How the NCAA can pull an upset and beat O’Bannon in court

The NCAA took a fairly significant hit on Thursday when its argument that athletes’ likenesses are not discussed in television contracts was disproven by those very contracts. The NCAA responded with an argument that sounds insane, but might actually work: athletes simply don’t have rights to give out.

There are two major issues in this trial. The first one — and the one most concerning the television contracts discussed on Thursday — is whether the athletes have a right to the billions of dollars in television revenue the college sports industry brings in each year. The second is whether the NCAA needs to restrict schools from paying players.

On the surface, the former seems like a no-brainer against the NCAA. People with common sense know that TV stations broadcast games to show the players, not the empty stadium, and the contracts presented at trial seem to support that. However, former CBS president Neal Pilson testified Thursday that those contracts are referring to the promotional use of athletes’ likenesses, which are technically signed over by the athletes. They don’t, he said, make a specific reference to athletes’ likenesses in televised games.

Pilson also noted that in other leagues, players are not necessarily awarded rights to television revenue, which is arguably the NCAA’s strongest point.

Is this a smoking gun? Certainly not. In fact, the judge’s determination over whether athletes should have rights is just as important as her determination over whether they do have rights. But this technicality is enough to think the NCAA could win the first argument. The problem for the organization is that, in order for college sports not to change at all, it must win both arguments, and the second one is much tougher to prove.

There are very few legal arguments the NCAA can make that justify the necessity of restricting schools from paying players, but Pilson’s testimony showed its strategy: prove that paying players would hurt business.

Pilson claims to have studied college sports and found that athletes’ amateur status is what keeps people watching games (though, in an odd statement, he later said it’s irrelevant to Alabama’s popularity).

The O’Bannon plaintiffs produced many surveys to dispute that, as well as evidence that people still watch games even when they know athletes are breaking the rules and being paid (for instance, people still watched Ohio State in the Sugar Bowl after they knew its star players broke the rules). But the NCAA says the threat of a possible backlash, since nobody really knows what will happen, is legal reason enough to deny schools and sponsors the ability to pay athletes.

Neither of these two arguments — particularly the second one — is incredibly strong, and the NCAA needs to win both of them in order to keep its amateurism model unchanged. But if the organization can pull off the upset, this is how it will do it.

Related: everything we know about what happens if O’Bannon beats the NCAA.