Harris Poll found that 51% of the adult public believe that the Olympics should be restricted to amateur athletes only.207 There was a clear age skew in the poll results, with Substantial majorities of those over age 65 (68%) and of those aged 50 to 64 (62%) favor[ing] not allowing professional athletes to participate. Any informed analyst of consumer demand would know that efforts to correlate consumer demand with questions outside of a proper economic environment is likely to shed little light on actual consumer behavior in the face of

Rachel Bachman, How Johnny Football Moved the TV Needle, Wall Street Journal September 13, 2013, at http://online.wsj.com/article/SB10001424127887323846504579071533162496244 html. Accessed September 24, 2013. 205 Chip Patterson, CBS: Alabama-Texas A&M TV Ratings Highest in 23 Years, CBSSports.com, September 15, 2013, at http://www.cbssports.com/collegefootball/eye-on-college-football/23663035/cbsalabamatexas-am-tv-ratings-highest-in-23-years. Accessed September 24, 2013. 206 See Noll Liability Report, pp. 130-1. 207 Harris Poll, U.S. Attitudes to Olympics; * Half of Adult Public Would Limit Participation to Amateurs. Available at http://www.thefreelibrary.com/U.S.+Attitudes+to+Olympics%3B+*+Half+of+Adult+Public+Would+Limit ...-a0119962379. Last accessed October 16, 2013.

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real-world trade-offs. For example, one could not conclude that 68% of those over the age of 65 opted not to watch the Olympics in 2004 over their displeasure over athlete compensation.

C. Sports that have transitioned away from amateurism have not experienced decreased consumer demand 122. Outside of these examples, many other sports have also found that long-held beliefs that consumer demand was driven by amateurism were unfounded. I lay out several of these additional examples in the remainder of this section. Amateur baseball was/is less popular than professional baseball 123. In previous reports, I have discussed how MLBs movement from a system of restrained pay (reserve clause) to free agency was not met with a decrease in demand, but instead the exact opposite.208 However, nearly a century prior to this, baseball was among the first sports to address the question of whether restricting all direct payment to athletes enhanced demand for the sport. Similar to the NCAA today, there were under-the-table payments in baseball during the 1860s and competitive pressures to pay the players. Traditionalists in the 1860s insisted amateurism enhanced consumers appreciation of the product of baseball: Some, like the Albany Knickerbockers, went all-out in urging a return to the pure amateurism of former days. They denounced the growing custom of playing for money because it would destroy baseballs enviable reputation as a sport and create unfriendly rivalry between clubs.209 Nevertheless, demand for quality led many teams to make payments under the table during the 1860s, as chronicled by David Quentin Voight210: The play-for-pay movement began at least a decade before 1869, with various rewards going covertly to players one of the best paid was star pitcher Jim Creighton, who received sub rosa rewards from the Brooklyn Excelsiors With high-priced stars raising the costs of competition among amateur clubs, many were obliged to seek new ways of meeting
208 209

Rascher Declaration, pp. 36-37. Rascher Damages Report, pp. 16-19. Seymour, Harold. Baseball: The Early Years. Oxford University Press. 1960. Pg. 55-59. 210 Voight, David Quentin. American Baseball: From the Gentlemans Sport to the Commissioner System. Vol 1. The Pennsylvania State University Press. 1983. Pg. 14-22.

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67 costs of travel, maintenance, and equipment At their Union Grounds in 1864, the New York Mutuals charged ten cents a head and regularly divided receipts among players. The same policy was followed by the Brooklyn Atlantics at their Capitoline Grounds. [Pg 15] With good players winning increased recognition [around 1868], many clubs began bidding for their services. At first the talent struggle was a covert one, with sub rosa offers made in the form of shares of gate receipts, bribes from gamblers, offers of political sinecures, and offers of cash or gifts. Cash payments were the last resort, and such offers went only to exceptional players By 1868 not only did newspapers tell of whole teams that were being paid for playing, but few even expressed surprise. [Pg 19] 124. Finally a test of the acceptance of professionalism in 1868 was successful, and by 1869 the Cincinnati Red Stockings were fully professional (and won nearly all of their games), leading other cities to adopt professionalism for their teams because of the Reds success. As described by Harold Seymour: ... soon even the reformers retreated to new positions. They ceased their frontal attacks on professionalism and directed their fire at the hypocrisy of undercover tactics. They even went so far as to concede that professionalism had advantagesif conducted openly and properly. Others proclaimed that the time had arrived when professionalism was essential to the games progress, and that there was no reason why the Association should not officially recognize a group of professionals If professionalism were made legitimate, evils in the hiring system would disappear. What was being done slyly could be done publicly, and anyone who wanted to make baseball his business could do so honestly and openlynot as corrupt alderman and assemblymen receive their bribes. Another argument for professionalism was that it would improve the caliber of play. As the New York Clipper explained, the professionals had the time to master the game and play it at its best. The opening game of 1868 between picked nines from New York and Brooklyn was a trial balloon to gauge public support of professionalism, because it was well known that the majority of players on both sides were pros. Professionalism took [a] giant step forward in 1869 with the formation of the first admittedly all-professional club in America, the Cincinnati Red Stockings who recruited talent from a broad geographical area to put together a first class team.. The Reds traveled throughout the East, and then went all the way to the West Coast, playing before an estimated 200,000 people altogether. Other cities quickly adopted the professional model after Cincinnatis success; Chicago HIGHLY CONFIDENTIAL

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68 enthusiasts subscribed $20,000 for a professional club of their own, and advertised for players in newspapers and leading sports journals.211 125. Clearly in baseball, amateurism was not demand-enhancing and concerns that professionalism and commercialism would reduce the long-term health of the sport proved unfounded. Amateur tennis was/is less popular than professional tennis 126. The movement of tennis from amateur to professional in the 1960s was accepted by the public as being legitimate, and thereafter popularity increased. In The Triumph of Professionalism in World Tennis: The Road to 1968, Kevin Jefferys noted that shamateurism was rife in top-level tennis,212 and by 1967, the LTA [Lawn Tennis Association] gave its backing to a joint proposal from BBC television and the AELTC [All England Lawn Tennis Club] to hold a professional tournament on the main Wimbledon show-courts over the August bank holiday. This event, won by Rod Laver, attracted large crowds, and the standard of play was regarded as much higher than at the official Championships a few weeks earlier. The AELTC felt a loud message had been sent: the public would support high-quality tennis whatever the status of the players.213 127. In the U.S., open tennis began in 1968 and thereafter tennis grew tremendously in popularity. Since 1990, attendance at the U.S. Open grew from about 422,000 to 720,000 in 2008.214 The Australian Open nearly doubled attendance over that time period, and at Wimbledon and the French Open, attendance rose substantially also. Competitive balance across the globe also improved as revenues, demand, and athlete remuneration grew in

Seymour, Harold. Baseball: The Early Years. Oxford University Press. 1960. Pg. 55-59. Shamateurism is the notion that amateur players were suspected of receiving money under the table. Jefferys, Kevin. The Triumph of Professionalism in World Tennis: The Road to 1968. The International Journal of the History of Sport, Vol. 26, No. 15, December 2009, Pg. 2258. 213 Jefferys, Kevin. The Triumph of Professionalism in World Tennis: The Road to 1968. The International Journal of the History of Sport, Vol. 26, No. 15, December 2009, Pg. 2265. Emphasis added. 214 Robson, Douglas. Grand Slams popularity creates space squeeze for tennis fans. USA Today. 19-Jan09. http://www.usatoday.com/sports/tennis/2009-01-18-grand-slam-attendance_N htm. Accessed July 20, 2012.
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professional tennis in 1978, half of the worlds top 100 tennis players came from the U.S., but by 2008, only 7% were from the U.S.215 Amateur rugby was/is less popular than professional rugby 128. Similar to the variety of definitions of amateurism that Dr. Noll describes in his Liability report, the International Rugby Board eventually found little evidence of procompetitive benefits of amateurism. Dilwyn Porter notes: By this time amateurism had become impossible to defend, not least because it had become impossible to define with any confidence. A committee set up by the International Rugby Board (IRB) admitted openly in 1995 that the term amateurism is now incapable of a constructive or clear explanation. The rules had been broken so often that they were meaningless. Top rugby union players in the early 1990s may not have been paid wages but the generous expenses that they claimed, along with non-cash benefits such as sponsored cars, ensured that they were professionals in all but name. The fact that they are not paid a wage or a salary, noted Gerald Kaufman, chair of a parliamentary committee that investigated the relationship between rugby union and rugby league, might seem to some people a dodge to preserve the myth of amateurism. One of the reasons why the RFUs last-ditch defence of a principle that they could no longer explain appeared so anachronistic was that by the mid 1990s rugby union stood almost alone. Rowing, another sport with a long history of social exclusivity, held out a little longer; the famous Henley Regatta, the equivalent of Wimbledon in tennis, becoming an open competition for the first time in 1998. As in rugby union, this decision effectively legitimized arrangements that already applied to elite performers, such as Olympic gold medallists Steven Redgrave and Matthew Pinsent.216 [footnotes omitted] 129. As with the NCAA, the primary claimant of the benefits of amateurism was the RFU [Rugby Football Union] itself: So amateurisms survival was also based on its ability to enforce a rigorous discipline over its athletes and foster a climate of fear and suspicion: ignorance of the law is no defence the RFU warned its players ominously.217
215

Hoy, Peter and Kate Macmillan. Top-Ranked Tennis Players By Country, 1978-2008. Forbes. 22Aug-08. http://www.forbes.com/2008/08/21/tennis-players-ranks-tennisbiz08-biz-sportscx_ta_0821rank_map html. Accessed May 2, 2012. 216 Porter, Dilwyn. We dont want amateurs, get professionals; the end of Victorianism and the erosion of the mature hegemony in British sport, c. 1960-2000. North American Society for Sports History Annual Conference, University of California, Berkeley. June 2012. 217 Draft paper presented at NASSH 2012 by Tony Collins.

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70 It also provided the ideology with which administrators could justify their existence. In order to define and police amateurism, structures of control and sanction had to be created.218 But amateurism did eventually crumble. The power of commercialism, especially television, was too strong for administrators to resist. The protest movements of the 1960s and the growth of players trade unions undermined the traditionally deferent position of the athletes. By 1995 no major world sport defined itself as amateur - and, as some journalists and academics have argued recently, in the not too distant future perhaps even the last bastions of college football and basketball will likewise fall.219 130. In 1995, the International Rugby Board (IRB) which governs (then-amateur) Rugby Union throughout the world removed the ban on payments to players.220 The decision to turn professional increased audience interest. The IRBs Rugby World Cup, which had previously been amateur, saw its television audience multiply by ten from 1987 (amateur era) to 1999 (professional era) and its profits rise by twenty times.221 Similarly, in New Zealand prior to the end of amateurism, media coverage of sports was deregulated causing competition for media rights for rugby (akin to changes in college sports post-Board of Regents). This increased the derived demand for players. Once amateurism was disavowed in the mid-1990s, salaries grew very quickly, but so did the sports income (growing from $10 million in 1993 to about $80 million in 2000). D. Defendants evidence from polls and surveys does not speak to consumer purchasing decisions 131. In my last report222 (and in my class certification report223), I discussed how the change in MLB from the restrained-pay reserve clause era to the free agency era caused many to pronounce that baseball would be destroyed. These claims included statements by the

218 219

Draft paper presented at NASSH 2012 by Tony Collins. Draft paper presented at NASSH 2012 by Tony Collins. 220 Rookwood, Dan. A brief history of rugby. The Guardian. 6-Oct-03. http://www.guardian.co.uk/sport/2003/oct/06/rugbyworldcup2003 rugbyunion6. Accessed May 1, 2012. 221 Owen, Dorian P. and Clayton R. Weatherston. Professionalization of New Zealand Rugby Union: Historical Background, Structural Changes and Competitive Balance. University of Otago, Economics Discussion Papers, No. 0214. December 2002. Pg. 6. 222 Rascher Damages Report, pp. 16-19 223 Rascher Declaration, pp. 36-37

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presidents of the American and National League saying that if the reserve clause were replaced by free agency, Professional baseball would simply cease to exist224 much as Dr. Rubinfeld opined that

225

In my previous report I demonstrated that baseballs revenues boomed

after the introduction of free agency (in 1976) and thus the predicted demise was disproven. 132. However, since 1976, there have been repeated surveys purporting to show that a vast majority of baseball fans find the higher salaries that have ensued from free agency to be excessive and/or problematic. I have gathered 10 such survey-based studies.226 Despite this
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Press Release of National League Pres. Chub Feeney and American League Pres. Joe Cronin, January 1970, quoted in Abraham Iqbal Khan, Curt Flood in the Media: Baseball, Race, and the Demise of the Activist Athlete, 92-93. A similarly dire (but false) prediction was made by the general manager of the NFLs Kansas City Chiefs when the NFLs reserve clause was threatened: Anything that would eliminate the reserve clause would be very damaging to professional football. See Foundations of Pro Sports on Shaky Ground: Analysis, Dec 22, 1974. Accessed October 24, 2013. 225 Rubinfeld Merits Report, p. 20. Dr. Rubinfeld testified to the contrary in deposition: I am not saying that you would have no student athletics if you somehow disbanded the NCAA. There would be some other institution and I'm sure you would still have student athletics. It would be silly to say there would be nothing, and that's not what I was suggesting here. ... I am not saying that without these specific rules, there would be no programs of college athletics. That would be a totally inappropriate statement to make. (Deposition of Daniel Rubinfeld, October 12, 2013, pp. 133-4.) 226 Grimsley, Will. Steinbrenner Resentful of 'Mr. Moneybags' Image. Ocala Star-Banner. March 22, 1977. http://news.google.com/newspapers?id=s6VPAAAAIBAJ&sjid=9gUEAAAAIBAJ&dq=steinbrenner%20d ead%20set%20against%20free%20agency&pg=4054%2C5248352. Last Accessed June 29, 2012. Field, Mervin D. Joe Fan sympathizes with 'overpaid' players. The Modesto Bee. May 21, 1982. http://news.google.com/newspapers?id=oj0uAAAAIBAJ&sjid=wdcFAAAAIBAJ&dq=survey%20baseball %20players%20overpaid&pg=5453%2C2743160. Last Accessed June 29th 2012. Rummler, Gary C. Cheers and boos: Fans in poll side with baseball owners. The Milwaukee Journal. August 9th 1985. http://news.google.com/newspapers?id=o8caAAAAIBAJ&sjid=USoEAAAAIBAJ&dq=survey%20basebal l%20too%20much%20money&pg=4619%2C8103531. Last Accessed June 29, 2012. https://www.google.com/#hl=en&safe=off&tbs=ar:1&tbm=nws&sclient=psyab&q=survey+baseball+overpaid&oq=survey+baseball+overpaid&gs_l=serp.3...2684993.2685553.12.2685 616.8.5.0.0.0.0.338.850.0j2j1j1.4.0...0.0.eT2AaM4R89k&pbx=1&bav=on.2,or r_gc.r_pw.r_cp.r_qf.,cf.osb &fp=3244304a0c4b9e0d&biw=1313&bih=705. Last Accessed June 29, 2012. Thomas Jr., Robert McG. Baseball; Bucks Too Big, a Majority Tells Poll. The New York Times. April 10, 1991. http://www nytimes.com/1991/04/10/sports/baseball-bucks-too-big-a-majority-tells-poll html. Last Accessed June 29, 2012. Poll: Americans feel players make too much money. Sun Journal. February 1, 1995. http://news.google.com/newspapers?id=bNsgAAAAIBAJ&sjid=G2sFAAAAIBAJ&pg=3998%2C326191. Last Accessed June 29, 2012.

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133. Similarly, after the Anaheim Angels of MLB changed its name to the Los Angeles Angels of Anaheim (LAAA) in the mid-2000s, a survey of 1,100 people in the region showed that about three-fourths preferred the name Anaheim Angels over the newer LAAA. While a small percentage of those surveyed felt the name was important, nevertheless about 23 percent of respondents said they would no longer support the team because of the name.227 Despite this claim, the team generated its highest attendance ever during the season that began just a few months after the Court allowed the name to change. Overall, the Angels draw about one million more fans per year now than they did in the early 2000s.228 There is virtually no empirical evidence that the opinions expressed in the survey were related in any way to any downward impact on consumer demand for the product. 134. Essentially, any polls or surveys where respondents express a belief that college athletes should not be paid (although they already are paid) or should not be paid more are insufficient to determine whether fans would lower their purchases of FBS football and DI mens basketball (whether through lowered purchase of tickets and commercial merchandise, through reduced viewership, etc.) if the specific restraints in suit were lessened. Unless these surveys focus very specifically on questions related to changes in consumption (and even then, as the LAAA example shows, surveys may overstate changes in consumption because consumers dont always live up to their claims) and specifically on NIL-based royalties, simply finding the many fans prefer lower pay to higher pay does not translate into evidence of the potential for tangible changes in consumer demand. As shown in the exhibit above, between 62% and 72% of survey respondents from 1981-1995 claimed that MLB players were overpaid, yet demand continued to rise. 135. Perhaps most important is the fact that if the restraint in suit were abolished, the schools could choose not to make group NIL payments if they determined that the demand for

227 228

http://www.ocregister.com/articles/name-18088-team-angels.html last visited November 4, 2013. http://www.baseball-reference.com/teams/ANA/attend.shtml last visited November 4, 2013.

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