Professional Documents
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EXHIBIT 8
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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.
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.
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
$ $
109,235,111 103,250,000
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' 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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$ $
$ $
$ $
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,
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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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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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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
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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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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
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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