O'Bannon Certification Transcript

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE CLAUDIA WILKEN, JUDGE ) ) ) ) ) ____________________________) IN RE NCAA
STUDENT-ATHLETE NAME & LIKENESS LICENSING LITIGATION
CERTIFIED COPY
NO. C 09-01967 CW PAGES 1 - 68 OAKLAND, CALIFORNIA THURSDAY, JUNE 20, 2013
TRANSCRIPT OF PROCEEDINGS APPEARANCES: FOR PLAINTIFFS: BY: HAUSFELD LLP 1700 K STREET NW, SUITE 650 WASHINGTON, DC 20006 MICHAEL D. HAUSFELD, SATHYA GOSSELIN, ATTORNEYS AT LAW HAUSFELD LLP 44 MONTGOMERY STREET, SUITE 3400 SAN FRANCISCO, CALIFORNIA 94104 MICHAEL P. LEHMANN, BRUCE J. WECKER, ATTORNEYS AT LAW HEINS MILLS & OLSON 310 CLIFTON AVENUE MINNEAPOLIS, MINNESOTA 55403 RENAE D. STEINER, ATTORNEY AT LAW HAGENS BERMAN SOBOL SHAPIRO LLP 11 WEST JEFFERSON STREET, SUITE 1000 PHOENIX, ARIZONA 85003 LEONARD W. ARAGON, ATTORNEY AT LAW
BY:
BY: FOR RIGHT OF PUBLICITY PLAINTIFFS: BY:
(APPEARANCES CONTINUED NEXT PAGE) REPORTED BY: RAYNEE H. MERCADO, CSR NO. 8258
PROCEEDINGS REPORTED BY ELECTRONIC/MECHANICAL STENOGRAPHY; TRANSCRIPT PRODUCED BY COMPUTER-AIDED TRANSCRIPTION.
RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR (510) 451-7530
A P P E A R A N C E S (CONT'D.)
FOR DEFENDANT NCAA: BY:
SCHIFF HARDIN LLP 350 SOUTH MAIN STREET, SUITE 210 ANN ARBOR, MICHIGAN 48104 GREGORY L. CURTNER, JESSICA SPROVTSOFF, ROBERT WIERENGA,ATTORNEYS AT LAW MILLER CANFIELD PADDOCK & STONE PLC 101 N. MAIN STREET, 7TH FLOOR ANN ARBOR, MICHIGAN 48104 SUZANNE L. WAHL, ATTORNEY AT LAW KEKER & VAN NEST 710 SANSOME STREET SAN FRANCISCO, CALIFORNIA 94111-1704 ANDREW LEVINE, R. JAMES SLAUGHTER, ROBERT A. VAN NEST, ATTORNEYS AT LAW KILPATRICK TOWNSEND & STOCKTON LLP 607 14TH STREET NW, SUITE 900 WASHINGTON, DC 20005 PETER M. BOYLE, R. CHARLES HENN, JR., ATTORNEYS AT LAW
BY: FOR DEFENDANT ELECTRONIC ARTS: BY:
FOR DEFENDANT CLC: BY:
--O0O--
3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ALREADY? THE CLERK: THE COURT: THEY HAVE. OKAY. LET'S DISPENSE WITH THAT. THE CLERK: ELECTRONIC ARTS. PLEASE STEP FORWARD AND STATE YOUR APPEARANCES FOR THE RECORD, PLEASE. (PAUSE IN THE PROCEEDINGS.) THE CLERK: PLEASE STEP FORWARD AND STATE YOUR THURSDAY, JUNE 20, 2013 P R O C E E D I N G S WE'RE CALLING C09-1967, KELLER VERSUS 2:18 P.M.
APPEARANCES FOR THE RECORD. THE COURT: HAVE THEY ALL GIVEN YOU THEIR APPEARANCES
LET ME HAVE, IF I COULD, ONE PERSON FOR THE PLAINTIFF UP AT THE PODIUM AND ONE PERSON FOR NCAA AT THE PODIUM WITH ONE PERSON EACH FOR EA AND CLC CLOSE TO THE PODIUM THAT COULD LEAP UP IF NECESSARY BUT MAY NOT BE THE FIRST PERSON TO SPEAK. FIRST OF ALL, I'D LIKE YOU -- ALL OF YOU NOT TO REFER IN ANY WAY TO ANY SEALED DOCUMENT OR SEALED INFORMATION. IF YOU
FEEL THE NEED TO DO SO, TELL ME FIRST, AND I'LL TRY TO PULL IT UP ON THE SCREEN OR DO SOMETHING. I DON'T THINK YOU REALLY
NEED TO, BUT YOU HAD MANY PAGES OF ARGUMENTS OVER HOW YOU WOULD HANDLE SEALED DOCUMENTS IN THE PAPERS. SO JUST TELL ME
IF YOU FEEL A STRONG NEED TO SAY SOMETHING THAT'S UNDER SEAL. SO FIRST, I WANT TO TALK ABOUT WHETHER THE COMPLAINT NEEDS
4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NCAA. TO BE AMENDED OR SOME OTHER REMEDY FOUND. TALK ABOUT -- I DON'T KNOW WHAT TO CALL IT. THEN I'D LIKE TO IF I CALL IT THE
"HORIZONTAL CONSPIRACY" VERSUS THE "VERTICAL CONSPIRACY," SOMEONE WILL GET MAD, SO MAYBE I'LL CALLED IT THE "BROADCAST CONSPIRACY" VERSUS THE "VIDEO GAME CONSPIRACY." TO HAVE A SHORTHAND TO REFER TO IT. (OFF-THE-RECORD DISCUSSION.) MR. CURTNER: I'M GREG CURTNER. I REPRESENT THE I JUST WANT
WE CALL IT "OLD" AND "NEW." THE COURT: MR. CURTNER: THE COURT: "OLD" AND "NEW." YES. THAT DOESN'T HELP ME. SO I WANT TO TALK
LET'S DO "BROADCAST" AND "VIDEO GAME."
ABOUT BROADCAST FIRST, AND THEN WE'LL TALK ABOUT VIDEO GAME. AND THEN I WANT TO TALK ABOUT INJUNCTIVE RELIEF, AND THEN WE'LL TALK ABOUT CASE MANAGEMENT ISSUES. SO STARTING WITH THE SORT OF DISPUTE ABOUT WHETHER THE PLAINTIFFS CHANGED THEIR THEORY AND WHETHER ANYTHING NEEDS TO BE DONE ABOUT THAT, THE ANSWER IS YES, PLAINTIFFS DID CHANGE THEIR THEORY, TO SOME DEGREE AT LEAST. BUT I'M NOT TOO
TERRIBLY INCLINED TO -- WELL, SO WHAT WE COULD DO ABOUT THAT WOULD BE TO GIVE THE PLAINTIFFS AN OPPORTUNITY TO FILE AN AMENDED COMPLAINT. PURPOSE. YOU ALL NOW KNOW WHAT IT IS THEY'RE CLAIMING, SO I DON'T
I'M NOT SURE THAT WOULD REALLY SERVE ANY
5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KNOW THAT IT WOULD HELP YOU TO HAVE AN AMENDED COMPLAINT. I
WOULDN'T REALLY MIND HAVING ONE, EXCEPT THAT THEN WE MIGHT BE IN FOR ANOTHER WHOLE ROUND OF MOTIONS TO DISMISS, WHICH I DON'T THINK WOULD BE A USEFUL EXERCISE. YOU WILL HAVE AN OPPORTUNITY TO MOVE ON THE MERITS OF WHATEVER CLAIMS THEY'RE MAKING NOW WHEN WE HAVE MOTIONS FOR SUMMARY JUDGMENT, WHICH I ASSUME WE HAVE SCHEDULED AT SOME POINT. SO WE COULD DO IT THAT WAY.
PERHAPS THERE'S SOME DISCOVERY THAT WASN'T DONE BECAUSE THE THEORY WAS CHANGED, BUT I DON'T REALLY THINK SO. BUT IF
THERE WAS ANY, I SUPPOSE YOU COULD GO TO JUDGE COUSINS AND EXPLAIN WHAT IT WAS AND WHY YOU NEED TO REOPEN IT. WE DON'T REALLY NEED AN AMENDED COMPLAINT TO DO THAT. I
DON'T THINK WE NEED A NEW ROUND OF CLASS CERTIFICATION MOTION BECAUSE BY THE TIME THIS WAS BRIEFED, YOU ALL KNEW WHAT IT WAS THEY WERE CLAIMING, AND IT WAS MORE THAN ADEQUATELY BRIEFED ON ALL THE THEORIES, SO I -- I DON'T REALLY SEE ANY NEED TO HAVE THAT REBRIEFED. SO WE CAN TALK ABOUT ALL OF THAT, BUT THOSE ARE MY THOUGHTS. I DON'T EXACTLY KNOW -- WELL, I GUESS ONE PROBLEM THAT RELATES TO THAT IS THE FACT THAT IN ONE OF THE EARLIER MOTIONS TO DISMISS, I SAID SOMETHING ABOUT A "VERTICAL CONSPIRACY" AND NOT A "HORIZONTAL CONSPIRACY," SO PERHAPS THERE'S SOME ARGUMENT THAT COULD BE MADE THAT THE PLAINTIFFS NEED TO AMEND
6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COMPLAINT TO ALLEGE MORE SUCCESSFULLY THE HORIZONTAL CONSPIRACY OR MOVE FOR RECONSIDERATION TO BRING THE HORIZONTAL CONSPIRACY BACK IN OR SOMETHING. AND THEN WE HAVE THE QUESTION OF WHAT WE WOULD DO IF I WERE TO DENY CLASS CERTIFICATION ON ANY OF THE POINTS THAT PLAINTIFF WANTS CERTIFIED AND IF PLAINTIFF WOULD THEN WANT TO -- I GUESS IT'S HARD TO KNOW IN ADVANCE OF DOING IT. BUT
WE WOULD HAVE A PROBLEM WITH WHETHER YOU WOULD WANT TO, FOR EXAMPLE, TRY TO FIND NEW PLAINTIFFS AND AMEND THE COMPLAINT OR WHETHER YOU WOULD GO FORWARD WITH WHATEVER YOU COULD GET, BUT I GUESS YOU CAN'T REALLY ANSWER THAT QUESTION UNTIL YOU SEE WHAT HAPPENS. BUT IT'S -- IT COULD BE A PROBLEM.
SO LET ME JUST ASK IF ANY OF YOU HAVE ANY COMMENTS ON ANY OF THAT, STARTING WITH THE PLAINTIFF. MR. HAUSFELD: NO.
(OFF-THE-RECORD DISCUSSION.) MR. HAUSFELD: CLASS PLAINTIFFS. MR. CURTNER: YES, YOUR HONOR. MAY I BE HEARD ON MICHAEL HAUSFELD FOR THE ANTITRUST
THOSE POINTS ON THE AMENDMENT ISSUE AND ON THE NEW THEORY ISSUE? THE COURT: MR. CURTNER: OKAY. I HAVE MAYBE FIVE POINTS, AND I'LL TRY
TO MAKE THEM VERY BRIEFLY 'CAUSE YOU'VE OBVIOUSLY THOUGHT ABOUT ALL OF THIS.
7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HONOR. IN OUR VIEW AND AS YOU RULED IN THE PLASCENCIA CASE AND AS A NUMBER OF OTHER COURTS HAVE RULED, IT WOULD BE IMPROPER TO CERTIFY AN UNPLED CLASS, AND THAT'S WHERE WE ARE. THE COURT: THEORIES AREN'T PLED. MR. CURTNER: THE COURT: MR. CURTNER: THE CLASSES CHANGED AS WELL THE THEORY. THEY'RE NARROWED; THEY'RE NOT EXPANDED. NO, THEY'RE CONSIDERABLY EXPANDED, YOUR WELL, THE CLASSES ARE PLED. SOME SOLVE
WE'VE GONE FROM FORMER STUDENT ATHLETES TO CURRENT
STUDENT ATHLETES. THE COURT: MR. CURTNER: THE COURT: ATHLETES." MR. CURTNER: WITH REGARD TO VIDEO GAMES. BUT NOT THE COMPLAINT SAID "CURRENT." WE'VE GONE FROM -THE PROPOSED CLASS SAID "CURRENT STUDENT
WITH REGARD -- AND WE'VE GONE FROM A DOWNSTREAM MERCHANDISE MARKET TO A LIVE BROADCAST MARKET, WHICH IS A CONSIDERABLY DIFFERENT CASE. THIS POINT. IN THE SECOND CONSOLIDATED AMENDMENT -- AMENDED COMPLAINT, THERE ARE FOUR PARAGRAPHS THAT MENTION LIVE BROADCAST. OUT OF 600 OR SO. ONLY 4 THE -- AS TO WHETHER -- WELL, LET ME MAKE
IT'S 332, 333, 334, 335, AND ALL THEY SAY
IS THAT THE NCAA HAS SOME CONTRACTS THAT GENERATE A LOT OF REVENUE AND THAT -THE COURT: OKAY. I AGREE IT'S NOT VERY MUCH, BUT
8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DISMISS. MR. CURTNER: I -- THE LEGALITY, THE VIABILITY OF THE NOW YOU KNOW. SO WHAT WILL BE SERVED BY FORCING THEM TO FILE
ANOTHER 500 PAGES AND PERHAPS -MR. CURTNER: THE COURT: WELL, YOUR HONOR --- ANOTHER ROUND?
YOU HAVE TO WAIT TILL I FINISH. MR. CURTNER: THE COURT: I'M SORRY. -- HAVE ANOTHER ROUND OF MOTIONS TO
CURRENT THEORY THAT CURRENT STUDENT ATHLETES APPEARING IN LIVE BROADCAST ON T.V. CAN STATE A -- AN ANTITRUST CAUSE OF ACTION AND THAT THEY SHOULD BE PAID FOR THAT, FOR THEIR NAME, IMAGE, LIKENESS IN THAT REGARD IS A COMPLETELY DIFFERENT LEGAL ISSUE THAN YOU HAVE RULED ON IN THE PAST. IT IS A LEGAL ISSUE THAT IS FORECLOSED, IN OUR VIEW, BY THE SUPREME COURT DECISION IN BOARD OF REGENTS, BY THE -THE COURT: COULD YOU MAKE IT MORE OF A SUMMARY? YOU
SAID YOU HAD FIVE POINTS. A SENTENCE --
COULD YOU JUST MAKE THEM IN, LIKE,
(SIMULTANEOUS COLLOQUY.) MR. CURTNER: FURTHERMORE, THEY REPRESENTED TO YOU
AND TO JUDGE COUSINS AND TO SEVERAL OTHER FEDERAL JUDGES AROUND THE COUNTRY THAT THEY WERE NOT PURSUING THIS THEORY. THE COURT: I KNOW THEY DID, BUT ALL I'M TRYING TO I -- ONE WAY OR ANOTHER, I'M
TALK ABOUT IS PRACTICALITIES.
9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KNOW. THE COURT: MR. CURTNER: THE COURT: OKAY. SO -QUESTION. NOT GOING TO DENY CLASS CERTIFICATION OR STRIKE IT BECAUSE OF THIS NEW THEORY. MY ONLY -- AND I'M NOT GOING TO DISMISS THE
CASE OR ANYTHING ELSE. MY ONLY QUESTION IS WHETHER IT'S USEFUL OR WORTHWHILE TO SPEND THE EFFORT TO FORCING THEM TO FILE AN AMENDED COMPLAINT AND HAVING A ROUND -- AND/OR HAVING A SEPARATE ROUND OF MOTIONS TO DISMISS OR JUST PROCEEDING ON THE COMPLAINT AS WE HAVE IT NOW, ASSUMING THAT YOU NOW KNOW WHAT THEY ARE CLAIMING, HAVING ALL OF YOUR DISPOSITIVE MOTIONS MADE TOGETHER WITH YOUR MOTION FOR SUMMARY JUDGMENT. MR. CURTNER: YES, YOUR HONOR. THAT'S THE ONLY ISSUE. I UNDERSTAND THE
WE BELIEVE THAT A MOTION TO DISMISS IS APPROPRIATE. WE DO
WE -- AND THAT THERE IS DISPOSITIVE LAW ON THE POINT. NOT KNOW EXACTLY WHAT THEY ARE CLAIMING. AS TO WHAT THEY'RE CLAIMING.
WE HAVE NOW A HINT
THEY STILL HAVE NOT SPECIFIED
WHICH BYLAWS ARE AT ISSUE IN THIS CASE UNDER THEIR NEW THEORY. WE HAD A -- WE KNEW WHAT BYLAWS WERE AT ISSUE UNDER THE OLD CASE. THE NEW CASE INVOLVE (SIC) A WHOLE BUNCH OF THEY'RE NOT -WHAT'S YOUR NEXT POINT? THE POINT IS THEY DON'T KNOW; WE DON'T
DIFFERENT NCAA RULES. THE COURT: MR. CURTNER:
SO WE'RE ENTITLED TO NOTICE. HOW MANY OF YOUR FIVE HAVE YOU GOT TO SO
10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 FINISH. PROCESS. THE COURT: TALK ABOUT. I'M JUST TRYING TO -- WE HAVE A LOT TO FAR? MR. CURTNER: YOUR HONOR, THIS IS A DENIAL OF DUE
I DON'T WANT TO TALK ABOUT THE MINOR PROCEDURAL
STUFF FOREVER AND NOT HAVE TIME TO TALK ABOUT THE SUBSTANCE, SO I'M JUST TRYING TO FIND OUT YOUR ACTUAL PRACTICAL PROBLEMS WITH JUST PROCEEDING WITH THE COMPLAINT WE'VE GOT AND THE -AND THE CASE DISPOSITIVE MOTION THAT WE'VE GOT VERSUS ANOTHER PROCEDURAL ROUND. THAT'S ALL I'M TRYING TO GET AT, AND IF YOU IF YOU COULD --
COULD -- YOU SAID YOU HAD FIVE POINTS.
(SIMULTANEOUS COLLOQUY.) THE COURT: AND YOU REALLY NEED TO WAIT TILL I
IT MAKES IT VERY HARD FOR HER. MR. CURTNER: THE COURT: SORRY. IF YOU COULD JUST GIVE THEM TO ME IN
SUMMARY FASHION, AND IF WE NEED TO TALK ABOUT THEM MORE, WE WILL. MR. CURTNER: NOTICE, OPPORTUNITY TO CHALLENGE,
DISCOVERY, SPECIFICITY, ADDS UP TO A DENIAL OF DUE PROCESS. THE COURT: MR. CURTNER: WHAT ABOUT SPECIFICITY? AND FURTHERMORE, THERE ARE
MISREPRESENTATIONS TO THIS AND OTHER COURTS. THE COURT: OKAY.
WHAT DO YOU WANT TO SAY ABOUT THE -- I CAN'T REMEMBER

11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EXACTLY WHAT IT SAID, BUT THE LESS-THAN-COMPLIMENTARY REFERENCE TO A HORIZONTAL CONSPIRACY IN THE PRIOR MOTION TO DISMISS ORDER? YOU FEEL LIKE YOU NEED TO MOVE TO RECONSIDER THAT? FEEL LIKE YOU COULD FIX IT UP WITH A AMENDED COMPLAINT? DO YOU WANT TO DO ABOUT THAT? MR. HAUSFELD: WE CAN AS -- YOUR HONOR, AS A MATTER YOU WHAT
OF PRACTICALITY, ADDRESS IT IN AN AMENDED COMPLAINT WHERE WE COULD MAKE IT CLEARER THAT THE RESTRAINTS DERIVE FROM A COMMON SET OF RULES THAT HORIZONTALLY WERE AGREED TO AND BOUND THE MEMBER CONFERENCES AND INSTITUTIONS. BUT AS YOUR HONOR HAS SAID, THAT HAS BEEN CLEARLY PLED AT THIS POINT. THERE IS NO AMBIGUITY AS TO WHAT IT IS THAT IS
ALLEGED, AND THEY CAN BE ADDRESSED IN A SUMMARY JUDGMENT ALONG WITH WHATEVER OTHER MOTIONS THAT MAY BE CONSOLIDATED AT THAT TIME. THE COURT: I MEAN, I COULD HAVE YOU FILE AN AMENDED
COMPLAINT, BUT I HATE TO HAVE A LOT MORE -- I HATE TO REOPEN THE WHOLE THING TO REARGUE THINGS THAT HAVE ALREADY BEEN ARGUED. SO IF YOU COULD FILE AN AMENDED COMPLAINT THAT WOULD
HEW AS CLOSELY AS POSSIBLE TO THE COMPLAINT THAT YOU'VE GOT BUT ONLY ADD THE THINGS THAT DEFENDANTS SAY THAT THEY DIDN'T KNOW ABOUT, MAYBE THAT WOULD BE OKAY. DO YOU THINK YOU COULD DO THAT? MR. HAUSFELD: NO PROBLEM, YOUR HONOR.
12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: OKAY. WELL, MAYBE WE'LL DO THAT.
AND THEN I THINK WHAT I WOULD DO IN TERMS OF A MOTION TO DISMISS IT WOULD BE TO CONSOLIDATE THAT WITH THE MOTION FOR SUMMARY JUDGMENT ON IT AS WELL AS THE MOTION FOR JUDGMENT ON THE PLEADINGS. AND YOU WOULD HAVE TO DO SOMETHING ABOUT THE HORIZONTAL CONSPIRACY. I MEAN, THE HORIZONTAL CONSPIRACY THAT'S NOW
ARGUED IS NOT THE SAME HORIZONTAL CONSPIRACY THAT I DIDN'T FIND IN THE PRIOR COMPLAINT. AS YOU POINT OUT, IT IS A
DIFFERENT HORIZONTAL CONSPIRACY, SO THIS ONE MIGHT WELL BE APPROPRIATE. AND I DON'T THINK A MOTION TO RECONSIDER IS
REALLY THE RIGHT THING BECAUSE IT REALLY ISN'T THE SAME ALLEGATIONS ANYMORE. OKAY. SO ON THE -- WHAT DEFENDANTS WOULD CALL THE NEW
THEORY ABOUT BROADCAST GAMES, I GUESS THIS IS A -- AN ALLEGED PRICE FIXING AND GROUP BOYCOTT THEORY. MR. HAUSFELD: THE COURT: YES, YOUR HONOR. YES?
BASED ON BYLAWS, BASED ON THE RELEASE
FORM, AND BASED ON A SORT OF AGREEMENT AMONGST THE DEFENDANTS THAT ISN'T EXPRESSED IN THE RELEASE FORM OR THE BYLAWS; IS THAT RIGHT? MR. HAUSFELD: THE COURT: YES, YOUR HONOR.
AND I GUESS -- WHAT WOULD YOU SAY ABOUT
THE NEED FOR ANY OF YOUR CLASS MEMBERS TO HAVE SIGNED AN AGREEMENT SIMILAR TO THAT -- WHAT DO YOU CALL IT -- 8.3 OR
13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 WHATEVER IT IS? I'D NOTE THAT YOUR CLASS DEFINITION DOESN'T INCLUDE PEOPLE WHO SIGNED ONE. YOU DON'T SEE THAT AS A -- AS A REQUIREMENT
OF BEING IN ONE OF THE CLASSES, I TAKE IT? MR. HAUSFELD: NO, YOUR HONOR, BECAUSE IT'S FAIRLY
CLEAR FROM THE EVIDENCE THAT HAS BEEN GATHERED TO DATE THAT IT IS A COMBINATION IN THEIR TOTALITY OF THE BYLAWS AND OTHER LEGISLATION, RULES, REGULATIONS, AND INTERPRETATIONS WHICH CLEARLY REFLECT THE POLICY WHICH SEEMS TO BE UNAMBIGUOUS THAT ATHLETES WHETHER THEY BE PROSPECTIVE, CURRENT, OR FORMER WILL NOT RECEIVE ANY SHARE OF REVENUE FROM THE CONVEYANCE OF THEIR NAME, IMAGE, AND LIKENESS. THE COURT: ONE OF THE BIG QUESTIONS OR CHALLENGES
THAT THE DEFENDANTS MENTION A NUMBER OF TIMES THAT I'M NOT SURE YOU REALLY RESPOND TO DIRECTLY IS THEY SAY, WELL, HOW DO THE BYLAWS AND THE RELEASE CAUSE THE COLLEGES NOT TO HAVE TO PAY THE ATHLETES FOR THEIR APPEARANCES? DO YOU HAVE AN ANSWER FOR THAT? MR. HAUSFELD: YES, YOUR HONOR. IF -- IF I MAY,
WE'VE PREPARED A SET OF -- SHORT SET OF SLIDES THAT MIGHT BE INSTRUCTIVE. THE COURT: I'VE SPENT SO MUCH TIME READING THE STUFF
YOU'VE ALREADY GIVEN ME, I DON'T WANT TO START READING MORE STUFF. CAN'T YOU JUST TELL ME? MR. HAUSFELD: YEAH, IT'S -- IN OUR JUDGMENT, THERE
14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IS A CORE TO THIS CASE, AND THE CORE TO THE CASE IS A SINGLE NCAA CONSTITUTIONAL PRINCIPLE WITH A SERIES OF RULES, BYLAWS, AND REGULATIONS, WHICH ARE DERIVED FROM THAT PRINCIPLE, WHICH ARE AGREED TO AND BINDING ON ALL MEMBER CONFERENCES AND INSTITUTIONS, AND TO WHICH ALL LICENSEES MUST ADHERE AND WHICH CONTROL THE CONDUCT AND THE RIGHTS OF ALL PERSONS DEFINED AS STUDENT ATHLETES, WHETHER PROSPECTIVE, CURRENT, OR FORMER, AND AS THE PRESIDENT OF THE ASSOCIATION SAID, WITH NO EXCEPTION. THAT'S THE FRAMEWORK. THE COURT: WELL, OKAY. THAT'S A LITTLE VAGUE. I'M
FAMILIAR WITH THE BYLAWS WHICH I HAVE -- THE ONES THAT YOU'VE COMPLAINED ABOUT -- AND I'M FAMILIAR WITH THE FORM 08-3A, SO I UNDERSTAND THOSE THINGS. AND I GUESS MY QUESTION IS, HOW DO
THOSE THINGS CAUSE THE COLLEGES EITHER NOT TO HAVE TO OR NOT TO WANT TO OR NOT TO BE ABLE TO PAY STUDENT ATHLETES FOR THEIR APPEARANCES IN BROADCAST. MR. HAUSFELD: THE COURT: BY REASON OF --
AND IF THEY DON'T BY THEMSELVES AND
SOMETHING ELSE ADDED TO IT DOES, YOU CAN SAY THAT, BUT -MR. HAUSFELD: YES, YOUR HONOR. BY REASON OF BYLAW
12 AND ALL ITS SUB-BYLAWS AND OTHER LEGISLATION -THE COURT: "OTHER LEGISLATION." THIS IS WHAT THE NCAA EXPRESSES ON ITS
MR. HAUSFELD:
WEBSITE OTHER RULES OR REGULATIONS AND INTERPRETATIONS THAT GO ALONG WITH THOSE BYLAWS WHICH THEY EXPRESS ARE HIGHLY NUANCED
15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE NCAA. THE COURT: OKAY. WELL, DON'T TELL ME ANYTHING OF IN LANGUAGE AND IMPLEMENTATION IN ORDER TO PROVIDE THE FLEXIBILITY THAT LEADS TO A SINGLE RESULT. AND THAT SINGLE
RESULT IS STATED, YOU KNOW, BY THE BCS CONFERENCE. THE COURT: BY THE WHAT? BCS CONFERENCE, BOWL CHAMPIONSHIP
MR. HAUSFELD:
SERIES -- THAT COMPENSATION IN ANY FORM IN ANY TYPE TO ANY STUDENT IS FORBIDDEN BY NCAA RULES RELATING TO AMATEURISM. THAT IS THE GENERAL PENUMBRA UNDER -- UNDER WHICH THE SCHOOLS, THE CONFERENCES, AND THE LICENSEES ALL ADHERE TO THIS PROHIBITION. THERE WAS ONE REMARK, YOUR HONOR, THAT WE QUOTED THAT I THINK VIVIDLY ILLUSTRATE THE -- THE RESTRAINT WHERE THE -THE COURT: OKAY. THIS -- THIS WAS THE THING THAT I
FOUND MOST UNHELPFUL ABOUT YOUR BRIEFS IS QUOTING REMARKS THAT YOU DON'T LIKE FROM VARIOUS PEOPLE. THAT JUST DOESN'T HELP ME
UNDERSTAND WHAT THE LAW IS OR EVEN WHAT THE FACTS ARE. THEY'RE JUST OPINIONS OF VARIOUS PEOPLE, MAYBE ADMISSIONS OF VARIOUS PEOPLE, BUT THEY'RE NOT -MR. HAUSFELD: THIS WAS -- THIS WAS AN ADMISSION BY
THOSE THINGS THAT WERE IN THE BRIEF BECAUSE THAT JUST WASN'T HELPFUL. I'M TRYING TO FIND OUT WHAT THE PARAMETERS OF THE AND I'VE GOT THE -- THE BYLAW 12, AND
ALLEGED AGREEMENT ARE.
I'VE GOT THE FORM, AND IF YOU'RE GOING TO TELL ME THERE WAS
16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MISSED. ALSO SORT OF VERBAL AGREEMENTS AMONG EVERYONE TO SAY SOMETHING, YOU COULD TELL ME THAT. MR. HAUSFELD: THE COURT: YES.
IF THERE'S SOME OTHER BYLAW THAT YOU I GUESS I MUST IF
NOW YOU'RE TALKING ABOUT LEGISLATION.
HAVE MISSED THAT BECAUSE I DON'T REMEMBER ANY LEGISLATION.
YOU'RE REALLY RELYING ON LEGISLATION, I GUESS YOU BETTER TELL ME WHAT IT IS. MR. HAUSFELD: THAT'S ONE OF THE SLIPPERY SLOPES, FOR EXAMPLE, IF DEFENDANTS ASSERT
YOUR HONOR, THAT WE'RE IN.
AS AN AFFIRMATIVE DEFENSE THAT THE BYLAWS PROHIBIT THESE PAYMENTS BUT THEY NEVER STATE WHICH BYLAWS DO THAT -- ONE OF THE DEFENDANTS' DECLARANTS STATE THAT THE BYLAWS THAT -- THAT PAYMENT OR COMPENSATION TO ATHLETES FOR N.I.L. RIGHTS, WHETHER THEY BE BROADCAST, REBROADCAST, OR VIDEO GAMES, WOULD PROBABLY VIOLATE ONE OR MORE OF THE NCA (SIC) BYLAWS WITHOUT SPECIFYING WHICH ONE. IN -- AT ONE POINT, THE NCA LEADERSHIP UNANIMOUSLY AGREED IT WOULD BE HERESY TO PERMIT ATHLETES TO HAVE EQUAL ACCESS TO THE MARKETPLACE, FOR EXAMPLE, LIKE COACHES. THAT IS WHAT -THAT
WHAT HAS COME TOGETHER ON THE HORIZONTAL ASPECTS. BECOMES THE BASIC RULE AND PROHIBITION TO WHICH ALL
CONFERENCES AND -- AND MEMBER INSTITUTIONS AND LICENSEES ADHERE. THE COURT: HMM.
17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 OKAY. ANOTHER ISSUE THAT I THINK YOU DIDN'T ANSWER IN THE
BRIEFS OR YOU DID BUT IT DIDN'T SEEM TO ADDRESS THE ACTUAL CLAIM THAT WAS BEING MADE WAS THE NOTION THAT THE STUDENT ATHLETES COULD NOT SELL TO THEIR COLLEGES THEIR RIGHT TO BE PAID FOR BEING IN A BROADCAST BECAUSE THEY DON'T HAVE SUCH A RIGHT BECAUSE STATE LAW SAYS THEY DON'T. A CALIFORNIA LAW, WAS IT? MR. CURTNER: STATES HAVE A STATUTE. THE COURT: SEVENTEEN DIFFERENT STATES HAD SOME SORT THERE IS A CALIFORNIA -- AND OTHER SPECIFICALLY I THINK
OF STATUTES THAT I GUESS, AS A SORT OF PUBLIC INTEREST OR -OR NEWSWORTHY EVENT OR SOMETHING, SAY THAT YOU -- IF YOU'RE ON A NEWSCAST OR YOU'RE A PLAYER IN A GAME, YOU CAN'T STOP IT FROM BEING BROADCAST JUST BECAUSE YOU'RE IN IT. SO DEFENDANTS
ARGUE FROM THAT, THEN, THAT THE ATHLETES COULDN'T SELL THAT BECAUSE THEY DIDN'T HAVE IT. MR. CURTNER: THE LAW UNIVERSALLY. THE COURT: SO WHAT'S -- WHAT'S YOUR ANSWER TO THAT? THERE WOULD NEVER BE A SPORTS EVENT THERE IS -- THERE IS NO APPLICATION YOUR HONOR, THAT'S THE LAW -- THAT'S
MR. HAUSFELD: THAT WOULD BE BROADCAST.
OF THAT LAW THAT DISTINGUISHES BETWEEN PROFESSIONAL ATHLETES AND COLLEGE ATHLETES. THERE IS NO PROFESSIONAL ATHLETIC
COMPETITION THAT'S BROADCAST THAT DOES NOT CONTAIN A PROVISION FOR THE CONVEYANCE OF THE NAME, IMAGE, AND LICENSING RIGHTS -RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR (510) 451-7530
18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DO THAT. LIKENESS RIGHTS OF THOSE ATHLETES. THERE IS ABSOLUTELY NO JUSTIFICATION -THE COURT: PERHAPS IN AN ABUNDANCE OF CAUTION, THEY BUT WHAT ABOUT THOSE LAWS? THOSE LAWS APPLY, TO THE -- TO THE
I DON'T KNOW. MR. HAUSFELD:
EXTENT THAT THEY'RE IN ANY WAY EFFECTED, WITHIN THE CONFINEMENTS OF INTRASTATE COMMERCE, NOT INTERSTATE. AND MOST
OF THESE GAMES, IF NOT ALL OF THESE GAMES, ARE INTERSTATE. IT WOULD BE ANOMALOUS IF A CALIFORNIA SCHOOL COULD NOT -COULD NOT ENTER A BROADCAST LICENSE FOR PRODUCTION OF A BROADCAST OF A NATIONAL GAME BECAUSE THERE WAS A CALIFORNIA LAW WHICH PROHIBITED THAT CALIFORNIA TEAM FROM PLAYING A SCHOOL WHERE NO SUCH LAW EXISTED. THE -- THE REACH OF THOSE LAWS, FOR WHAT -- FOR WHATEVER REASON, DESPITE THE FACT THAT THEY EXIST, HAS NEVER IN ANY WAY INTERFERED WITH THE ECONOMIC RIGHT OF THE ATHLETES TO CONVEY THEIR NAME, IMAGE, AND LIKENESS RIGHTS. THERE -- THERE IS NO
CASE, YOUR HONOR, THAT WAS CITED BY THE DEFENDANTS -THE COURT: BUT THE POINT IS THAT THEY CAN'T CONVEY
THAT RIGHT BECAUSE THEY DON'T HAVE THAT RIGHT BECAUSE STATE LAW SAYS THEY DON'T HAVE SUCH A RIGHT, THAT THEY CAN'T STOP A GAME FROM BEING BROADCAST BY SAYING, HEY, I'M IN THIS GAME. DON'T WANT YOU BROADCASTING, THAT THEY CAN'T DO THAT, AND SINCE THEY CAN'T DO IT, THEY CAN'T SELL THEIR AGREEMENT NOT TO DO IT TO THE COLLEGE.
19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THAT -- THAT'S, AS I UNDERSTAND IT, THE ARGUMENT. MR. HAUSFELD: THE COURT: RESPONSE TO THAT. MR. HAUSFELD: THAT WOULD BE IN CONFLICT, YOUR HONOR, IF YOU -- IF THAT STATUTE BUT THEN THAT WOULD BE --
I'M NOT REALLY UNDERSTANDING YOUR
WITH THE RIGHT OF PUBLICITY THEN.
REALLY PREVAILED, THEN THERE WOULD BE NO RIGHT OF PUBLICITY. IN THIS INSTANCE IN PARTICULAR, WHEN YOU'RE DEALING WITH A HORIZONTAL RESTRAINT THAT'S NATIONAL IN SCOPE THAT VIOLATES THE FEDERAL ANTITRUST LAWS, THE FEDERAL ANTITRUST LAWS WOULD PREEMPT ANY STATE LAW WHICH -- WHICH SOUGHT, YOU KNOW, TO, IN ESSENCE, IMMUNIZE CONDUCT THAT OTHERWISE WAS VIOLATIVE OF THE FEDERAL LAWS. AND THERE IS NO QUESTION THAT ABSENT ANY
PRO-COMPETITIVE JUSTIFICATION WHICH COULD BE ASSERTED WHICH WOULD BE A COMMON PREDOMINATING QUESTION, THAT THE RESTRAINTS IMPOSED THROUGH THESE BYLAWS AND INVESTIGATIONS AND POLICIES, THAT FORBID AND FORECLOSED THE ATHLETES FROM PARTICIPATING IN THE MARKETPLACE WOULD BE VIOLATIONS -- WOULD BE IN VIOLATION OF THE FEDERAL ANTITRUST LAWS. THE COURT: HMM.
SO AS I UNDERSTAND IT, YOUR EXPERT DR. NOLL HAS A THEORY THAT IF THE STUDENT ATHLETES HAD BEEN ABLE TO NEGOTIATE WITH THEIR COLLEGES FOR A SHARE OF THE LICENSING FEES FOR LICENSING BROADCAST OF GAMES, EITHER AT THE TIME IN TRUST OR LATER, THAT WHAT WOULD HAVE HAPPENED IS THE ATHLETES WOULD HAVE NEGOTIATED
20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 OKAY. A DEAL WHEREBY ANYONE WHO WAS ON THE ROSTER FOR A GIVEN SEASON WOULD BE INCLUDED AND EACH OF THEM WOULD GET AN EQUAL SHARE OF SOME PERCENTAGE OF THE LICENSE REVENUES. MR. HAUSFELD: THE COURT: YES.
HIS THEORY ESSENTIALLY. YES.
MR. HAUSFELD: THE COURT:
YES?
SO WHAT IF THAT -- I THINK HE ACTUALLY EVEN POSITS
THE POSSIBILITY THAT A DIFFERENT THEORY MIGHT BE THAT IN THAT SCENARIO, THE ATHLETES INSTEAD WOULD HAVE NEGOTIATED SOME DEAL WITH THEIR COLLEGES THAT WOULD HAVE SAID, FOR EXAMPLE, STAR QUARTERBACK GETS "X" PERCENT; BENCH WARMER GETS "Y" PERCENT, MIDDLE-OF-THE-ROAD ATHLETE GETS YET A DIFFERENT PERCENT, AND SO ON. IF THAT IS WHAT HAD HAPPENED OR WHAT WOULD HAVE HAPPENED, WOULD YOU HAVE A (SIC) ANTITRUST VIOLATION? MR. HAUSFELD: CLEAR, ALL GET NOTHING. ABSOLUTELY. BECAUSE RIGHT NOW, IT'S
AND WHAT THE NCA ESSENTIALLY SAYS
THROUGH THEIR EXPERTS, IT'S BETTER AND IRRESPECTIVE OF THE MARKET THAT EVERYBODY GET NOTHING AS OPPOSED TO FINDING OUT WHAT THE MARKET WOULD WARRANT WITH REGARD TO EACH INDIVIDUAL ATHLETE. BUT AS WELL, YOUR HONOR, WE'VE POINTED OUT THAT THE NCA ITSELF AT ONE TIME CONTEMPLATED FORMING A -- A FORMAL COLLEGE STUDENT ATHLETE PLAYERS' ASSOCIATION IN ORDER TO PROVIDE
21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THAT -- THAT PRECISE TYPE OF MECHANISM AND THAT THERE ARE PERSONS RIGHT NOW CONNECTED WITH THE NCAA AND THE VARIOUS CONFERENCES WHO ADVOCATE THAT IT WOULD BE UNFAIR TO TREAT DIFFERENT PLAYERS DIFFERENTLY AND PROVIDE DIFFERENT COMPENSATION. AS WELL AS THERE -- WHAT DR. NOLL ATTEMPTED TO DO WAS WORK UTILIZING GENERALLY ACCEPTED ECONOMIC PRINCIPLES AND FOCUS ON, AS THE COURT IN COMCAST SAID -- STATED, CORRELATE THE RESTRAINT TO THE CLAIM. THE RESTRAINT HERE, AS YOUR HONOR HAS SAID, IS THAT ATHLETES WERE PROHIBITED FROM ENTERING THE MARKET WITH REGARD TO THEIR N.I.L. RIGHTS AND/OR HAD THOSE RIGHTS REDUCED TO A VALUE OF ZERO. THE COURT: OKAY. I'M AFRAID I'M LOSING YOU HERE.
THAT'S --
SO LET ME MOVE ON TO MY QUESTIONS --
(SIMULTANEOUS COLLOQUY.) THE COURT: -- AFTER I FINISHED MY QUESTIONS, IF YOU
THINK I HAVEN'T ASKED YOU ABOUT SOMETHING OR LISTENED TO YOU ABOUT SOMETHING, YOU CAN TELL ME LATER. BUT I JUST WANTED TO ASK THAT ABOUT NOLL IN THE FIRST INSTANCE, WHETHER THAT THEORY OF HIS IS NECESSARY FOR YOU TO RECOVER AT ALL. AND YOU SAY NO.
BUT MY QUESTION IS IT SEEMS TO ME THAT THAT THEORY IS NECESSARY FOR YOU TO WIN CLASS CERTIFICATION TO COUNTER
22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ARGUMENTS OF LACK OF ASCERTAINABILITY AND CONFLICT BECAUSE THAT THEORY OF HIS ABOUT THE EQUAL PARTS SEEMS TO ME TO BE ONE THAT ANSWERS DEFENDANTS' CLAIMS AS TO THOSE TWO THINGS AND THAT IF THAT THEORY WERE NOT TO PREVAIL, THERE WOULD BE A BIG PROBLEM WITH BOTH OF THOSE TWO POINTS. DO YOU DISAGREE? MR. HAUSFELD: UNDER RULE OF REASON ANALYSIS, YOUR
HONOR, ALL THAT NEEDS TO BE ESTABLISHED, THERE IS A LESS RESTRICTIVE ALTERNATIVE, NOT A NO RESTRICTIVE ALTERNATIVE. THE COURT: ALL RIGHT. WELL, LET ME BE MORE CLEAR. ONE OF THEIR CLAIMS OF
LET'S GO TO CONFLICTS FIRST.
CONFLICTS IS THAT THERE'S A CONFLICT BECAUSE ATHLETES WITH MORE ABILITY HAVE A CONFLICT WITH ATHLETES OF LESSER ABILITY OR LESSER FAME OR WHATEVER THE CASE MAY BE BECAUSE THE ONES WITH MORE STAND TO NEGOTIATE MORE MONEY AND THE ONES WITH LESS STAND TO NEGOTIATE LESS. AND YOUR ANSWER, I TAKE IT, WOULD BE THAT, NO, DR. NOLL'S THEORY WOULD PREVAIL AND THUS EVERYONE WOULD GET THE SAME AMOUNT AND THERE'S NO CONFLICT AMONGST THE VARIOUS ATHLETES. MR. HAUSFELD: AND THAT WOULD BE A PREDOMINATING
COMMON QUESTION, BUT THAT WOULD BE CONSISTENT WITH THE RETENTION WITHIN THE NCAA OF THEIR COMPETITIVE FAIRNESS OR COMPETITIVE BALANCE CONCEPTS. AND THAT IS FOR EXAMPLE, ALL
STUDENT ATHLETES RECEIVE THE SAME SCHOLARSHIP DESPITE THE FACT THAT ONE ATHLETE MAY STILL HAVE BETTER SKILLS OR PERFORM
23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 YES. BETTER THAN ANOTHER ATHLETE. THIS DISTRIBUTING THE REVENUE FROM THE CONVEYANCE OF THE NAME, IMAGE, AND LIKENESS OF ALL ATHLETES AT THE BEGINNING OF THE SEASON, WHICH IS WHAT'S DONE, WOULD -- WOULD CORRELATE TO THAT FAIRNESS PRINCIPLE BY MAINTAINING THE QUALITY OF ALL ATHLETES. WHEN THE CONTRACTS ARE ENTERED INTO AS WELL, YOUR HONOR, THEY'RE ENTERED INTO FOR MULTIPLE YEARS. SO THEY -- THEY DO
NOT CALCULATE A DIFFERENT VALUE FOR ANY PARTICULAR PLAYER IN TERMS OF EITHER PERFORMANCE OR PRESENCE. THEY'RE PAYING FOR -THE COURT: OKAY. WHAT I'M TRYING TO GET AT IS IF
DR. NOLL'S THEORY SOLVES YOUR CONFLICT PROBLEM WITH RESPECT TO THE SHARING OF REVENUE AMONGST THE ATHLETES, MY QUESTION IS THEN, IF DR. NOLL'S' THEORY WERE NOT ACCEPTED BY WHOEVER WAS IN CHARGE OF ACCEPTING IT, WHETHER IT BE THIS COURT OR -- OR A JURY ULTIMATELY, WOULD YOU NOT THEN HAVE THAT CONFLICT AMONGST ATHLETES OF VARYING ABILITIES IN TERMS OF WHO SHOULD GET HOW MANY DOLLARS? MR. HAUSFELD: AS A PRACTICAL MATTER, YOUR HONOR,
THERE MAY BE SOME ATHLETES WHO WOULD THINK THAT THEY BUT THEN -- BUT THEN --
HAVE A GREATER VALUE THAN OTHERS.
THEN THE RELIEF BEING SOUGHT WOULD NOT BE A LESS RESTRICTIVE ALTERNATIVE, IT WOULD BE -- OPEN THE ENTIRETY OF THE NCA TO A MARKETPLACE BECAUSE THEN NO RESTRICTION WOULD PREVAIL AT ALL.
24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: WELL, I THINK WHAT WOULD HAPPEN IS THE
CLASS WOULD HAVE TO BE DECERTIFIED AFTER THE JURY RETURNED ITS VERDICT. MR. HAUSFELD: AGAIN, NO, YOUR HONOR, AND -- AND IT'S
LET'S GO BACK TO WHAT THE ANTITRUST DAMAGES ARE SEEKING.
FOR THE SALE OR CONVEYANCE OF THE N.I.L. FOR -- IN THE PAST. AND SO YOU -- YOU'RE KEEPING ALL OF THE OTHER THINGS EQUAL IN THE PAST. AND IF YOU KEEP ALL OTHER THINGS EQUAL, IT'S
WHAT IS THE VALUE IN TERMS OF WHAT THE AGGREGATE OR TOTALITY OF ATHLETES WOULD HAVE EARNED AS AN ALLOCATION OF THEIR N.I.L. RIGHTS AND THEN SHARING THAT EQUALLY AMONG THEM BECAUSE THEY'D ALREADY MADE THEIR CHOICES. THERE IS NO NEW CHOICE TO BE
MADE; THERE IS NO NEW MOVEMENT TO BE MADE. THE COURT: OKAY. TURNING TO ASCERTAINABILITY,
AGAIN, IF DR. NOLL'S'S THEORY WERE ACCEPTED BY THE JURY AND IF THE JURY WERE TO FIND -- AND I SORT OF FEEL LIKE IT WOULD HAVE TO BE THE JURY, ASSUMING THAT THERE WAS AT LEAST AN ARGUABLE OR COLORABLE BASIS FOR DR. NOLL'S' THEORIES, WOULD HAVE TO DECIDE -- WELL, IF THE JURY WERE TO DECIDE THAT HIS THEORY WERE CORRECT, THAT WOULD SOLVE ANY ASCERTAINABILITY PROBLEM BECAUSE ANYONE WHO WAS -- WELL, WE HAVE A FEW LITTLE PROBLEMS WITH WHETHER IT'S A PRESEASON ROSTER OR POST-SEASON ROSTER, BUT ASSUMING WE COULD FIGURE THAT ONE OUT, ANYBODY WHO WAS ON THE ROSTER OF THE TEAM WOULD BE ABLE TO PARTICIPATE IN THE LICENSE AND THEIR EQUAL PERCENTAGE OF THE LICENSING FEE.
25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HAUSFELD: THE COURT: YES, YOUR HONOR.
BUT IF THAT THEORY WERE NOT ACCEPTED,
SEEMS TO ME WE WOULD HAVE AN ASCERTAINABILITY PROBLEM BECAUSE WE WOULD HAVE TO KNOW WHETHER ANY PARTICULAR PERSON WHO WAS ON THE ROSTER ACTUALLY PLAYED ENOUGH SUCH THAT THEY WOULD HAVE GOTTEN ANY SORT OF PERCENTAGE OF THE MONEY THAT WAS PAID OVER. MR. HAUSFELD: YOU WOULDN'T HAVE -- YOU WOULDN'T HAVE YOU WOULD HAVE AN ALLOCATION
AN ASCERTAINABILITY PROBLEM.
ISSUE BECAUSE THE AMOUNT OF MONEY IN THE AGGREGATE WOULDN'T CHANGE. IT WOULD ONLY BE HOW THAT MONEY GETS DISTRIBUTED TO
THE DIFFERENT ATHLETES IF THERE WERE -- IF A JURY WERE TO DETERMINE THAT -- THAT THAT IS THE ECONOMICS OF WHAT WOULD HAVE HAPPENED DESPITE THE FACT THAT ALL OF DECISIONS WITH REGARDING (SIC) TO THOSE ATHLETES HAD BEEN MADE. THE COURT: SO WHAT IF IT WERE NOT ACCEPTED THAT
ANYONE ON THE ROSTER SHOULD BE INCLUDED BUT RATHER ONE NEEDED TO DETERMINE WHO ACTUALLY APPEARED IN A GAME THAT WAS BROADCAST? IS IT YOUR VIEW THAT THAT COULD BE ASCERTAINED? YES.
HOW? AND WE HAVE THE ROSTERS. WE HAVE THE
MR. HAUSFELD:
BROADCASTS -- THE LIVE BROADCASTS, WE HAVE THE REBROADCASTS, AND WE HAVE THE CLIPS OF THE MAJOR ENTITIES THAT USE CLIPS TO REBROADCAST PARTS OF THE LIVE GAMES. THE COURT: SO SOMEONE COULD GO THROUGH AND SAY, OH,
26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THERE'S NO. 6, NO. 93, AND NOW NO. 63 HAS GONE OUT, AND KEEP TRACK OF WHO ALL PLAYED IN A GIVEN DAY? MR. HAUSFELD: THAT'S DONE, FOR EXAMPLE, YOU KNOW,
IN -- IN MANY OTHER INDUSTRIES THAT ARE FAR MORE COMPLICATED, YOU KNOW, THAN THAT WOULD BE INVOLVED WITH DIVISION I MEN'S BASKETBALL AND FOOTBALL. THE COURT: SO THE ANSWER IS "YES" -YES.
MR. HAUSFELD: THE COURT: WATCHING THESE GAMES? MR. HAUSFELD: MR. CURTNER: YOUR HONOR. THE COURT: MR. CURTNER: THE COURT:
-- YOU THINK THAT COULD BE ASCERTAINED BY
YES. THE EXPERTS SAY THAT CAN'T BE DONE,
OKAY.
THAT'S ALL --
THEIR EXPERTS. -- ON THIS -- ON THE BROADCAST THEORIES,
SO IF YOU'D LIKE TO ADDRESS ANY OF THOSE POINTS THAT I ASKED COUNSEL ABOUT, YOU CAN. THE ONE THING THAT I WOULD ASK YOU ABOUT IS THE SUBSTITUTION EFFECT PROBLEM, WHICH -- WHICH I'M HAVING A HARD TIME SEEING. MR. CURTNER: LET ME, IF I MAY, YOUR HONOR, START ON THIS
WITH THE END AND SORT OF GO BACK TO THE BEGINNING.
ASCERTAINABILITY ISSUE, BOTH GERBRANDT, WHO WAS THEIR T.V. EXPERT, AND NOLL, WHO'S THEIR ECONOMICS EXPERT, CONCEDED THAT
27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THEY HAVEN'T DONE IT. IN TERMS OF WATCHING ALL OF THOSE
GAMES, THERE ARE THOUSANDS AND THOUSANDS AND THOUSANDS, TENS OF THOUSANDS OF GAMES THAT ARE ON T.V., REGIONAL T.V. LOCAL T.V., CABLE T.V., LATE NIGHT T.V., REBROADCASTS. A LISTING OF THEM, YES. THEY DO HAVE
BUT THERE IS NO WAY TO GO THROUGH SOME OF
THEM ALL AND IDENTIFY WHICH PLAYERS APPEARED ON THEM. THEM MIGHT BE ON THE BENCH. ONE SECOND.
SOME THEM MIGHT HAVE BEEN IN FOR
SOME OF THEM MIGHT HAVE -- IT CAN'T BE DONE. THEY HAVEN'T DONE IT.
THEY ADMIT THEY CAN'T DO IT. THE COURT:
WELL, THEN I SUPPOSE EACH PLAINTIFF MAY
HAVE TO SHOW HIMSELF ON T.V. IN ORDER TO BE PART OF IT, SO IF HE COULDN'T FIND HIMSELF IN ONE OF THE GAMES, THEN HE'D BE OUT. MR. CURTNER: BUT YOU COULDN'T DO THAT ON A YOU COULD DO IF A -AND GIVEN THE
CLASS-WIDE BASIS, IS THE POINT.
CERTAINLY INDIVIDUAL ACTIONS CAN DO THAT.
AMOUNT OF MONEY THAT PROFESSOR NOLL IS POSTULATING, INDIVIDUAL ACTIONS ARE COMPLETELY POSSIBLE. A -- A FAMOUS RIGHT TO -- OF PUBLICITY PLAINTIFF, WHO ACTUALLY DOES HAVE VALUE -- THERE ARE A HANDFUL OF THEM -COULD PURSUE THIS CLAIM. THE --
PROFESSOR NOLL AGREES THAT OVERWHELMING NUMBER OF PLAYERS, BOTH AT -- AT THE COLLEGE AND PROFESSIONAL LEVEL, HAVE NO INDEPENDENT STAND-ALONE RIGHT OF PUBLICITY VALUE. SO ASCERTAINABILITY IS A BIG ISSUE, AND THEY HAVE NO
28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOLUTION FOR IT OTHER THAN THIS ROSTER IDEA, WHICH IS A PROXY, AND IT'S AN IMPERFECT PROXY. APPEAR ON T.V. EVERYBODY ON THE ROSTER DOES NOT
AND SO THERE'S A DISCONNECT -- A SERIOUS
DISCONNECT BETWEEN THEIR LIABILITY THEORY AND THEIR ABILITY TO ASCERTAIN WHO'S IN THE CLASS. IT, SAYS YOU CAN'T DO THAT. THE COURT: THERE'S ALSO TALK OF -- I FORGOT WHAT AND -- THE CASE LAW, AS I READ
WHERE I READ IT -- BUT SOME SORT OF APP. OR WEBSITE THAT -THAT IDENTIFIES EVERYBODY AND THAT GOES THROUGH ON A PLAY-BY-PLAY ANALYSIS OF EVERY GAME AND SAYS, THERE'S NO. 6, THERE'S NO. 18, ET CETERA. IS THAT NOT TRUE? MR. CURTNER: THEY HAVEN'T DONE IT YET. IF IT
EXISTS, NOBODY HAS FOUND IT YET IN -THE COURT: MR. CURTNER: SOMEBODY TALKED ABOUT IT. -- IN SUFFICIENT DETAIL TO -- TO MAKE
IT ASCERTAINABLE, AND THEY CAN'T SOLVE THAT PROBLEM, AND THEY ADMIT THEY HAVEN'T SOLVED THAT PROBLEM YET. THE COURT: WELL, THEY COULD SOLVE IT -- IF
DR. NOLL'S THEORY IS ACCEPTED, THEN IT DOESN'T MATTER IF THEY WERE ACTUALLY ON T.V. OR NOT. IT ONLY MATTERS IF THEY WERE ON
THE ROSTER AND POTENTIALLY ON T.V. MR. CURTNER: BUT -- BUT THE UNDERLYING THEORY THAT
GIVES RISE TO AN ANTITRUST ACTION IN THEORY IS INJURY TO SOMEONE'S BUSINESS OR PROPERTY. THAT'S WHAT SECTION 4 OF THE
29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CLAYTON ACT REQUIRES. AND THE BUSINESS OR PROPERTY HERE IS AND WITHOUT AN
NAME, IMAGE, OR LIKENESS, RIGHT OF PUBLICITY.
INJURY TO BUSINESS OR PROPERTY, THERE'S NO ANTITRUST ACTION. THERE'S NO "THEIR" THERE (SIC) WITHOUT THE PROPERTY INTEREST. AND SO LET ME SPEAK TO THAT IF I MAY BRIEFLY. THE STUDENT ATHLETES' STATEMENT WHICH HAS BEEN -- WHICH THAT IS INCLUDED THIS ONE FORM 08-3A -- AND I'VE GOT HANDOUTS TOO, YOUR HONOR, BUT I CAN TELL YOU DON'T WANT THEM. THE COURT: YEAH, I HAVE THAT. IT HAS BEEN AROUND SINCE 2004. IT HAS
MR. HAUSFELD:
NOTHING TO DO WITH NAME, IMAGE, LIKENESS, OWNERSHIP RIGHTS. IT HAS NOTHING TO DO WITH BROADCAST. THE TESTIMONY -- THE
DECLARATIONS OF KEVIN LENNON, THE TESTIMONY OF ALL THE NCAA WITNESS (SIC) IS -- IS UNCONTRADICTED ON THIS POINT. THE PURPOSE OF THIS FORM -- ALL IT DOES IS PROMOTION OF EVENTS. THAT'S WHAT IT SAYS UP AT THE TOP, "PROMOTION OF NCAA GENERALLY PROMOTE NCAA CHAMPIONSHIPS OR
CHAMPIONSHIP EVENTS." OTHER NCAA EVENTS. ABSOLUTELY NOT. THE COURT:
IT IS NOT A RELEASE OF N.I.L. RIGHTS.
OKAY.
SO WE'RE TALKING NOW ABOUT THE
MERITS OF THEIR ANTITRUST CLAIM? MR. CURTNER: THE COURT: BUT -I MEAN, I UNDERSTAND THAT'S YOUR
INTERPRETATION OF THIS RELEASE, BUT I'M JUST -- I'M JUST NOT CLEAR ON WHAT POINT YOU'RE ADDRESSING -RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR (510) 451-7530
30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. CURTNER: THEORY OF THE CASE. THEORY OF THE CASE. CONVEYED RIGHTS. IT HAS NOTHING TO DO WITH THE BROADCAST IT HAD SOMETHING TO DO WITH THE OLD THEIR THEORY WAS THAT THIS SOMEHOW
BUT WE NOW ARE AT THE POINT IN THE CASE
WHERE WE HAVE EVIDENCE, AND THERE'S NO EVIDENCE TO THE CONTRARY. ALL WE GOT IS A THEORY. WE HAVE EVIDENCE THAT SAYS THE
STUDENT ATHLETE AT ALL TIMES OWNS, RETAINS THEIR N.I.L. RIGHTS. THERE'S ONE FOOTNOTE TO THAT. THERE ARE A FEW
CONFERENCES THAT HAVE STARTED GETTING RELEASES, BUT -- BUT THE NCA'S GOT NOTHING TO DO WITH THAT. BROADCAST RIGHTS. NOW, IT'S ALSO TRUE THAT NONE OF THE NAMED PLAINTIFFS COULD TESTIFY THAT THEY SIGNED THIS. THEY DID SAY THAT THEY THIS FORM DOES NOT CONVEY
THOUGHT THEY SIGNED A BUNCH OF FORMS, BUT THEY DIDN'T KNOW ABOUT THIS. AND THIS FORM -- THE TESTIMONY, THE EVIDENCE IS OKAY. SO THAT'S
UNCONTRADICTED, DID NOT EXIST PRIOR TO 2004. POINT ONE.
ON THE -- WHETHER A RIGHT OF PUBLICITY EXISTS, SOME STATES RECOGNIZE IT, ABOUT TWO-THIRDS OF THEM DO. NOT. SOME STATES, LIKE CALIFORNIA, HAVE SPECIFIC STATUTES ON THE SUBJECT, AND THEY SAY VARYING DIFFERENT THINGS. AND SOME ABOUT ONE-THIRD DO
SPECIFICALLY SAY THAT BROADCAST OF LIVE SPORTING EVENTS DO NOT IMPLICATE RIGHT OF PUBLICITY.
31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HONOR. AND THAT IS CONSISTENT WITH THE OVERWHELMING AND UNCONTRADICTED BODY OF LAW, THE GIANFREDO CASE, THE BALTIMORE ORIOLES CASE, AND THERE'S A HOST OF OTHERS, THE MOTOROLA CASE, THE FLY-ON-THE-WALL CASE OUT OF THE SECOND CIRCUIT, THEY ALL HOLD THAT THERE IS NO RIGHT OF PUBLICITY FOR APPEARING IN A LIVE UNSCRIPTED EVENT. THE COURT: NOW, IS THAT WHAT YOU DESCRIBED IN YOUR
BRIEF AS SAYING THAT YOU CAN'T SELL A RIGHT TO BROADCAST YOUR PERFORMANCE IN A GAME TO YOUR COLLEGE BECAUSE YOU DON'T HAVE SUCH A RIGHT? IS THAT -IT ACTUALLY, I THINK -THOSE WERE THE QUESTIONS I WAS ASKING
MR. CURTNER: THE COURT:
YOUR OPPONENT, SO IS THAT -- THAT'S WHERE YOU'RE GETTING THAT ARGUMENT IS -(SIMULTANEOUS COLLOQUY.) MR. CURTNER: -- SLIGHTLY DIFFERENTLY THAN THAT, YOUR
THEY DO HAVE A RIGHT, TO THE EXTENT THE RIGHT HAS ANY
VALUE AND EXISTS, AND IT MIGHT EXIST IN SOME STATES AND IT MIGHT EXIST SOMETIME IN THE FUTURE, BUT IT DOESN'T EXIST NOW. BUT NO -- BUT I WOULD PUT IT THIS WAY. NO SCHOOL OR
CONFERENCE OR BROADCASTER TO THIS STAGE IN THE HISTORY OF THE COUNTRY HAS SEEN IT -- SEEN FIT TO BUY THOSE RIGHTS BECAUSE THEY DON'T NEED TO. THE -- THE OVERWHELMING -THE COURT: -- THEY DON'T NEED TO BECAUSE THE NCAA
32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HAS A STRANGLEHOLD ON IT AND THEY KNOW THEY DON'T HAVE TO PAY FOR IT -(SIMULTANEOUS COLLOQUY.) THE COURT: MR. CURTNER: -- NCAA. -- IS FOR RIGHTS FOR PEOPLE WHO APPEAR
IN LIVE SPORTING EVENTS WHO ARE NOT SUBJECT TO NCAA RULES, GUESS WHAT HAPPENS? THE SAME THING.
COACHES APPEAR IN BROADCASTS, THEY DO NOT ASSIGN THEIR N.I.L. RIGHTS. UMPIRES APPEAR IN BROADCASTS, THERE'S NO CHEERLEADERS, PEP BANDS, ALL --
ASSIGNMENT OF THEIR RIGHTS.
YOU KNOW, MASCOTS, ALL KINDS OF PEOPLE APPEAR IN LIVE SPORTING EVENTS IN THIS COUNTRY, AND THERE IS A UNIFORM PRACTICE SO FAR AS WE CAN TELL, AND THE TRUTH OF THE MATTER IS BEFORE WE GOT INTO THIS CASE, THE NCA DIDN'T HAVE ALL THESE -- THESE BROADCAST CONTRACTS. THERE'S A UNIFORM PRACTICE THAT SUCH RIGHTS ARE NOT TRANSFERRED AND ARE NOT SEPARATELY SOLD. WHY IS THAT?
BECAUSE -- IT'S BECAUSE THE CASE LAW UNIFORMLY RECOGNIZES THAT IF YOU GO OUT IN PUBLIC, YOU'RE FAIR GAME TO BE PUT ON T.V. IF YOU GO IN FRONT OF A CAMERA AND YOU KNOW YOU'RE IN FRONT OF A CAMERA, YOU ARE CONSENTING TO BEING BROADCAST. AND THE NINTH CIRCUIT DECIDED THE CASE INVOLVING SHIRLEY JONES OF THE PARTRIDGE FAMILY. SHE SUED CORVIS FOR USE -- FOR
SELLING PICTURES OF HER ON RED CARPETS AT VARIOUS HOLLYWOOD EVENTS, AND SHE LOST IN THE NINTH CIRCUIT BECAUSE THEY SAID
33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SHE CONSENTED. SHE KNEW SHE WAS BEING PHOTOGRAPHED, AND SHE
KNEW THAT THEY WERE COMMERCIAL PHOTOGRAPHERS AND THAT THEY WOULD LATER GET SOLD. THE SAME THING IS TRUE.
NOW, THE COURTS DO GET THERE THROUGH A VARIETY OF DIFFERENT RUBRICS, I CONCEDE. BUT THEY ARE ALL INDIVIDUAL. SOME
AND SO SOME STATES, THERE'S NO RIGHT OF PUBLICITY.
STATES, THERE'S A STATUTE, LIKE CALIFORNIA AND SEVERAL OTHERS. SOME VIEW IT AS A MATTER OF CONSENT. USE. SOME VIEW IT AS EDITORIAL USE. SOME VIEW IT AS FAIR SOME VIEW IT AS FIRST BUT THEY
AMENDMENT.
SOME VIEW IT AS COPYRIGHT PREEMPTION.
ALL GET TO THE SAME RESULT, WHICH IS THERE IS NO SUCH PROPERTY INTEREST. SO THAT LEADS YOU TO THE ANTITRUST ISSUE. EVEN IF YOU
COULD ASSUME THAT SOMEBODY MIGHT BE ABLE TO CREATE SUCH A PROPERTY INTEREST, SOMEWHERE. BUT THEY'RE ALL VERY INDIVIDUAL
QUESTIONS AND COULD NOT BE RESOLVED AT A CLASS, BUT THEN YOU GET TO THE NEXT QUESTION AND THAT IS, IS THERE ANTITRUST IMPACT AND STANDING THAT CAN BE PROVEN ON A CLASS-WIDE BASIS WITH COMMON PROOF. AND THAT GETS BACK TO THE QUESTIONS THAT I'VE BEEN TALKING ABOUT. ALL OF THE EVIDENCE BEFORE YOU IS THAT NO SCHOOL OR IF -- IF YOU BLOW UP
CERTAINLY NOT ALL SCHOOLS WOULD RESPOND.
INTERCOLLEGIATE SPORTS THE WAY WE HAVE IT NOW, WHERE IT'S PLAYED BY STUDENTS, WHO ARE AMATEURS, AND ALL OF A SUDDEN IT'S PLAYED BY -- BY PROFESSIONALS OR SEMI-PROFESSIONALS, IS EVERY
34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ON -(SIMULTANEOUS COLLOQUY.) MR. CURTNER: THE COURT: MR. CURTNER: -- WOULD NOT HAPPEN. I'M SORRY? ALL OF THE RECORD EVIDENCE FROM PEOPLE HONOR. NOT. SCHOOL THAT'S CURRENTLY PLAYING DIVISION I FOOTBALL AND BASKETBALL GOING TO START PAYING PEOPLE. SO THEY HAVE A THEORY, AND PROFESSOR NOLL'S SAYS HE HAS AN ASSUMPTION THAT THEY WOULD, BUT IT'S NO BETTER THAN AN ASSUMPTION. IT IS UNSUPPORTED. AND THE EVIDENCE --
THE COURT:
WELL, IT'S A PREDICTION, LIKE ALL
PREDICTIONS OF -- IN ANTITRUST CASES, WHICH IS WE MUST LOOK FOR A BUT-FOR SCENARIO, IF THE PROHIBITED CONDUCT HADN'T HAPPENED, WHAT WOULD HAVE HAPPENED. SO THE SORT OF MEAT AND
POTATOES OF ANTITRUST IS TO KIND OF PREDICT WHAT WOULD HAVE HAPPENED. AND IT SEEMS LIKE THAT'S WHAT DR. NOLL IS DOING. MR. CURTNER: ABSOLUTELY. THAT IS CORRECT, YOUR AND HERE, IT'S
BUT IT HAS TO BE BASED ON SOMETHING.
IT'S MERELY AN ASSUMPTION, WHICH HE ADMITS IS AN
ASSUMPTION. THE COURT: WELL, IT'S BASED ON THINGS. IT'S BASED
WHO ACTUALLY ARE IN THE BUSINESS OF NEGOTIATING THESE CONTRACTS, FROM PEOPLE -- FROM OVER 300 CONTRACTS THAT ARE FOR THE BROADCAST OF THESE KIND OF EVENTS, WHICH WE SUBMITTED, AND FROM PEOPLE WHO ARE NOT SUBJECT TO NCAA RULES, IS THAT NO SUCH
35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 TRANSFER OF RIGHTS DOES TAKE PLACE, NO SUCH PAYMENTS FOR SUCH RIGHTS DOES TAKE PLACE. AND THE -- THE SCHOOLS SAY, AT LEAST MANY OF THEM, THEY DON'T WANT TO PARTICIPATE IN SUCH A FORM OF SEMI-PRO OR PRO SPORTS AND THAT THEY WOULD DO SOMETHING ELSE WITH THEIR ATHLETIC PROGRAMS. SO DR. NOLL'S ASSUMPTION, HIS PREDICTION, IS NOTHING BUT PIE IN THE SKY. IT'S JUST A GUESS. IT'S NOT BASED ON
ANYTHING, AND WE HAVE SUBSTANTIAL EVIDENCE TO THE CONTRARY. THAT UNDER -- UNDER COMCAST IS NOT ENOUGH TO CERTIFY A CLASS, AND THAT'S REALLY THE BASIC ARGUMENT I WANT TO MAKE. THE IDEA
THAT THE ANTITRUST LAWS PREEMPT RIGHT OF PUBLICITY LAWS IS -THAT'S JUST BACKWARDS. YOU HAVE TO HAVE A PROPERTY INTEREST
BEFORE YOU CAN EVEN START TALKING ABOUT ANTITRUST. THE COURT: WELL, SO WHAT IS IT THAT THE COLLEGES ARE
SELLING WHEN THEY SELL A LICENSE TO BROADCAST THEIR GAME? MR. CURTNER: THEY'RE SELLING -- AND THIS IS WHAT IS
IN THE DECLARATIONS, YOUR HONOR, AND THIS IS WHAT'S IN THE CONTRACTS -- THEY ARE SELLING EXCLUSIVE ACCESS TO THEIR STADIUM OR ARENA. THEY ARE SAYING TO CBS, YOU CAN COME IN
HERE AND BROADCAST THIS AND NOBODY ELSE CAN. THAT IS WHAT THEY'RE SELLING. AND THAT'S -- I DIDN'T MAKE THIS UP. RECORD. THAT'S IN THE
THAT IS ALL THEY'RE SELLING, AND THEY'RE ALSO GIVING
A LICENSE TO THEIR OWN INDIVIDUAL -- THEIR SCHOOL'S

36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INTELLECTUAL PROPERTY. THEY DO NOT TRANSFER THE PLAYERS, THE
COACHES, THE REFEREES, OR ANYBODY ELSE'S NAME, IMAGE, OR LIKENESS RIGHTS, EXCEPT THERE ARE A FEW -- THERE'S A HANDFUL OF CONTRACTS THAT DO, BUT THE OVERWHELMING NUMBER OF THEM DO NOT. AND IT'S -- IT'S JUST -- THAT'S THE WAY THE BROADCAST INDUSTRY WORKS AND HAS WORKED FOR MANY, MANY YEARS. DOES IT WORK THAT WAY? GET THOSE RIGHTS. AND WHY
BECAUSE THEY DON'T THINK THEY NEED TO THAT'S THE -YOU
BECAUSE IT'S A PUBLIC EVENT.
AND, YOU KNOW, IT REALLY -- AND I APOLOGIZE IF I GO ON. CAN -- I KNOW YOU KNOW HOW TO STOP ME. FIRST AMENDMENT CONCEPTS.
IT REALLY GOES BACK TO
THEY DON'T ALWAYS CALL IT THAT,
THAT IF YOU ARE IN A PUBLIC PLACE OR A SEMI-PUBLIC PLACE, YOU CAN BE WRITTEN ABOUT. SO THE SPORTS PRESS OR THE PUBLIC PRESS
COULD WRITE ABOUT WHAT GOES ON ON THE FIELD AND THERE'S AN ABSOLUTE RIGHT TO DO THAT. THEN RADIO CAME ALONG, AND THEY COULD BROADCAST WHAT WAS GOING ON ON THE FIELD, AND THERE WAS A -- A RIGHT TO DO THAT. AND THEN T.V. CAME ALONG, AND THERE'S A RIGHT TO DO THAT. SO WHAT CAN THE SCHOOLS CONTROL? AND
THEY CAN CONTROL ACCESS TO
THEIR STADIUM, AND SO THEY SAY YOU'RE THE ONLY BROADCASTER WE'RE GOING TO ALLOW IN HERE TO DO A NATIONAL BROADCAST. WE'LL ALSO ALLOW SOME OTHER BROADCASTER IN HERE TO DO A LOCAL BROADCAST, AND WE'LL ALLOW SOMEBODY ELSE IN HERE TO DO AN INTERNATIONAL BROADCAST, BUT THAT'S -- WHAT ARE THEY SELLING?
37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROBLEM. OKAY. THEY'RE SELLING ACCESS, AND THAT IS EXACTLY WHAT THE CONTRACTS SAY, AND THAT'S WHAT THE DECLARATIONS SAY. THAT'S THE EVIDENCE BEFORE YOU ON THAT POINT, YOUR HONOR. THE COURT: HMM.
DID YOU WANT TO TALK ABOUT THE SUBSTITUTION EFFECT? MR. CURTNER: YES. LET ME -- I DON'T THINK NOLL'S'
THEORY, EVEN IF IT WERE TO BE ACCEPTED BY A TRIER OF FACT, SOLVES THE ASCERTAINABILITY OR THE CONFLICT PROBLEMS. CONFLICT AND THE SUBSTITUTION ISSUE -- LET ME TAKE SUBSTITUTION FIRST. THE COURT: WELL, THERE'S TWO PARTS FOR THE CONFLICT THE
ONE IS THE EQUAL SHARING CONFLICT, AND THE OTHER IS I SEE THOSE AS TWO DIFFERENT THINGS. AND THE EQUALLY SHARING, YOU'VE THE -- THE ONLY THING I WOULD WE HAVE
SUBSTITUTION.
MR. CURTNER:
OBVIOUSLY GOT -- GOT THAT ONE.
ADD TO THAT IS THAT WE DON'T HAVE EQUAL SHARING NOW. PLAYERS WHO GET SCHOLARSHIPS.
WE HAVE PLAYERS WHO GET PARTIAL AND THE
SCHOLARSHIPS, AND WE HAVE PLAYERS WHO ARE WALK-ONS. WALK-ONS PLAY FOR -- FOR NOTHING.
THE SCHOLARSHIP PLAYERS
ACTUALLY GET QUITE A LOT FOR IT, SO WE DO NOT HAVE EQUAL SHARING NOW. AND PROFESSOR NOLL IGNORES THAT IN HIS
ASSUMPTION THAT ONE OVER N OR EQUAL SHARING WOULD -- WOULD CONTINUE. BUT THE -- AND THE CONFLICT IS BECAUSE HE ALSO CONCEDES -AND THIS IS BASIC ECONOMICS -- THAT THERE'S A HANDFUL OF
38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PLAYERS WHO MIGHT HAVE VALUE, AND THERE'S THE GREAT BULK OF THE PLAYERS WHO HAVE NO VALUE. AND SO THE -- THE HOLD-OUT,
THE STAR QUARTERBACK, THE JOHNNY MANZELLE COULD SAY, I'M ONLY GOING TO PLAY IF YOU -- THE BROADCASTER GIVES ME A LOT OF MONEY, RIGHT? AND EVERYBODY ELSE IS GOING TO GET NOTHING.
AND SO SOMEBODY SAYS, WELL, TO BE FAIR, YOU GOT TO SHARE IT WITH EVERYBODY. AND HE'LL SAY, WELL, I STILL WANT FIVE THERE IS NO WAY TO SOLVE
SHARES INSTEAD OF -- OR 50 SHARES.
THAT PROBLEM, AND PROFESSOR NOLL ADMITS THERE'S NO WAY TO SOLVE THAT PROBLEM, AND SO HE ASSUMES IT AWAY. OWN QUESTION. THE COURT: WELL, HE SAYS THAT HE PREDICTS THAT HE ANSWERS HIS
THAT'S HOW IT WOULD TURN OUT, AND IT SEEMS TO ME IT'S FOR THE JURY TO DETERMINE WHETHER THAT IS HOW IT WOULD TURN OUT, OR WHETHER YOUR GUY'S PREDICTION OF HOW IT WOULD TURN OUT IS HOW IT WOULD TURN OUT. AND IT SEEMS TO ME THE EFFECT OF IT IS, IF IT WERE TO GO TO THE JURY AND THE JURY WERE TO SAY, NO, WE DON'T THINK WHAT NOLL SAYS HAPPENS HAPPENS, I'M -- I AM WORRIED ABOUT WHAT WOULD HAPPEN IN THAT EVENT. AND IT SEEMS TO ME WHAT WOULD
HAPPEN IS THE CLASS WOULD BE DECERTIFIED BECAUSE IT WOULD NO LONGER -(SIMULTANEOUS COLLOQUY.) THE COURT: MR. CURTNER: -- ANY COMMON QUESTION ON DAMAGES. NOLL SAYS, WELL, WE MIGHT HAVE A UNION.
39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IT MIGHT BE DONE AT THE CONFERENCE LEVEL. OR I THINK, AS HE
SAID MOST RECENTLY, THE MOST LIKELY THING IS THAT THE NCAA WOULD PASS A RULE MANDATING EQUAL SHARING. WHY WOULD THE NCAA DO THAT? IT'S JUST GOT SUED FOR -- FOR
ALLEGEDLY VIOLATING THE ANTITRUST LAWS, AND NOW IT'S GOING TO PASS A RULE THAT SAYS EQUAL SHARING? THAT'S THE NEXT LAWSUIT. THAT'S GOING TO BE --
WHY WOULD THEY PASS SUCH A RULE?
THAT'S -- THAT IS COUNTER-FACTUAL AND COUNTERINTUITIVE. IN TERMS OF CONFLICT AND SUBSTITUTABILITY, PROFESSOR NOLL, IN ORDER TO FIND AN ALLEGATION OR TO REACH AN OPINION AS TO ANTI- -- ANTI-COMPETITIVE IMPACT, SAYS THAT THERE WOULD BE WHAT THE ECONOMISTS CALL "DEAD WEIGHT LOSS," AND HE SAYS THAT WOULD OCCUR BECAUSE SOME PEOPLE WOULD NOT PLAY COLLEGE SPORTS WHO OTHERWISE WOULD, AND SOME PEOPLE WOULD LEAVE EARLY WHO OTHERWISE WOULD STAY IN SCHOOL SO THAT THE NET EFFECT IS THAT YOU GOT PEOPLE NOT IN THEIR HIGHEST AND BEST USE. HE CALLED "DEAD WEIGHT LOSS." AND AS SOON AS YOU MAKE THAT ASSUMPTION OR THAT CONCLUSION AS TO -- WHICH HE HAS TO DO IN ORDER TO -- TO MAKE AN ANTITRUST VIOLATION APPEAR, THEN YOU HAVE SUBSTITUTABILITY AND YOU HAVE CONFLICT, BECAUSE THE BUT-FOR WORLD IS GOING TO HAVE DIFFERENT PEOPLE ON THE SAME TEAMS THAN THE REAL WORLD. AS SOON AS YOU HAVE DIFFERENT PEOPLE ON THE TEAMS IN THE BUT-FOR WORLD, THEN YOU HAVE SUBSTITUTION PROBLEMS, AND YOU HAVE CONFLICT AMONG THOSE PEOPLE.
THAT'S WHAT
AND
40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 AND THAT'S WHY JUDGE KUNAUER DID NOT CERTIFY THE CLASS IN THE WALK-ONS CASE. THE COURT: WELL, SEE, THAT'S THE PART I DON'T GET, I DON'T
THE BUT-FOR -- LET'S CALL IT THE "BUT-FOR SCENARIO."
LIKE THIS "BUT-FOR WORLD" AS THOUGH IT WAS A WHOLE WORLD OUT THERE, BUT THE BUT-FOR SCENARIO IT SEEMS IS DONE FOR THE PURPOSE OF CALCULATING DAMAGES. OF SEEING WHO'S IN THE CLASS. IT'S NOT DONE FOR THE PURPOSE SO THE PEOPLE WHO ARE IN THE
CLASS ARE THE PEOPLE WHO ARE IN THE CLASS, AND THEY AREN'T SUBSTITUTED. THEY'RE JUST THE PEOPLE WHO ACTUALLY DID GO TO SO NOTHING EXCHANGES.
COLLEGE AND PLAY ON THE TEAMS.
THEY AREN'T LIKE -- IT'S NOT LIKE A WALK-ON CASE WHERE YOU HAVE TO PROVE THAT YOU WERE ONE OF THE PEOPLE WHO HAD GOTTEN THE SCHOLARSHIP. ON THE TEAM. TRUE ENOUGH, WE HAVE A SORT OF HYPOTHETICAL SCENARIO ABOUT WHAT MONEY EVERYONE GETS AND IF THAT WERE HOW IT TURNED OUT, THEN THERE MIGHT BE EFFECTS ON WHO WOULD BE ON COLLEGE TEAMS IN THE FUTURE, BUT IT WOULDN'T AFFECT WHO IS, IN FACT, CURRENTLY ON A COLLEGE TEAM OR -- OR WAS AT THE TIME -MR. CURTNER: THE THEORY IS TO AWARD DAMAGES IN THE YOU DON'T HAVE TO DO THAT BECAUSE YOU WERE
BUT-FOR SCENARIO THAT WOULD HAVE EXISTED IF THESE RESTRAINTS -- IF THE NCAA RULES ON AMATEURISM, IF INTERCOLLEGIATE ATHLETICS WERE DIFFERENT, THEN THE DAMAGES SHOULD GO TO THE PEOPLE WHO WOULD BE ON THOSE TEAMS IN THE
41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BUT-FOR SCENARIO BECAUSE -THE COURT: NO, THE DAMAGES -- THE AMOUNT OF DAMAGES
ARE CALCULATED BY THE SCENARIO, BUT THEY GO TO THE PEOPLE WHO WERE ACTUALLY ON THE TEAM, WHO ARE THE ACTUAL CLASS MEMBERS. WE DON'T SORT OF START BRINGING IN NEW PEOPLE AT THE DAMAGES PHASE. MR. CURTNER: SOME PEOPLE WERE BENEFITED BY THESE
RULES, YOUR HONOR, BECAUSE IN THE -- THE BUT-FOR SCENARIO, THEY WOULD HAVE GOTTEN NOTHING. BEEN HOME. THEY WOULD -- THEY MIGHT HAVE THEY -- THEY AND
THEY MIGHT HAVE BEEN OUT OF SCHOOL.
MIGHT HAVE GOTTEN ZERO, BUT SOME OF THEM WERE BENEFITED. THEY DON'T -- IF THEY WERE BENEFITED, THEY'RE NOT IN THE CLASS. SO YOU -- THE CLASS HAS TO BE MODELED ON THE BUT-FOR SCENARIO. YOU CAN'T JUST USE THE BUT-FOR SCENARIO TO THE BUT-FOR SCENARIO GOES TO LIABILITY IT'S NOT
DETERMINE DAMAGES.
GOES TO CLASS CONSTITUTION, AND GOES TO DAMAGES. JUST A DAMAGES CONCEPT. THE COURT: MR. CURTNER: HMM. REALLY?
IT'S A LIABILITY CONCEPT.
AND -- AND SO HE DOESN'T SOLVE IT, AND -- AND FURTHERMORE, NOLL FURTHER ADMITS THAT IF YOU CHANGE THESE RULES, THAT SOME COLLEGES WOULD LEAVE THE MARKET. SOME WOULD GO TO AN IVY
LEAGUE MODEL WHERE THEY WOULDN'T PAY ANYTHING AND THEY WOULDN'T GRANT SCHOLARSHIPS. SOME MIGHT GO OFF AND FORM A NEW
42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ASSOCIATION OUTSIDE OF THE NCAA WHERE THEY COULD CONTINUE TO HAVE AMATEURISM. HE ADMITS THAT THAT'S FINE AS LONG AS IT WAS SO WE DON'T KNOW
DONE ON A CONFERENCE-BY-CONFERENCE BASIS.
WHAT THE -- THE BUT-FOR WORLD WOULD LOOK LIKE. THIS IS DIFFERENT, YOUR HONOR, THAN YOUR ORDINARY PRICE FIX, BECAUSE IN THE ORDINARY CASE OF A PRICE FIX, YOU HAVE TRANSACTIONS THAT ACTUALLY OCCURRED AT A PARTICULAR PRICE AND THAT WAS -- THAT WAS RIGGED SOMEHOW. AND SO YOU THEN CAN HAVE
AN EXPERT SAY, IN MY OPINION, IF THEY HADN'T BEEN RIGGING PRICES, THE PRICES WOULD HAVE BEEN "X" PERCENT LOWER. THE COURT: WELL, THAT'S WHAT HE SAYS. HE SAYS --
(SIMULTANEOUS COLLOQUY.) MR. CURTNER: THE COURT: -- NEVER OCCURRED. RIGHT. HE SAYS THEY PAID ZERO AND HAD
THINGS BEEN DIFFERENT, THEY WOULD HAVE PAID "X." BUT, ANYWAY, LET'S MOVE ON. IF YOU CAN -- DO YOU HAVE
ANYTHING YOU FEEL COMPELLED TO SAY IN RESPONSE TO WHAT COUNSEL HAS SAID, BECAUSE I WANT TO GO ON AND TALK ABOUT THE VIDEO GAMES. MR. HAUSFELD: IF I CAN SHORTLY, YOUR HONOR, WITH --
WITH REGARD TO THE COMMONALITY, SOME OF THE THINGS THAT WERE JUST ACKNOWLEDGED, YOU KNOW, BY COUNSEL FOR THE NCAA. THE FIRST IS WE -- WE'RE IN AGREEMENT. NO PAYMENTS ARE
MADE TO ANY ATHLETE AT ANY TIME IN ANY FORM FOR THE CONVEYANCE OF N.I.L. RIGHTS. THAT IS A PREDOMINATING COMMON ISSUE. THE
43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ISSUE IS WHY. THAT IS A PREDOMINATING COMMON ISSUE. THEY ALLEGE, YOU KNOW, SOME BROAD THEY
ALLEGE AMATEURISM.
REFERENCE TO BYLAWS, BUT THAT IS A PREDOMINATING COMMON ISSUE ALL DERIVED FROM THE SINGLE FACT WHICH COUNSEL JUST ELOQUENTLY STATED, THAT NO PAYMENTS ARE MADE TO ANY ATHLETE AT ANY TIME. THE COURT: FOR BROADCAST. FOR BROADCAST.
THEY PAY FOR BOBBLE HEADS. ACTUALLY, THEY DON'T -- AFTER
MR. HAUSFELD:
ELIGIBILITY, THE ATHLETE CAN GO OUT AND ENDORSE A BOBBLE HEAD OR WHATEVER -THE COURT: OKAY. -- BUT THE ISSUE IS CLEAR. NO
MR. HAUSFELD:
ATHLETE, NO PAYMENT DURING THE PERIOD OF ELIGIBILITY. WHY? THAT'S PREDOMINANTLY COMMON. WHAT IS THE DAMAGE
THAT RESULTS FROM THAT?
IT'S THE DIFFERENCE BETWEEN ZERO AND
WHAT THE ATHLETES IN TOTALITY WOULD HAVE CREATED AS A POOL FOR ATHLETES. AND THEN THERE'S THE -- THE THIRD STEP, THE BUT CLEARLY IN THE BUT-FOR WORLD, THE
ALLOCATION OF THAT.
FIRST STEP IS THERE IS A CONTRACT WHICH CONVEYS THE INTELLECTUAL PROPERTY OF THE ASSOCIATION, THE CONFERENCE, THE SCHOOL, THE SCHOOL COLORS, AND THE ATHLETE'S NAME, IMAGE, AND LIKENESS. MR. CURTNER SAYS THAT IS THE WAY THE BROADCAST INDUSTRY WORKS. THAT IS A PREDOMINATING COMMON QUESTION. HOW DOES THE
44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BROADCAST INDUSTRY WORK? EVENTS? HOW DOES IT RELATE TO OTHER SPORTING DO NOT THE
DO PROFESSIONALS NOT CONVEY THEIR RIGHTS?
BROADCAST RIGHTS FOR PROFESSIONAL SPORTS EVENTS OR NON-COLLEGIATE SPORTING EVENTS INCLUDE THE CONVEYANCE OF NAME, IMAGE, AND LIKENESS FOR EVERY ATHLETE ON THE ROSTER OF THOSE TEAMS THAT ARE PLAYING? QUESTION. IF IT IS, WHAT'S THE DIFFERENCE BETWEEN THE CONVEYANCE OF THOSE RIGHTS AND THE PRECLUSION OR THE NON-CONVEYANCE OF THE RIGHTS OF THE -- THE COLLEGE ATHLETES? PREDOMINATING COMMON QUESTIONS. WHAT -- IS ALSO LOST, YOU KNOW, IN -- IN THE CONFUSION OF WHETHER THERE, YOU KNOW, IS A RELEASE REQUIRED OR, AS ONE OF THE -- THE DEFENDANTS' EXPERTS SAID -- AND THIS IS -- THIS IS PART OF THE PERPLEXING NATURE OF THE CONSTANTLY SHIFTING POSITION OF NCAA -- WHERE THEIR EXPERT SAID, AN ATHLETE CURRENTLY ENROLLED IN A COLLEGE THAT HAS -- IS REQUIRED -- IS REQUIRED TO SIGN A CONTRACT AND HE LOSES -- THAT CONTRACT FORBIDS HIM, BASICALLY APPROPRIATES OR GIVES THE UNIVERSITY OR COLLEGE THE RIGHT TO HIS NAMES (SIC), LIKENESS, AND IMAGE. HE THOSE ARE THE THAT IS A PREDOMINATING COMMON
FORFEITS THE RIGHT TO THAT, AND THAT'S -- CONTRACTS ARE COMMON AMONG INDIVIDUALS AND THESE DIVISION I CONFERENCES. HOW DO WE SQUARE THAT WITH WHAT THE COURT WAS JUST TOLD? THAT IS A PREDOMINATING COMMON QUESTION. RIGHTS? ARE THESE RIGHTS FORFEITED? DO THEY TAKE THESE
ARE THEY ACQUIRED OR, AS
45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 GAMES. MR. CURTAIN SAID, DO THE ATHLETES RETAIN THOSE RIGHTS BUT THEY JUST CAN'T EXERCISE THEM? WELL, IF THEY CAN'T, THEN WHEN
THEY'RE FINISHED WITH THEIR ELIGIBILITY, THEY SHOULD BE ENTITLED TO RECEIVE THE FRUITS AND BENEFITS OF THOSE RIGHTS THAT WERE IN ESSENCE HELD IN ABEYANCE OR TRUST FOR THEM DURING THEIR ELIGIBILITY. THE COURT: OKAY. LET'S GO ON AND TALK ABOUT VIDEO AND IF SO, WHAT?
DO YOU HAVE CLAIMS AGAINST CLC? MR. HAUSFELD: YES, YOUR HONOR.
AND THIS -THE COURT: JUST, LIKE, A SENTENCE. JUST EXPLAIN TO
ME WHAT YOUR COMPLAINT -- 'CAUSE YOU DON'T TALK ABOUT CLC MUCH IN YOUR PAPERS, SO IF YOU COULD JUST TELL ME A SENTENCE OF WHAT YOUR DISPUTE WITH CLC IS. MR. HAUSFELD: CLC, FOR EXAMPLE, ACTED AS A
GO-BETWEEN FOR THE NCAA AND VIDEO GAME MANUFACTURERS. THE COURT: OKAY. THAT'S ONE. ANYTHING ELSE?
MR. HAUSFELD:
THEY WERE THE ONES WHO WERE ADVOCATING
WAIVER AND -- AND/OR EXPANSION OF THE RULES AS PRESENTLY WRITTEN TO PERMIT THE -- THE LIKENESS BEING USED WITHOUT PAYMENT TO THE ATHLETES. THE COURT: OKAY. IS THAT IT?
YES, YOUR HONOR. AND WHAT ABOUT EA? DO YOU HAVE
OKAY.
ANYTHING FOR THEM BESIDES THE VIDEO GAMES?
IN OTHER WORDS, MY
46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REAL QUESTION IS, ARE YOU COMPLAINING THAT THEY'RE USING BROADCAST FOOTAGE? MR. HAUSFELD: FOOTAGE, YOUR HONOR. THE COURT: BROADCAST FOOTAGE? MR. HAUSFELD: THEY -- THEY UTILIZE BROADCAST -THEY'RE INTEGRATING THE BROADCAST THEY INTEGRATE --- COMPLAINING THAT THEY'RE USING
(SIMULTANEOUS COLLOQUY.) THE COURT: -- THE QUESTION IS, ARE YOU COMPLAINING I UNDERSTAND YOU
THAT THEY ARE USING BROADCAST FOOTAGE? SAY --
(SIMULTANEOUS COLLOQUY.) THE COURT: -- THEY ARE, BUT IS THAT PART OF YOUR
ANTITRUST COMPLAINT AGAINST THEM? MR. HAUSFELD: THE COURT: NO, THE ANTITRUST -GOOD.
OKAY.
MR. HAUSFELD:
-- COMPLAINT AGAINST THEM IS THE FACT
THAT THEY DELIBERATELY DO NOT PAY THE ATHLETES FOR THEIR NAME, IMAGE, AND LIKENESS. THE COURT: FOR THEIR USE IN VIDEO GAMES? YES. OKAY.
YEAH.
SO THE DEFENDANTS SAY REPEATEDLY THAT YOU CAN'T SUE SOMEBODY FOR FOLLOWING THE RULES OF A BUSINESS PARTNER OR SOMEBODY ELSE. I UNDERSTAND YOU CAN SUE THEM FOR ENTERING
47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INTO A CONSPIRATORIAL AGREEMENT IN RESTRAINT OF TRADE, BUT IF YOU'RE DEALING WITH SOMEBODY AND THEY'VE GOT CERTAIN RULES THAT YOU HAVE TO FOLLOW TO -- IN ORDER TO DEAL WITH THEM AND YOU FOLLOW THEM, WITHOUT AGREEING TO RESTRAIN TRADE OR ANYTHING ELSE, YOU JUST SAY, WELL, I WANT TO DEAL WITH THESE PEOPLE AND HERE'S THEIR RULES, I'M GOING TO HAVE TO DO WHAT THEY SAY, HOW CAN THAT BE ILLEGAL? ANTITRUST VIOLATION? MR. HAUSFELD: THE COURT: HERE'S THE -HOW -- HOW CAN THAT BE AN
THAT'S THEIR ARGUMENT, I THINK. HERE'S THE ANOMALY. WE HAVE EA SAYING
MR. HAUSFELD:
WE'RE MERELY FOLLOWING THE RULES. NCA SAYING THERE ARE NO RULES.
WE HAVE MR. CURTNER AND THE
WHICH IS IT?
(SIMULTANEOUS COLLOQUY.) THE COURT: LET'S POSIT THAT THERE ARE SOME. EXACTLY, YOUR HONOR. IF THERE ARE
MR. HAUSFELD:
SOME, THEY ARE COLLABORATING AND CONNIVING WITH THE NCAA TO CIRCUMVENT THOSE RULES SO THAT THEY CAN USE THE NAME, IMAGE, AND LIKENESS OF THOSE ATHLETES WITHOUT MAKING COMPENSATION TO THOSE ATHLETES FOR THAT RIGHT BUT WHILE PAYING KICKBACKS TO THE NCA FOR DOING SO. THE COURT: AND SO I'LL ASK YOU THE SAME QUESTION
HERE AS WITH REGARD TO THE GAMES, YOU WOULD -- WELL, I KNOW YOUR FIRST POSITION IS THAT THEY DON'T HAVE TO HAVE BEEN IN A -- WELL, MAYBE THIS ISN'T.
48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ROSTERS. THE COURT: OKAY. SO IF -- LET'S SAY THAT DIDN'T FLY IS -- I GUESS IT'S YOUR POSITION THAT THEY DON'T HAVE TO HAVE ACTUALLY HAVE BEEN AN AVATAR IN A VIDEO GAME IN ORDER TO RECOVER, THAT ANYBODY WHO IS ON THE ROSTER SHOULD BE ABLE TO RECOVER. MR. HAUSFELD: THE COURT: YES, YOUR HONOR.
IS THAT RIGHT? THAT IS WHAT EA BUYS. THEY BUY THE
MR. HAUSFELD:
AND ONE HAD TO SAY THAT THEY WERE -- THEY WERE AN AVATAR IN A VIDEO GAME IN ORDER TO RECOVER, I GUESS YOU WOULD SAY THAT EVERYONE -- THAT THAT YOU WOULD BE CONTENT TO LET EVERYBODY TRY TO SHOW WHO THEY WERE, AND IT WOULD HAVE TO BE DETERMINED WHETHER THEY REALLY WERE THAT AVATAR OR NOT, AND THEY WOULD HAVE TO SHOW THAT THEY WERE IN ORDER TO BE IN THE CLASS. MR. HAUSFELD: AND THAT'S CLEARLY ASCERTAINABILITY
BECAUSE ALL THOSE VIDEO GAMES EXIST. THE COURT: WELL, THEY CERTAINLY EXIST. THERE SEEMS
TO BE SOME DISPUTE ABOUT HOW IDENTIFIABLE EVERYBODY REALLY IS. BUT YOU WOULD AGREE THAT YOU WOULD HAVE -- EACH PERSON WOULD HAVE TO SAY, THERE'S ME. I WAS NO. 6. I WEIGHED 190 POUNDS
OR WHATEVER, AND I'M RIGHT-HANDED, AND I WORE A (SIC) ARMBAND, AND SO THAT'S ME. THAT WAS THE CASE. AND SOMEBODY WOULD HAVE TO DETERMINE THAT YES? IN MATERIALS THAT HAVE BEEN SUBMITTED
MR. HAUSFELD:
49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNDER SEAL, FOR EXAMPLE, THERE IS AN EXTENSIVE -THE COURT: SUBMITTED UNDER SEAL. MR. HAUSFELD: NO. NO. THERE'S AN EXTENSIVE WELL, DON'T DISCLOSE WHAT'S BEEN
DESCRIPTION OF THE COMPOSITION OF THOSE AVATARS AND THE RELATION OF THOSE AVATARS, THOSE DESCRIPTIVE ELEMENTS OF THE ATHLETES IN THOSE AVATARS TO THE ACTUAL ATHLETES THAT WERE IN THE GAMES. THE COURT: HMM. OKAY.
SO IF I COULD ASK THE EA AND CLC PEOPLE, YOU HAVE TWO SEPARATE FIRMS FOR EA AND -MR. VAN NEST: MR. CURTNER: THE COURT: WE DO, YOUR HONOR. THAT'S CORRECT. MY QUESTION HERE IS, YOU'RE SORT OF
SAYING, OH, THEY DON'T HAVE ANY GOOD CLAIMS AGAINST US, WHICH ISN'T REALLY THE SAME AS SAYING A CLASS SHOULDN'T BE CERTIFIED. SO WHAT I'M WONDERING IS, SHOULDN'T YOU MAKE ALL IF I CERTIFY
YOUR ARGUMENTS AT SUMMARY JUDGMENT AND NOT NOW?
A CLASS AGAINST EVERYBODY WHO'S SUED, YOU CAN LATER SAY, WELL, OKAY, THE CLASS WAS CERTIFIED, BUT I'M -- I'M NOT LIABLE BECAUSE THERE'S NO EVIDENCE AGAINST ME, AND THEN YOUR PEOPLE GET OUT AT THAT POINT. BUT WHAT WOULD I DO IF I WERE TO BUY YOUR ARGUMENT NOW? IT'S -- THIS ISN'T A SUMMARY JUDGMENT MOTION. (OFF-THE-RECORD DISCUSSION.)
50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THEORY. MR. VAN NEST: BOB VAN NEST FOR ELECTRONIC ARTS AND
SPEAKING ON BEHALF OF CLC AS WELL, YOUR HONOR. OUR POINT IS THAT UNDER COMCAST, AND IT'S JUST THE MOST RECENT STATEMENT OF IT, YOU WOULD BE REQUIRED TO IDENTIFY SOME LEGAL THEORY OF ANTITRUST LIABILITY THAT'S CREDIBLE AGAINST THE DEFENDANTS IN ORDER TO THEN GO ON AND SAY, OKAY, THERE'S A MODEL FOR DETERMINING ON A CLASS-WIDE BASIS ANTITRUST INJURY. WHAT WE'RE SAYING IS WITH THIS NEW CHANGE IN THEORY WHERE THEY'RE ALLEGING AN OVERARCHING CONSPIRACY BASED ON THE RULES, WHICH IS WHAT MR. HAUSFELD SAID AT THE TOP OF THE HOUR, IT'S BASED ON THE BYLAWS, THE CONSTITUTION AND ALL THAT, NEITHER EA NOR CLC HAVE ANYTHING TO DO WITH THE RULES. THEM. THEY DON'T ENFORCE THEM. THEY DON'T CREATE
AND AS YOUR HONOR RECOGNIZED
EARLIER IN THE CASE AND SAID AGAIN, I THINK, JUST THIS AFTERNOON, THE MERE FACT THAT WE ARE COMMERCIAL ENTITIES TRYING TO MAXIMIZE OUR RIGHTS UNDER THE RULES IS NOT A SHERMAN ACT -- IS NOT LIABILITY UNDER THE SHERMAN ACT. AND YOU CAN'T
CERTIFY WHERE THERE ISN'T EVEN A CREDIBLE THEORY AGAINST US 'CAUSE COMCAST REQUIRES AT LEAST -- NOT THAT THEY PROVE THE THEORY -THE COURT: RIGHT, BUT I ALREADY FOUND A CREDIBLE
NOW IT'S MUDDIED BY THE FACT THAT NOW THERE'S A
DIFFERENT THEORY OUT THERE, AND I KNOW PLAINTIFFS WOULD SAY IT'S ALL ONE BIG HORIZONTAL AND VERTICAL THEORY, SORT OF AN L-SHAPED CONSPIRACY, BUT THAT MIGHT NOT BE RIGHT.
THERE MIGHT
51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BE THE VERTICAL CONSPIRACY THAT I FOUND HAD BEEN ALLEGED AGAINST YOU BEFORE AND NOW THAT MAYBE THEY'RE ALLEGING A NEW AND DIFFERENT HORIZONTAL CONSPIRACY AGAINST OTHER PEOPLE THAT MAY NOT FLY AGAINST YOU. BUT THAT DOESN'T MEAN THAT THERE
ISN'T STILL AN AT LEAST AN ALLEGED -MR. VAN NEST: THE COURT: IT'S NOT MUDDY.
-- THEORY AGAINST YOU. IT'S NOT ONE BIT MUDDY, YOUR HONOR.
MR. VAN NEST:
AND THAT'S WHY THIS CHANGE IS SO CRITICAL AS TO EA AND CLC. WHAT YOU FOUND WAS THAT BECAUSE THEY HAD ALLEGED SOMETHING MORE THAN JUST FOLLOWING THE RULES, THEY COULD STATE A CLAIM. THAT SOMETHING MORE WAS THEY PROMISED YOU THEY COULD PROVE THAT WE, EA, HAD AGREED NOT TO COMPENSATE EVEN FORMER STUDENT ATHLETES SOMETHING BEYOND THE LICENSE, BEYOND THE RULES, THAT'S OUT OF THEIR THEORY. THEIR EXPERT ADMITS THAT THERE IS
ABSOLUTELY NO EVIDENCE OF ANY EXCLUSION OF A FORMER ATHLETE. IN THE RECORD, THERE ARE 60-SOME LICENSE AGREEMENTS, SEPARATE LICENSE AGREEMENTS, WITH -- UNDER WHICH EA AGREES TO PAY FORMER STUDENT ATHLETES. THEY'RE SEPARATELY NEGOTIATED AT
SEPARATE PRICES FOR SEPARATE PEOPLE. THE COURT: WELL, RIGHT, BUT THERE'S SOME FORMER
STUDENT ATHLETES THAT ARE ALLEGEDLY IN YOUR GAMES THAT YOU DON'T PAY. MR. VAN NEST: OF THEIR CLAIM. YOUR HONOR, THAT IS NO LONGER A PART
THEIR EXPERT ADMITS --
52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: THAT'S NOT MY UNDERSTANDING. WELL, THEIR EXPERT ADMITS -- MR. NOLL
MR. VAN NEST:
ADMITS IN HIS ANALYSIS -- DR. NOLL ADMITS THAT THERE WAS NO EXCLUSION AS TO FORMER ATHLETES. CURRENT ATHLETES. THE CLASS IS NOW DEFINED AS
THE CLASS IS NOW DEFINED AS CURRENT
ATHLETES, AND DR. NOLL HAS CONCEDED -THE COURT: THE DAMAGES CLASS IS FORMER ATHLETES, AND
THE INJUNCTION CLASS IS FORMER AND CURRENT. MR. VAN NEST: FAIR ENOUGH. FAIR ENOUGH.
HIS EXPERT HAS SAID THAT AS TO FORMER ATHLETES, THERE IS NO -- THERE HAS BEEN NO EXCLUSION OF THEM FROM THE MARKET, AND THE EVIDENCE IN THE RECORD IS THE 60 AGREEMENTS THAT EA HAS ENTERED INTO -- MORE THAN THAT -- WITH INDIVIDUAL FORMER ATHLETES. THEIR CLAIM NOW IS SIMPLY THE RULES ARE THAT YOU CANNOT PAY A CURRENT ATHLETE FOR PARTICIPATING IN COLLEGE SPORTING EVENTS, NCAA-SANCTIONED EVENTS, YOU CAN'T PAY THEM. AND AS TO
THAT CONSPIRACY, WHICH THEY SAY IS THE OVERARCHING SINGLE CONSPIRACY, EA AND CLC ARE BENCH WARMERS, RIGHT? BYSTANDERS. THEY'RE
WE STAND IN THE SAME SHOES AS EVERY OTHER ALL WE ARE ARE PEOPLE WHO ARE
LICENSEE, ABC, NBC, ESPN.
TRYING TO GET THE RIGHTS THAT THEY'RE MAKING AVAILABLE UNDER THE RULES THAT EXIST. AND YOUR HONOR HAS SAID, AND QUITE RIGHTLY, THAT UNDER KENDALL AND TOSCANA AND THE 49ER CHEVROLET CASE IN THE NINTH
53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SAYING? MR. VAN NEST: IN A PREVIOUS ORDER. IN A PREVIOUS CIRCUIT, THAT SORT OF COMMERCIAL CONDUCT IS NOT AN ACTIONABLE VIOLATION, AND -THE COURT: WHAT YOU ALL SAID. MR. VAN NEST: YOUR HONOR NOTED -(SIMULTANEOUS COLLOQUY.) THE COURT: -- HELD THAT IN A PREVIOUS ORDER, YOU'RE NO -- WELL, I DISAGREE. YOUR HONOR -WELL, I DIDN'T SAY THAT. I SAID THAT'S
ORDER, WHAT YOUR HONOR SAID WAS THAT -- THAT EA IS CORRECT, THAT MANY OF THE NEW ALLEGATIONS -THE COURT: RIGHT, BUT SOME --- DO NOT SUGGEST ANYTHING MORE --
MR. VAN NEST: THE COURT: BESIDES -MR. VAN NEST: THE COURT:
-- ALLEGATION OF A FURTHER AGREEMENT
THAT'S RIGHT.
OKAY. AND SO -- AND SO THE QUESTION YOU GIVEN THIS
MR. VAN NEST:
ASKED AT THE TOP OF THE HOUR IS EXACTLY RIGHT.
CHANGE -- AND I THINK YOUR HONOR'S SUGGESTION WITH RESPECT TO AMENDING THE COMPLAINT IS PRACTICAL, AND THAT'S FINE WITH US BECAUSE, AS WE READ THE CLASS CERT PAPERS AND AS WE READ DR. NOLL'S REPORT AND HIS TESTIMONY, THEY ARE BASED -- BASING THEIR ENTIRE OVERARCHING CONSPIRACY ON THE RULES AND BYLAWS
54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 AND CONSTITUTION OF THE NCAA. AND AS TO THAT, NEITHER CLC NOR EA PLAY ANY ROLE WHATSOEVER; AND, THEREFORE, UNDER COMCAST, THERE ISN'T EVEN A HOOK TO CERTIFY A CLASS BECAUSE THEY DON'T HAVE WHAT'S CALLED AN ACCEPTED VIABLE THEORY OF ANTITRUST LIABILITY AGAINST US ANYMORE BECAUSE THEY'VE MADE A CHANGE IN THE THEORY. THE COURT: HAD NEED TO ADD? MR. BOYLE: YES. PETER BOYLE, YOUR HONOR, FOR CLC. OKAY. DO YOU HAVE ANYTHING YOU FEEL YOU
I THINK IT'S REALLY SIGNIFICANT THAT -- AND YOU -- AND YOU POINTED OUT -- PLAINTIFFS COMPLETELY IGNORE CLC IN THE BRIEFING PAPERS. THE COURT: WELL, RIGHT. BUT NOW THEY SAY THE TWO
THINGS THEY SAY YOU DID. AND ALL OF THAT ARE OUT. MR. HAUSFELD: THE COURT: MR. BOYLE: AS A GO-BETWEEN.
I GATHER JERSEYS AND BOBBLE HEADS
YES, YOUR HONOR.
SO IT'S THE TWO THINGS HE SAID. WELL -- RIGHT. SO HE -- HE SAID CLC ACTS WE DO
I'M NOT EXACTLY SURE WHAT THAT MEANS.
ACT AS A CONDUIT BETWEEN THE NCAA AND THE SCHOOLS AND EA FOR PURPOSES OF TRADEMARK LICENSING. HE SAID CLC WAS INVOLVED IN ADVOCATING FOR THE USE OF NAME AND LIKENESS RIGHTS WITHOUT COMPENSATION. COMPENSATION" PART IS A TOTAL FABRICATION. THE "WITHOUT THERE WAS A POINT
IN TIME WHERE EA, ASSISTED BY CLC, ASKED THE NCAA IF THEY

55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 WOULD BE WILLING TO CHANGE THE RULES ON NAME AND LIKENESS. NEVER HAPPENED, AND WE NEVER GOT FAR ENOUGH TO START DISCUSSING WHAT WOULD HAPPEN IN THAT WORLD. PAYMENTS? PERMISSION? ATHLETES? IF YOU LOOK AT THE EVIDENCE THEY PUT IN THE RECORD ON THAT ADVOCACY, IT DOESN'T SHOW ANYTHING THAT WOULD SUGGEST THAT ANYBODY WAS TALKING ABOUT NOT PAYING THE STUDENT ATHLETES IF THAT RULE WAS CHANGED. THE RULE WAS NEVER CHANGED. WHAT WOULD THEY LOOK LIKE? WOULD THERE BE IT
WOULD THERE BE
HOW WOULD YOU GET THE CONSENT OF THE STUDENT
NOW, IT'S -- THEY HAVE TO COME FORWARD WITH SOME PROOF. EVEN THOUGH IT'S A RULE 23 PROCEEDING, COMCAST SAYS THERE'S GOT TO BE AN EVIDENTIARY BASIS FOR FINDING THAT THE RULE 23 ELEMENTS HAVE BEEN SATISFIED. THEY COMPLETELY IGNORED US.
THEY CAN'T PROVE THAT 'CAUSE THEY HAVEN'T PUT IN ANY COMMON EVIDENCE THAT WOULD HELP SHOW THAT CLC ENGAGED (SIC) ANY FORM OF PRICE FIXING OR ANY FORM OF GROUP BOYCOTT. SO I'M WITH -- I'M WITH MR. VAN NEST. I -- I THINK IF
WE'RE GOING TO GO WITH THE NEW THEORY, THE COMPLAINT HAS TO BE CHANGED. I DON'T THINK IT CHANGES THE WORLD WHEN IT COMES TO I DON'T THINK YOU CAN CERTIFY A CLASS
CLC, PROBABLY NOT EA.
AGAINST US WHEN THEY HAVEN'T POINT (SIC) TO ANY COMMON EVIDENCE AGAINST US. THE COURT: HMM. OKAY.
SO ARE YOU PLANNING ON -- WELL, WHAT ARE YOU PLANNING ON

56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DOING ABOUT THIS? CONSPIRACY OR -(SIMULTANEOUS COLLOQUY.) THE COURT: -- A FALLBACK POSITION WITH AN L SHAPE, ARE YOU GOING TO ALLEGE AN L-SHAPED
AND IF NOT THE L SHAPE, THEN TWO SEPARATE ONES, ONE VERTICAL AND ONE HORIZONTAL? MR. HAUSFELD: I THINK, YOUR HONOR, THE ARGUMENTS
THAT WERE JUST MADE -- AND I'M IN AGREEMENT THAT CLC IS WITH EA WITH RESPECT TO THIS -- UNAMBIGUOUSLY DESCRIBES THE FACT THAT THERE WERE RULES THAT THEY CLAIM THEY WERE FOLLOWING. WELL, WHO SET THOSE RULES? THE RULES WERE SET BY THE NCAA.
BUT BY THE MEMBERSHIP OF THE NCAA, HORIZONTAL COMPETITORS THAT GOT TOGETHER TO AGREE -THE COURT: RIGHT, BUT THEY WEREN'T EA AND THEY
WEREN'T CLC, SO THAT'S THE ISSUE WE'RE TALKING ABOUT RIGHT NOW. MR. HAUSFELD: YOUR HONOR POINTED OUT IN ONE OF HER WE START
RULINGS THAT THERE WAS AN OVERARCHING CONSPIRACY. WITH -THE COURT:
I POINTED OUT THAT YOU'D ALLEGED ONE. WE START WITH THE FACT THAT THERE IS
MR. HAUSFELD:
A -- THERE IS AN AGREEMENT AMONG HORIZONTAL COMPETITORS TO FORECLOSE ACCESS -- EQUAL ACCESS TO THE MARKET TO STUDENT ATHLETES FOR N.I.L. RIGHTS AND TO SET THOSE RIGHTS TO ZERO. THEN THEY IMPOSE THAT HORIZONTAL AGREEMENT ON ALL LICENSEES,
57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 WHICH IS, AS -- AS YOUR HONOR SAID, EITHER -- IS THE L SHAPE. EA AND CLC ABIDE BY THAT. 79 -THE COURT: WELL, IF THEY IMPOSE IT AND ELC (SIC) AND IF WE LOOK AT EXHIBITS 56 AND
EA DON'T LIKE IT AND DIDN'T AGREE TO IT AND DIDN'T WANT IT AND DIDN'T ENCOURAGE IT OR CONSPIRE TO OBTAIN IT BUT MERELY SAID, OKAY, THAT'S THE RULE. I CAN'T HAVE MY STUFF IF I DON'T
FOLLOW IT, THEN HOW ARE THEY PART OF THE CONSPIRACY? MR. HAUSFELD: I WOULD BE IN AGREEMENT WITH YOUR THE -- THE
HONOR BUT FOR THE FACT THAT THEY CIRCUMVENTED IT.
THREE, IN COMBINATION AND CONNIVANCE, UNDERSTOOD THAT THE USE OF NAME, IMAGE, AND LIKENESS OF THE ATHLETES WAS A RIGHT THAT ATHLETES HAD. WANTED. THAT IS A RIGHT THAT EA TESTIFIED THAT IT
THEY WANTED TO USE MORE DIRECT NAME, IMAGE, AND BUT THERE WAS THESE RULES THAT THE
LIKENESS OF THE ATHLETES.
COMPETING SCHOOLS SET, SO THEY WORKED WITH EA, CLC, AND THE NCAA TO CIRCUMVENT THOSE RULES WHERE NCAA BASICALLY UNDERSTOOD THAT THE IMAGES AND LIKENESS AND EVEN NAMES OF THE ATHLETES WERE BEING, THE WORDS OF THE NCAA, ILLEGALLY RIGGED INTO THE GAMES BUT THEY CLOSE TO LOOK THE OTHER WAY; THAT WHEN THIS WAS PRESENTED BY EA TO THE NCAA, CLC STEPPED IN ON -- NEGOTIATING ON THE PART OF THE NCAA AND SAID, LOOK, WHY DON'T WE INCREASE THE REVENUE TO THE NCAA. EA WANTED TO MAKE A CONTRIBUTION TO A PLAYERS' FUND. AGREEMENT FOR THE KICKBACK WAS MADE BUT EXPRESSLY ON THE
THE
58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THAT? CONDITION THAT THERE WOULD BE NO ROYALTIES OR PAYMENTS TO THE PLAYERS' FUND, AND THAT'S EXHIBIT 79. THE COURT: OKAY. I WANT TO TALK ABOUT --
MR. HAUSFELD: FOLLOWING THE ORDERS.
SO THEIR CONDUCT WENT BEYOND MERELY THEY PARTICIPATED IN FINDING WAYS TO
CREATE SUBTERFUGES TO ACQUIRE AND USE THE NAMES, IMAGE, AND LIKENESS IRRESPECTIVE OF THE ASSOCIATION'S PROHIBITION. MR. VAN NEST: EXCUSE ME. THE COURT: I DON'T THINK SO. I -- I WANT TO TALK YOUR HONOR, MAY I RESPOND BRIEFLY TO
ABOUT THE INJUNCTIVE RELIEF CLASS, WHICH I GATHER IS BOTH CURRENT AND FORMER STUDENT ATHLETES. AND I'M TRYING TO FIGURE OUT WHAT IT IS THAT YOU WANT WITH -- IN THAT REGARD. ARE YOU REALLY, AS -- UNDER THE RUBRIC OF INJUNCTIVE RELIEF, ARE YOU REALLY GOING TO BE ASKING FOR -- SORT OF AN IMPOSITION OF TERMS OF LICENSE AGREEMENTS? MR. HAUSFELD: THE COURT: NO.
IN OTHER WORDS, THAT THE COURT --
(SIMULTANEOUS COLLOQUY.) THE COURT: -- SAY, HERE'S THE TERMS OF YOUR LICENSE
AGREEMENT AND WHAT DR. NOLL SAYS? MR. HAUSFELD: PROHIBITORY INJUNCTION. THE COURT: THAT WOULD SAY WHAT? IT WOULD BE -- IT WOULD BE A
59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HAUSFELD: LOOKING AT THE RESTRAINT AND SAYING
THAT -- THAT -- THAT THE NCAA COULD NOT ENFORCE OR REQUIRE OTHERS TO ABIDE BY A RESTRAINT THAT VIOLATED THE FEDERAL ANTITRUST LAWS. AND HERE, IT WOULD -- IT WOULD BE WITH
RESPECT TO THE CURRENT AND FORMER ATHLETES PART- -- BEING FORECLOSED FROM PARTICIPATING IN THE MARKET FOR THE NAME, IMAGE, AND LIKENESS. THE COURT: OKAY. SO YOU'RE NOT GOING TO BE ASKING
ME TO SAY OR YOU'RE -- WELL, TO SAY WHAT THE TERMS SHOULD BE. I WOULD JUST SAY OKAY. THE ATHLETES CAN GO TO THE COLLEGES
NOW AND ASK THEM TO GET PAID, OR THEY CAN GO TO EA AND ASK THEM TO GET PAID. AND IF THE COLLEGES SAYS, NO THANKS AND EA
SAYS, NO THANKS, THEN NOTHING WOULD HAPPEN, OR PERHAPS THEY WOULD SUE IF THEY HAD SOME SORT OF CAUSE OF ACTION. MR. HAUSFELD: AS LONG AS -- AND THOSE -- THOSE
DECISIONS WERE NOT MADE IN CONCERT AND THEY WERE MADE INDEPENDENTLY, THAT -THE COURT: WELL, YOU'RE ASKING --- THAT WOULD BE THE MARKETPLACE.
OKAY. YOUR HONOR?
MR. VAN NEST: THE COURT:
YES. THIS IS THE POINT I WANTED TO MAKE, THEY'RE NOT ASKING FOR
MR. VAN NEST:
THAT YOU DON'T NEED EITHER EA OR CLC.
ANY MONEY FROM EITHER ONE, AND THEY'RE NOT ASKING FOR ANY
60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INJUNCTIVE RELIEF. WHAT THEY'RE ASKING FOR IS A PROHIBITION AND THAT'S
ON ENFORCING THE RULES THAT THE NCAA NOW HAS.
CONSISTENT WITH WHAT THEIR EXPERT SAYS, WHICH IS THAT EA WOULD HAVE BEEN BETTER OFF WITHOUT THESE RULES. WITHOUT THE RULES,
EA'S BETTER OFF BECAUSE THEN, PRESUMABLY, THEY COULD NEGOTIATE WITH ATHLETES, WHICH THEY CAN'T DO NOW. AND, AS MR. HAUSFELD THAT'S ALL YOU
SAID, IT'S THE NCAA THAT'S IMPOSING RULES.
NEED TO KNOW TO SAY THIS CASE FALLS RIGHT WITHIN KENDALL AND THOSE OTHER CASES THAT SAY, IF ALL YOU'RE DOING IS FOLLOWING THE RULES OFFERED BY THE LICENSOR, THAT IS NOT A SHERMAN ACT VIOLATION. AND IT'S BORNE OUT BY THE FACT THEY DON'T WANT INJUNCTIVE RELIEF FROM US. THEY DON'T ALLEGE THAT WE OWE ANY MORE MONEY.
THEIR DAMAGES THEORY IS THE MONEY THAT EA ALREADY PAID WOULD HAVE BEEN SPLIT BETWEEN THE NCAA AND THE ATHLETES. THEIR
EXPERT ADMITS THE MARKET IN WHICH WE PAID FOR THE LICENSE FROM THE NCAA WAS FAIR AND COMPETITIVE, AND EA DOESN'T OWE A DIME. SO, AGAIN, ALL THIS FITS WITH THE SAME THING I (SIC) BEEN SAYING, THERE'S NO LONGER A CREDIBLE THEORY FOR DAMAGES, INJUNCTIVE RELIEF, OR LIABILITY AGAINST EITHER EA OR CLC. AND
THE ANSWER IS THEY SHOULDN'T BE CERTIFIED UNDER COMCAST 'CAUSE WITHOUT THAT THEORY, THERE'S NO HOOK FOR CERTIFICATION AT ALL. THEY MAY HAVE INDIVIDUAL CLAIMS, BUT THEY DON'T HAVE A CLAIM FOR -- AS A CLASS 'CAUSE THERE'S NO CREDIBLE ANTITRUST THEORY ON WHICH CERT COULD BE BASED.
61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HAUSFELD: YOUR HONOR, THE CLAIM FOR THE CLASS IS
FOR THE DAMAGE, AND THE DAMAGE OCCURRED BECAUSE THERE WAS (SIC) AFFIRMATIVE ACTS TAKEN TO CIRCUMVENT THOSE RULES DESPITE THE FACT THAT BOTH THE NCAA, CLC, AND EA KNEW THAT THOSE RULES EXISTED IN VIOLATION OF THE ATHLETES' RIGHTS. THE COURT: THEORY, ACTUALLY. MR. HAUSFELD: MR. VAN NEST: THE COURT: NO, YOUR HONOR. EXACTLY. WELL, THAT'S SORT OF A TOTALLY DIFFERENT
I MEAN, YOU MIGHT SUE THEM FOR THAT -THAT'S PARTICIPATING.
-- SEEMS TO ME. NO, YOUR HONOR. THAT'S PARTICIPATING
MR. HAUSFELD: IN THE CONSPIRACY.
IF YOU TAKE AFFIRMATIVE ACTS TO DO THAT
WHICH YOU UNDERSTAND YOU DO NOT HAVE THE RIGHT TO DO BECAUSE IT WOULD VIOLATE SOMEONE ELSE'S RIGHTS, YOU'RE PARTICIPATING IN A COMBINATION WITH OTHERS TO DEPRIVE VICTIMS OF THE RIGHTS THEY OTHERWISE WOULD HAVE. GOING FORWARD, IF YOUR HONOR WERE TO ENTER INTO A PROHIBITORY INJUNCTION, THAT WOULD RESOLVE WHAT EA COULD OR COULD NOT DO. THEY WOULDN'T HAVE TO CIRCUMVENT ANYTHING.
THERE WOULD BE A PROHIBITION AGAINST THE NCAA FROM ENFORCING AND/OR -- FOR -- REQUIRING OTHERS TO ABIDE BY RULES THAT THE COURT HAD -- HAD ENJOINED. THE COURT: SO LET'S TALK ABOUT --
62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. CURTNER: THE COURT: YOUR HONOR, ONE COMMENT. OH. WELL, ONE OTHER THING I WANTED TO
TALK ABOUT IN TERMS OF THE INJUNCTIVE RELIEF CLASS IS THAT YOU DON'T HAVE ANY CURRENT STUDENTS. SO DO YOU HAVE ANY CLASS
REPRESENTATIVE WHO COULD MAKE THIS INJUNCTIVE RELIEF CLAIM ON BEHALF OF CURRENT STUDENTS? MR. HAUSFELD: WE COULD, YOUR HONOR, BUT WE WOULD ASK
TO POSSIBLY APPROACH YOUR HONOR IN CHAMBERS ON THAT BECAUSE THERE'S THE ISSUE THAT WE WOULDN'T WANT ANY CURRENT ATHLETE TO BE RETALIATED AGAINST, TO LOSE HIS ELIGIBILITY JUST BY BECOMING A PLAINTIFF CHALLENGING THE INJUNCTIVE NATURE OF THE RULES. THE COURT: WELL, I WOULD SAY WHAT YOU'D HAVE TO DO,
THEN, WOULD BE TO FILE A MOTION TO FILE A COMPLAINT WITH THE NAME REDACTED AND FILE IT UNDER SEAL, AND THAT WOULD RAISE A HUGE NUMBER OF PROBLEMS. AND IT -- YOU CERTAINLY COULDN'T YOU'D HAVE TO FILE
JUST TELL ME IN CHAMBERS ALL ABOUT IT. SOME PAPERS. MR. HAUSFELD:
NO, THAT WAS THE PROCEDURE --
(SIMULTANEOUS COLLOQUY.) MR. HAUSFELD: MR. CURTNER: THE COURT: -- THAT WE WISHED TO DISCUSS WITH YOU. YOUR HONOR, THE -THE PROCEDURE WOULD BE TO MOVE FOR LEAVE
TO FILE AN AMEND COMPLAINT WITH A JOHN DOE PLAINTIFF AND HAVE THE NAME OF THE PLAINTIFF UNDER SEAL AND NOT DISCLOSE IT.
I,
63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 FRANKLY, CAN'T IMAGINE HOW THAT WOULD WORK, BUT THAT WOULD BE WHAT YOU'D HAVE TO ASK FOR. MR. CURTNER: YOUR HONOR, THERE IS NO STANDING
WITHOUT A NAMED PLAINTIFF WHO'S A MEMBER OF THAT GROUP, AS YOU CORRECTLY POINT OUT. AND, FURTHERMORE, IF A CURRENT STUDENT ATHLETE WANTS TO SUE TO ENFORCE THEIR RIGHTS, WHATEVER THEY MAY THINK THEY ARE, THEY -- THEY'RE FREE TO DO THAT. A CURRENT STUDENT ATHLETE IS
CURRENTLY PURSUING A NAME, IMAGE, LIKENESS CASE IN TEXAS, AND THE NCA IS NOT TAKING ANY ACTION AGAINST THEM. THE COURT: YEAH, BUT MAYBE YOU'D --
(SIMULTANEOUS COLLOQUY.) MR. CURTNER: THEY HAVE WHATEVER RIGHTS THEY HAVE.
WE DON'T TAKE AWAY THEIR RIGHTS. THE COURT: ORDER AGAINST RETALIATION. I DON'T KNOW
HOW ONE WOULD DEAL WITH THAT, BUT -MR. HAUSFELD: THE COURT: YES, YOUR HONOR.
-- THE MECHANICS OF IT WOULD BE TO FILE A
REQUEST TO USE A JOHN DOE PLAINTIFF NAME. MR. HAUSFELD: THE COURT: WE ANTICIPATED THAT.
SO IN TERMS OF CASE MANAGEMENT, I -- I I
DON'T NECESSARILY WANT TO CHANGE THE DATES RIGHT NOW.
DON'T -- AND I DON'T WANT TO CHANGE THE SUBSTANCE OF HOW THINGS ARE GOING TO BE. FOR EXAMPLE, I DON'T KNOW WHY I HAD AND I'D RATHER
SIMULTANEOUS DISCLOSURE OF EXPERTS, BUT I DID.
64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JUST STICK TO IT. AND THEN IN TERMS OF THE PROPOSED CHANGE TO
THE WAY THAT THE SUMMARY JUDGMENT MOTIONS WOULD BE BRIEFED, I SPECIFICALLY DON'T WANT IT THE WAY THAT -- I THINK IT WAS PLAINTIFFS PROPOSED CHANGING IT, OR MAYBE IT WAS DEFENDANTS -TO HAVE EVERYBODY ESSENTIALLY HAVE A SERIES OF SIMULTANEOUS BRIEFS. THAT'S -- THAT'S WHAT I DON'T WANT.
SO YOU COULD -- I DON'T KNOW WHEN I'M GOING TO GET THIS ORDER OUT. YOU KNOW, THERE'S A LOT OF PAPER HERE, AND IT AND IF IT GETS TO THE POINT WHERE I
MIGHT TAKE ME A WHILE.
CAN'T GET IT OUT QUICK ENOUGH FOR YOU TO DO WHAT YOU HAVE TO DO NEXT EFFICIENTLY, THEN MAYBE YOU WOULD STIPULATE TO DELAYING THE DATES, OR MAYBE YOU WOULD -- SOMEBODY WOULD FILE A MOTION TO DELAY THE DATES. AT THE MOMENT, I DON'T THINK THERE'S ANYTHING COMING UP THAT QUICKLY. MR. CURTNER: YOUR HONOR, WE HAVE MERITS EXPERT
REPORTS DUE SIMULTANEOUSLY ON JULY 18TH, AND OUR MERITS EXPERTS ARE SAYING THEY'RE ALREADY BEHIND THE EIGHT BALL ON GETTING THEIR WORK DONE IN TIME. TO DO. THERE'S STILL A LOT OF WORK
AND, FURTHERMORE, IF WE'RE GOING TO HAVE AN AMENDED
COMPLAINT, I -- I KNOW YOU DON'T QUITE BELIEVE ME, BUT WE HONESTLY DON'T KNOW WHAT THIS CASE IS ALL ABOUT. WE DON'T KNOW WHAT RULES ARE AT STAKE. THE FULL THEORY IS. WE DON'T KNOW WHAT
WE UNDERSTAND NOW THAT IT IS A FULL-ON
PAY-FOR-PLAY, AMATEURISM IS PROHIBITED BY THE ANTITRUST LAWS

65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 WEEK DAY. MR. VAN NEST: THAT'D BE GOOD. THEORY. WE THINK THAT -THE COURT: THAT'S NOT TRUE. YOUR -THAT'S THE WAY -- THAT'S WHY WE NEED A
MR. VAN NEST: MR. CURTNER: COMPLAINT THEN -MR. VAN NEST: MR. CURTNER: MR. VAN NEST:
YOUR HONOR --- IF IT'S NOT TRUE. -- COULD WE JUST GET -- IF YOU DID
NOTHING ELSE, IF YOU COULD JUST VACATE FOR 30 OR 60 DAYS THE EXPERT SIMULTANEOUS -- I UNDERSTAND YOU WANT THEM SIMULTANEOUS. THAT'S -- THAT'S WHAT WE WERE OBJECTING TO, BUT
IT WOULD BE A LOT BETTER IF YOU COULD JUST GIVE US AN EXTRA 60 DAYS ON THOSE 'CAUSE THEY ARE COMING UP PRETTY QUICK. THE COURT: DO YOU HAVE A PROBLEM WITH THAT? NO, YOUR HONOR. SO 60 DAYS WOULD BE -I'M SORRY.
MR. HAUSFELD: THE COURT: THE CLERK: MR. CURTNER: THE COURT: JULY 18TH? MR. VAN NEST: THE COURT:
OKAY.
WHAT ARE THEY CURRENTLY? JULY 18.
SIXTY DAYS FROM TODAY OR SIXTY DAYS FROM
THE LATTER. SO SEPTEMBER 18TH, IF THAT'S A
OKAY.
(SIMULTANEOUS COLLOQUY.)
66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: -- TALK ABOUT THE REST OF THE DATES. WE'LL DO IT. THANK YOU.
MR. VAN NEST: THE COURT: MR. BOYLE:
OKAY. YOUR HONOR, ONE THING ON THE SCHEDULING
ORDER, I THINK RIGHT NOW YOU HAVE THE DEFENDANTS SHARING A 25-PAGE BRIEF THAT HAS TO COVER -THE COURT: OKAY. TRY BEFORE YOU ASK FOR MORE PAGES.
TRY TO WRITE IT IN 25 PAGES. MR. VAN NEST: THAT'S OFF IN THE FUTURE. WE'LL --
WE'LL -- WE'LL DEAL WITH THAT IN THE FUTURE. THE COURT: YEAH. IF YOU NEED TO, YOU CAN DO BUT
SOMETHING LIKE WHAT YOU DID FOR THIS ROUND OF BRIEFING.
MY MAIN GOAL IS TO HAVE AS FEW PAGES AS POSSIBLE AND TO NOT HAVE THEM SAY THE SAME THING OVER AND OVER. MR. VAN NEST: THE COURT: FAIR ENOUGH.
IF YOU TRY REAL HARD AND YOU CAN'T DO IT
IN THE NUMBER OF PAGES YOU'VE GOT, THEN YOU CAN ASK ME, BUT AT LEAST TRY. MR. VAN NEST: THERE -- THERE MAY BE FEWER OF US
THERE AS WELL, YOUR HONOR. THE COURT: HE SAID HOPEFULLY. I DID.
MR. VAN NEST: THE COURT:
OKAY.
AND THEN I DO WANT YOU TO GO BACK TO JUDGE INFANTE AT SOME POINT, BECAUSE I THINK HE'S GOT THE SKILLS -- AND I KNOW
67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HONOR. THE COURT: AND THEN -- SO AT THAT POINT, PERHAPS YOU'VE BEEN TO HIM BEFORE -- THAT MIGHT ALLOW YOU TO SETTLE THE CASE. BUT PROBABLY WHAT YOU SHOULD DO IS WAIT UNTIL THE
CLASS CERT RULING HAS COME OUT. I'M NOT -- I'M GOING TO THINK ABOUT THIS A LITTLE BIT MORE, BUT I THINK THE LIKELIHOOD IS THAT I'M GOING TO ASK FOR AN AMENDED COMPLAINT THAT'S AMENDED AS LITTLE AS POSSIBLE BUT ONLY ADDS WHAT'S ABSOLUTELY NECESSARY TO RESPOND TO THE CRITICISMS. AND THEN TO PERHAPS NOT EVEN HAVE AN ANSWER,
UNLESS THERE'S SOME SPECIFIC THING THAT NEEDS TO BE DENIED, PERHAPS IN SOME NEW FACT THAT'S BEEN ALLEGED, AND NOT TO HAVE MOTIONS TO DISMISS, BUT, RATHER, TO INCORPORATE THE MOTIONS TO DISMISS INTO THE MOTIONS FOR SUMMARY JUDGMENT. SO THAT'S WHAT I'M THINKING ABOUT IN THAT REGARD JUST SO YOU CAN -MR. VAN NEST: WE'LL LOOK FORWARD TO YOUR ORDER, YOUR
WOULD BE THE TIME TO -- TO GO BACK TO JUDGE INFANTE AND SEE IF -- SEE IF YOU CAN TAKE ANOTHER SHOT AT SETTLEMENT. OKAY. ANYTHING ELSE WE NEED TO DO RIGHT NOW? MR. VAN NEST: MR. HAUSFELD: MR. BOYLE: MR. CURTNER: COURT'S INTERESTED.
I DON'T BELIEVE SO, YOUR HONOR. NO, YOUR HONOR.
NO, YOUR HONOR. WE HAVE A FEW MORE POINTS IF THE
68 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
(LAUGHTER.) THE COURT: OKAY. THANK YOU.
THAT WAS A JOKE, RIGHT? (LAUGHTER.) (PROCEEDINGS WERE CONCLUDED AT 3:46 P.M.) --O0O--
CERTIFICATE OF REPORTER
I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT FROM THE RECORD OF PROCEEDINGS IN THE ABOVE-ENTITLED MATTER. I FURTHER CERTIFY THAT I AM NEITHER COUNSEL FOR, RELATED TO, NOR EMPLOYED BY ANY OF THE PARTIES TO THE ACTION IN WHICH THIS HEARING WAS TAKEN, AND FURTHER THAT I AM NOT FINANCIALLY NOR OTHERWISE INTERESTED IN THE OUTCOME OF THE ACTION.
___________________________________ RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR SUNDAY, JUNE 23, 2013

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE CLAUDIA WILKEN, JUDGE ) ) ) ) ) ____________________________) IN RE NCAA

STUDENT-ATHLETE NAME & LIKENESS LICENSING LITIGATION

NO. C 09-01967 CW PAGES 1 - 68 OAKLAND, CALIFORNIA THURSDAY, JUNE 20, 2013

BY: FOR RIGHT OF PUBLICITY PLAINTIFFS: BY:

PROCEEDINGS REPORTED BY ELECTRONIC/MECHANICAL STENOGRAPHY; TRANSCRIPT PRODUCED BY COMPUTER-AIDED TRANSCRIPTION.

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR (510) 451-7530

FOR DEFENDANT NCAA: BY:

BY: FOR DEFENDANT ELECTRONIC ARTS: BY:

FOR DEFENDANT CLC: BY:

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR (510) 451-7530

LET'S DO "BROADCAST" AND "VIDEO GAME."

I'M NOT SURE THAT WOULD REALLY SERVE ANY

5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KNOW THAT IT WOULD HELP YOU TO HAVE AN AMENDED COMPLAINT. I

WE'VE GONE FROM FORMER STUDENT ATHLETES TO CURRENT

IT'S 332, 333, 334, 335, AND ALL THEY SAY

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR (510) 451-7530

SAID YOU HAD FIVE POINTS. A SENTENCE --

COULD YOU JUST MAKE THEM IN, LIKE,

(SIMULTANEOUS COLLOQUY.) MR. CURTNER: FURTHERMORE, THEY REPRESENTED TO YOU

TALK ABOUT IS PRACTICALITIES.

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR (510) 451-7530

WE BELIEVE THAT A MOTION TO DISMISS IS APPROPRIATE. WE DO

WE HAVE NOW A HINT

THEY STILL HAVE NOT SPECIFIED

DIFFERENT NCAA RULES. THE COURT: MR. CURTNER:

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR (510) 451-7530

I DON'T WANT TO TALK ABOUT THE MINOR PROCEDURAL

COULD -- YOU SAID YOU HAD FIVE POINTS.

MISREPRESENTATIONS TO THIS AND OTHER COURTS. THE COURT: OKAY.

WHAT DO YOU WANT TO SAY ABOUT THE -- I CAN'T REMEMBER

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR (510) 451-7530

12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: OKAY. WELL, MAYBE WE'LL DO THAT.

BASED ON BYLAWS, BASED ON THE RELEASE

AND I GUESS -- WHAT WOULD YOU SAY ABOUT

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR (510) 451-7530

AND IF THEY DON'T BY THEMSELVES AND

ALLEGED AGREEMENT ARE.

IF THERE'S SOME OTHER BYLAW THAT YOU I GUESS I MUST IF

NOW YOU'RE TALKING ABOUT LEGISLATION.

HAVE MISSED THAT BECAUSE I DON'T REMEMBER ANY LEGISLATION.

YOUR HONOR, THAT WE'RE IN.

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR (510) 451-7530

17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 OKAY. ANOTHER ISSUE THAT I THINK YOU DIDN'T ANSWER IN THE

MR. HAUSFELD: THAT WOULD BE BROADCAST.

I DON'T KNOW. MR. HAUSFELD:

I'M NOT REALLY UNDERSTANDING YOUR

WITH THE RIGHT OF PUBLICITY THEN.

HIS THEORY ESSENTIALLY. YES.

MR. HAUSFELD: THE COURT:

SO WHAT IF THAT -- I THINK HE ACTUALLY EVEN POSITS

AND WHAT THE NCA ESSENTIALLY SAYS

MR. HAUSFELD: THE COURT:

SO LET ME MOVE ON TO MY QUESTIONS --

(SIMULTANEOUS COLLOQUY.) THE COURT: -- AFTER I FINISHED MY QUESTIONS, IF YOU

LET'S GO TO CONFLICTS FIRST.

HAVE A GREATER VALUE THAN OTHERS.

24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: WELL, I THINK WHAT WOULD HAPPEN IS THE

LET'S GO BACK TO WHAT THE ANTITRUST DAMAGES ARE SEEKING.

25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HAUSFELD: THE COURT: YES, YOUR HONOR.

BUT IF THAT THEORY WERE NOT ACCEPTED,

MR. HAUSFELD: THE COURT:

HOW? AND WE HAVE THE ROSTERS. WE HAVE THE

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR (510) 451-7530

O'Bannon Certification Transcript

O'Bannon Certification Transcript