Boies, Schiller & Flexner Report - July 2015
Interview with Bill Isaacson
Mr. Isaacson was co-lead trial counsel for Ed O’Bannon and other former college athletes in a case challenging the NCAA’s amateurism rules. Judge Claudia Wilken issued a historic ruling for the plaintiffs last August.
Before the O’Bannon trial, the judge said she wasn’t much of a sports fan. How did that affect your case?
We used a lot of illustrations and images. In an antitrust case involving a commodity, you would show the judge or jury the commodity, but that does not take long. We spent much more time showing Judge Wilken the business of college sports: photos of stadiums, players’ special dorms and athletic facilities, and, most of all, players surrounded by objects showing commercial sponsorship. We also showed her tweets of colleges promoting the sale of player cards and jerseys, YouTube videos of NCAA speeches, and showed her player photos on sale at the websites of college bookstores.
What testimony did you elicit from witnesses?
Perhaps the most important testimony came from NCAA witnesses who conceded on cross examination that paying players as much as $10,000 a year would not hurt the popularity of the sport or interfere unduly with the principle of amateurism. This was reflected in Judge Wilken’s final order. She struck down NCAA rules prohibiting the sharing of revenues from the use of the names, images, and likenesses of college football and basketball players, and allowed colleges to put up to $5,000 per player per year in a trust fund for athletes, along with any additional money for the full cost of attending school. (Remarkably college athletic scholarships fall short by as much as $5,000 a year in covering the actual costs of education).
What do you think the future of college athletics will look like?
College football and basketball already look like the future: those sports look, feel, and act like commercial sports, except that the athletes also attend a college or university. I asked one of the NCAA’s expert witnesses about this at trial, and I quoted Alabama coach Bear Bryant, who said he used to go along with the idea that football players on scholarship were student athletes, but he doesn’t anymore because really they are athletes first and students second. The NCAA’s expert told me that the University of Alabama was “the strongest possible school in terms of pro football” and their fans “follow their team win or lose, paying them or not.”
O’Bannon wasn’t the only high-profile trial you took part in last year.
Karen Dunn and I defended a client in the portable music industry in a billion-dollar class action antitrust litigation in December, with a defense verdict.
What are the other big antitrust trials you have been involved in?
In 2003, we won a $49.5 million verdict (that was then trebled) in antitrust litigation involving one of the vitamins in the international vitamins cartel. Next was a $34.5 million price-fixing judgment involving scrap metal companies, followed by the trial against Chinese Vitamin C makers in 2013.
In the Vitamin C case, what made you pursue the first private antitrust case against an international cartel?
When our Firm started in 1997, Jonathan Schiller uncovered the first worldwide vitamins cartel, and then prosecuted the civil action. So when a client pointed out that Vitamin C was controlled by four companies in China and prices were rising, I started investigating that situation and found the evidence of price fixing by those companies. Given the history of our Firm, of course we were going to prosecute a price-fixing case against a new vitamins cartel, wherever it was from.
The companies said they were compelled by their government to collude. How did you convince the jury that they had acted on their own?
That was an uphill struggle, because people assume that the government tells businesses in China what to do, and our jury research indicated this would be an appealing argument for the defense. Our job was to show the jury the documents and teach them that their assumptions about this were wrong. We therefore focused our case on showing the evidence that the Chinese government did not actually compel the defendants’ decisions to fix the price and limit the supply of Vitamin C—including evidence of voluntary agreements and voting at meetings. Many documents were shown to the jury with statements such as we have “communicated” with the other companies “hoping that they will maintain a similar pricing policy for our common interest.”
What are you working on now?
I am scheduled for trial for a plaintiff this year, again with Karen Dunn, in litigation for a client in Silicon Valley.
You’ve been at Boies, Schiller & Flexner since the beginning. What made you decide to join a new firm?
I was not going to miss the opportunity to work in a start-up litigation firm with Jonathan Schiller and David Boies. I believed that the Firm would attract interesting clients and challenging cases, but it has done so at levels I do not think anyone anticipated.
Litigation Daily named Mr. Isaacson and his co-counsel Litigators of the Week after the O'Bannon decision. Mr. Isaacson was assisted at the trial by associate Martha Goodman.