o'bannon certification transcript

7/15/2019 O'Bannon Certification Transcript

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

BEFORE THE HONORABLE CLAUDIA WILKEN, JUDGE

IN RE NCAA STUDENT-ATHLETE ) NO. C 09-01967 CW

NAME & LIKENESS LICENSING )LITIGATION ) PAGES 1 - 68

)

) OAKLAND, CALIFORNIA

____________________________) THURSDAY, JUNE 20, 2013

TRANSCRIPT OF PROCEEDINGS

APPEARANCES:

FOR PLAINTIFFS: HAUSFELD LLP

1700 K STREET NW, SUITE 650

WASHINGTON, DC 20006

BY: MICHAEL D. HAUSFELD,

SATHYA GOSSELIN, ATTORNEYS AT LAW

HAUSFELD LLP

44 MONTGOMERY STREET, SUITE 3400

SAN FRANCISCO, CALIFORNIA 94104

BY: MICHAEL P. LEHMANN,

BRUCE J. WECKER, ATTORNEYS AT LAW

HEINS MILLS & OLSON310 CLIFTON AVENUE

MINNEAPOLIS, MINNESOTA 55403

BY: RENAE D. STEINER, ATTORNEY AT LAW

FOR RIGHT OF PUBLICITY HAGENS BERMAN SOBOL SHAPIRO LLP

PLAINTIFFS: 11 WEST JEFFERSON STREET, SUITE 1000

PHOENIX, ARIZONA 85003

BY: LEONARD W. ARAGON, ATTORNEY AT LAW

(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

CERTIFIED COPY



A P P E A R A N C E S (CONT'D.)

FOR DEFENDANT NCAA: SCHIFF HARDIN LLP

350 SOUTH MAIN STREET, SUITE 210

ANN ARBOR, MICHIGAN 48104

BY: 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

BY: SUZANNE L. WAHL, ATTORNEY AT LAW

FOR DEFENDANT KEKER & VAN NEST

ELECTRONIC ARTS: 710 SANSOME STREET

SAN FRANCISCO, CALIFORNIA 94111-1704

BY: ANDREW LEVINE,

R. JAMES SLAUGHTER,

ROBERT A. VAN NEST, ATTORNEYS AT LAW

FOR DEFENDANT CLC: KILPATRICK TOWNSEND & STOCKTON LLP

607 14TH STREET NW, SUITE 900

WASHINGTON, DC 20005

BY: PETER M. BOYLE,

R. CHARLES HENN, JR., ATTORNEYS AT LAW

--O0O--




3

1 THURSDAY, JUNE 20, 2013 2:18 P.M.

2 P R O C E E D I N G S

3 THE CLERK: WE'RE CALLING C09-1967, KELLER VERSUS

4 ELECTRONIC ARTS.

5 PLEASE STEP FORWARD AND STATE YOUR APPEARANCES FOR THE

6 RECORD, PLEASE.

7 (PAUSE IN THE PROCEEDINGS.)

8 THE CLERK: PLEASE STEP FORWARD AND STATE YOUR

9 APPEARANCES FOR THE RECORD.

10 THE COURT: HAVE THEY ALL GIVEN YOU THEIR APPEARANCES

11 ALREADY?

12 THE CLERK: THEY HAVE.

13 THE COURT: OKAY. LET'S DISPENSE WITH THAT.

14 LET ME HAVE, IF I COULD, ONE PERSON FOR THE PLAINTIFF UP

15 AT THE PODIUM AND ONE PERSON FOR NCAA AT THE PODIUM WITH ONE

16 PERSON EACH FOR EA AND CLC CLOSE TO THE PODIUM THAT COULD LEAP

17 UP IF NECESSARY BUT MAY NOT BE THE FIRST PERSON TO SPEAK.

18 FIRST OF ALL, I'D LIKE YOU -- ALL OF YOU NOT TO REFER IN

19 ANY WAY TO ANY SEALED DOCUMENT OR SEALED INFORMATION. IF YOU

20 FEEL THE NEED TO DO SO, TELL ME FIRST, AND I'LL TRY TO PULL IT

21 UP ON THE SCREEN OR DO SOMETHING. I DON'T THINK YOU REALLY

22 NEED TO, BUT YOU HAD MANY PAGES OF ARGUMENTS OVER HOW YOU

23 WOULD HANDLE SEALED DOCUMENTS IN THE PAPERS. SO JUST TELL ME

24 IF YOU FEEL A STRONG NEED TO SAY SOMETHING THAT'S UNDER SEAL.

25 SO FIRST, I WANT TO TALK ABOUT WHETHER THE COMPLAINT NEEDS




4

1 TO BE AMENDED OR SOME OTHER REMEDY FOUND. THEN I'D LIKE TO

2 TALK ABOUT -- I DON'T KNOW WHAT TO CALL IT. IF I CALL IT THE

3 "HORIZONTAL CONSPIRACY" VERSUS THE "VERTICAL CONSPIRACY,"

4 SOMEONE WILL GET MAD, SO MAYBE I'LL CALLED IT THE "BROADCAST

5 CONSPIRACY" VERSUS THE "VIDEO GAME CONSPIRACY." I JUST WANT

6 TO HAVE A SHORTHAND TO REFER TO IT.

7 (OFF-THE-RECORD DISCUSSION.)

8 MR. CURTNER: I'M GREG CURTNER. I REPRESENT THE

9 NCAA. WE CALL IT "OLD" AND "NEW."

10 THE COURT: "OLD" AND "NEW."

11 MR. CURTNER: YES.

12 THE COURT: THAT DOESN'T HELP ME.

13 LET'S DO "BROADCAST" AND "VIDEO GAME." SO I WANT TO TALK

14 ABOUT BROADCAST FIRST, AND THEN WE'LL TALK ABOUT VIDEO GAME.

15 AND THEN I WANT TO TALK ABOUT INJUNCTIVE RELIEF, AND THEN

16 WE'LL TALK ABOUT CASE MANAGEMENT ISSUES.

17 SO STARTING WITH THE SORT OF DISPUTE ABOUT WHETHER THE

18 PLAINTIFFS CHANGED THEIR THEORY AND WHETHER ANYTHING NEEDS TO

19 BE DONE ABOUT THAT, THE ANSWER IS YES, PLAINTIFFS DID CHANGE

20 THEIR THEORY, TO SOME DEGREE AT LEAST. BUT I'M NOT TOO

21 TERRIBLY INCLINED TO -- WELL, SO WHAT WE COULD DO ABOUT THAT

22 WOULD BE TO GIVE THE PLAINTIFFS AN OPPORTUNITY TO FILE AN

23 AMENDED COMPLAINT. I'M NOT SURE THAT WOULD REALLY SERVE ANY

24 PURPOSE.

25 YOU ALL NOW KNOW WHAT IT IS THEY'RE CLAIMING, SO I DON'T




5

1 KNOW THAT IT WOULD HELP YOU TO HAVE AN AMENDED COMPLAINT. I

2 WOULDN'T REALLY MIND HAVING ONE, EXCEPT THAT THEN WE MIGHT BE

3 IN FOR ANOTHER WHOLE ROUND OF MOTIONS TO DISMISS, WHICH I

4 DON'T THINK WOULD BE A USEFUL EXERCISE.

5 YOU WILL HAVE AN OPPORTUNITY TO MOVE ON THE MERITS OF

6 WHATEVER CLAIMS THEY'RE MAKING NOW WHEN WE HAVE MOTIONS FOR

7 SUMMARY JUDGMENT, WHICH I ASSUME WE HAVE SCHEDULED AT SOME

8 POINT. SO WE COULD DO IT THAT WAY.

9 PERHAPS THERE'S SOME DISCOVERY THAT WASN'T DONE BECAUSE

10 THE THEORY WAS CHANGED, BUT I DON'T REALLY THINK SO. BUT IF

11 THERE WAS ANY, I SUPPOSE YOU COULD GO TO JUDGE COUSINS AND

12 EXPLAIN WHAT IT WAS AND WHY YOU NEED TO REOPEN IT.

13 WE DON'T REALLY NEED AN AMENDED COMPLAINT TO DO THAT. I

14 DON'T THINK WE NEED A NEW ROUND OF CLASS CERTIFICATION MOTION

15 BECAUSE BY THE TIME THIS WAS BRIEFED, YOU ALL KNEW WHAT IT WAS

16 THEY WERE CLAIMING, AND IT WAS MORE THAN ADEQUATELY BRIEFED ON

17 ALL THE THEORIES, SO I -- I DON'T REALLY SEE ANY NEED TO HAVE

18 THAT REBRIEFED.

19 SO WE CAN TALK ABOUT ALL OF THAT, BUT THOSE ARE MY

20 THOUGHTS.

21 I DON'T EXACTLY KNOW -- WELL, I GUESS ONE PROBLEM THAT

22 RELATES TO THAT IS THE FACT THAT IN ONE OF THE EARLIER MOTIONS

23 TO DISMISS, I SAID SOMETHING ABOUT A "VERTICAL CONSPIRACY" AND

24 NOT A "HORIZONTAL CONSPIRACY," SO PERHAPS THERE'S SOME

25 ARGUMENT THAT COULD BE MADE THAT THE PLAINTIFFS NEED TO AMEND




6

1 THE COMPLAINT TO ALLEGE MORE SUCCESSFULLY THE HORIZONTAL

2 CONSPIRACY OR MOVE FOR RECONSIDERATION TO BRING THE HORIZONTAL

3 CONSPIRACY BACK IN OR SOMETHING.

4 AND THEN WE HAVE THE QUESTION OF WHAT WE WOULD DO IF I

5 WERE TO DENY CLASS CERTIFICATION ON ANY OF THE POINTS THAT

6 PLAINTIFF WANTS CERTIFIED AND IF PLAINTIFF WOULD THEN WANT

7 TO -- I GUESS IT'S HARD TO KNOW IN ADVANCE OF DOING IT. BUT

8 WE WOULD HAVE A PROBLEM WITH WHETHER YOU WOULD WANT TO, FOR

9 EXAMPLE, TRY TO FIND NEW PLAINTIFFS AND AMEND THE COMPLAINT OR

10 WHETHER YOU WOULD GO FORWARD WITH WHATEVER YOU COULD GET, BUT

11 I GUESS YOU CAN'T REALLY ANSWER THAT QUESTION UNTIL YOU SEE

12 WHAT HAPPENS. BUT IT'S -- IT COULD BE A PROBLEM.

13 SO LET ME JUST ASK IF ANY OF YOU HAVE ANY COMMENTS ON ANY

14 OF THAT, STARTING WITH THE PLAINTIFF.

15 MR. HAUSFELD: NO.


17 MR. HAUSFELD: MICHAEL HAUSFELD FOR THE ANTITRUST

18 CLASS PLAINTIFFS.

19 MR. CURTNER: YES, YOUR HONOR. MAY I BE HEARD ON

20 THOSE POINTS ON THE AMENDMENT ISSUE AND ON THE NEW THEORY

21 ISSUE?

22 THE COURT: OKAY.

23 MR. CURTNER: I HAVE MAYBE FIVE POINTS, AND I'LL TRY

24 TO MAKE THEM VERY BRIEFLY 'CAUSE YOU'VE OBVIOUSLY THOUGHT

25 ABOUT ALL OF THIS.




7

1 IN OUR VIEW AND AS YOU RULED IN THE PLASCENCIA CASE AND AS

2 A NUMBER OF OTHER COURTS HAVE RULED, IT WOULD BE IMPROPER TO

3 CERTIFY AN UNPLED CLASS, AND THAT'S WHERE WE ARE.

4 THE COURT: WELL, THE CLASSES ARE PLED. SOME SOLVE

5 THEORIES AREN'T PLED.

6 MR. CURTNER: THE CLASSES CHANGED AS WELL THE THEORY.

7 THE COURT: THEY'RE NARROWED; THEY'RE NOT EXPANDED.

8 MR. CURTNER: NO, THEY'RE CONSIDERABLY EXPANDED, YOUR

9 HONOR. WE'VE GONE FROM FORMER STUDENT ATHLETES TO CURRENT

10 STUDENT ATHLETES.

11 THE COURT: THE COMPLAINT SAID "CURRENT."

12 MR. CURTNER: WE'VE GONE FROM --

13 THE COURT: THE PROPOSED CLASS SAID "CURRENT STUDENT

14 ATHLETES."

15 MR. CURTNER: WITH REGARD TO VIDEO GAMES. BUT NOT

16 WITH REGARD -- AND WE'VE GONE FROM A DOWNSTREAM MERCHANDISE

17 MARKET TO A LIVE BROADCAST MARKET, WHICH IS A CONSIDERABLY

18 DIFFERENT CASE. THE -- AS TO WHETHER -- WELL, LET ME MAKE

19 THIS POINT.

20 IN THE SECOND CONSOLIDATED AMENDMENT -- AMENDED COMPLAINT,

21 THERE ARE FOUR PARAGRAPHS THAT MENTION LIVE BROADCAST. ONLY 4

22 OUT OF 600 OR SO. IT'S 332, 333, 334, 335, AND ALL THEY SAY

23 IS THAT THE NCAA HAS SOME CONTRACTS THAT GENERATE A LOT OF

24 REVENUE AND THAT --

25 THE COURT: OKAY. I AGREE IT'S NOT VERY MUCH, BUT




8

1 NOW YOU KNOW. SO WHAT WILL BE SERVED BY FORCING THEM TO FILE

2 ANOTHER 500 PAGES AND PERHAPS --

3 MR. CURTNER: WELL, YOUR HONOR --

4 THE COURT: -- ANOTHER ROUND?

5 YOU HAVE TO WAIT TILL I FINISH.

6 MR. CURTNER: I'M SORRY.

7 THE COURT: -- HAVE ANOTHER ROUND OF MOTIONS TO

8 DISMISS.

9 MR. CURTNER: I -- THE LEGALITY, THE VIABILITY OF THE

10 CURRENT THEORY THAT CURRENT STUDENT ATHLETES APPEARING IN LIVE

11 BROADCAST ON T.V. CAN STATE A -- AN ANTITRUST CAUSE OF ACTION

12 AND THAT THEY SHOULD BE PAID FOR THAT, FOR THEIR NAME, IMAGE,

13 LIKENESS IN THAT REGARD IS A COMPLETELY DIFFERENT LEGAL ISSUE

14 THAN YOU HAVE RULED ON IN THE PAST.

15 IT IS A LEGAL ISSUE THAT IS FORECLOSED, IN OUR VIEW, BY

16 THE SUPREME COURT DECISION IN BOARD OF REGENTS, BY THE --

17 THE COURT: COULD YOU MAKE IT MORE OF A SUMMARY? YOU

18 SAID YOU HAD FIVE POINTS. COULD YOU JUST MAKE THEM IN, LIKE,

19 A SENTENCE --

20 (SIMULTANEOUS COLLOQUY.)

21 MR. CURTNER: FURTHERMORE, THEY REPRESENTED TO YOU

22 AND TO JUDGE COUSINS AND TO SEVERAL OTHER FEDERAL JUDGES

23 AROUND THE COUNTRY THAT THEY WERE NOT PURSUING THIS THEORY.

24 THE COURT: I KNOW THEY DID, BUT ALL I'M TRYING TO

25 TALK ABOUT IS PRACTICALITIES. I -- ONE WAY OR ANOTHER, I'M




9

1 NOT GOING TO DENY CLASS CERTIFICATION OR STRIKE IT BECAUSE OF

2 THIS NEW THEORY. MY ONLY -- AND I'M NOT GOING TO DISMISS THE

3 CASE OR ANYTHING ELSE.

4 MY ONLY QUESTION IS WHETHER IT'S USEFUL OR WORTHWHILE TO

5 SPEND THE EFFORT TO FORCING THEM TO FILE AN AMENDED COMPLAINT

6 AND HAVING A ROUND -- AND/OR HAVING A SEPARATE ROUND OF

7 MOTIONS TO DISMISS OR JUST PROCEEDING ON THE COMPLAINT AS WE

8 HAVE IT NOW, ASSUMING THAT YOU NOW KNOW WHAT THEY ARE

9 CLAIMING, HAVING ALL OF YOUR DISPOSITIVE MOTIONS MADE TOGETHER

10 WITH YOUR MOTION FOR SUMMARY JUDGMENT. THAT'S THE ONLY ISSUE.

11 MR. CURTNER: YES, YOUR HONOR. I UNDERSTAND THE

12 QUESTION. WE BELIEVE THAT A MOTION TO DISMISS IS APPROPRIATE.

13 WE -- AND THAT THERE IS DISPOSITIVE LAW ON THE POINT. WE DO

14 NOT KNOW EXACTLY WHAT THEY ARE CLAIMING. WE HAVE NOW A HINT

15 AS TO WHAT THEY'RE CLAIMING. THEY STILL HAVE NOT SPECIFIED

16 WHICH BYLAWS ARE AT ISSUE IN THIS CASE UNDER THEIR NEW THEORY.

17 WE HAD A -- WE KNEW WHAT BYLAWS WERE AT ISSUE UNDER THE

18 OLD CASE. THE NEW CASE INVOLVE (SIC) A WHOLE BUNCH OF

19 DIFFERENT NCAA RULES. THEY'RE NOT --

20 THE COURT: WHAT'S YOUR NEXT POINT?

21 MR. CURTNER: THE POINT IS THEY DON'T KNOW; WE DON'T

22 KNOW.

23 THE COURT: OKAY. SO --

24 MR. CURTNER: SO WE'RE ENTITLED TO NOTICE.

25 THE COURT: HOW MANY OF YOUR FIVE HAVE YOU GOT TO SO




10

1 FAR?

2 MR. CURTNER: YOUR HONOR, THIS IS A DENIAL OF DUE

3 PROCESS.

4 THE COURT: I'M JUST TRYING TO -- WE HAVE A LOT TO

5 TALK ABOUT. I DON'T WANT TO TALK ABOUT THE MINOR PROCEDURAL

6 STUFF FOREVER AND NOT HAVE TIME TO TALK ABOUT THE SUBSTANCE,

7 SO I'M JUST TRYING TO FIND OUT YOUR ACTUAL PRACTICAL PROBLEMS

8 WITH JUST PROCEEDING WITH THE COMPLAINT WE'VE GOT AND THE --

9 AND THE CASE DISPOSITIVE MOTION THAT WE'VE GOT VERSUS ANOTHER

10 PROCEDURAL ROUND. THAT'S ALL I'M TRYING TO GET AT, AND IF YOU

11 COULD -- YOU SAID YOU HAD FIVE POINTS. IF YOU COULD --


13 THE COURT: AND YOU REALLY NEED TO WAIT TILL I

14 FINISH. IT MAKES IT VERY HARD FOR HER.

15 MR. CURTNER: SORRY.

16 THE COURT: IF YOU COULD JUST GIVE THEM TO ME IN

17 SUMMARY FASHION, AND IF WE NEED TO TALK ABOUT THEM MORE, WE

18 WILL.

19 MR. CURTNER: NOTICE, OPPORTUNITY TO CHALLENGE,

20 DISCOVERY, SPECIFICITY, ADDS UP TO A DENIAL OF DUE PROCESS.

21 THE COURT: WHAT ABOUT SPECIFICITY?

22 MR. CURTNER: AND FURTHERMORE, THERE ARE

23 MISREPRESENTATIONS TO THIS AND OTHER COURTS.

24 THE COURT: OKAY.

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




11

1 EXACTLY WHAT IT SAID, BUT THE LESS-THAN-COMPLIMENTARY

2 REFERENCE TO A HORIZONTAL CONSPIRACY IN THE PRIOR MOTION TO

3 DISMISS ORDER?

4 YOU FEEL LIKE YOU NEED TO MOVE TO RECONSIDER THAT? YOU

5 FEEL LIKE YOU COULD FIX IT UP WITH A AMENDED COMPLAINT? WHAT

6 DO YOU WANT TO DO ABOUT THAT?

7 MR. HAUSFELD: WE CAN AS -- YOUR HONOR, AS A MATTER

8 OF PRACTICALITY, ADDRESS IT IN AN AMENDED COMPLAINT WHERE WE

9 COULD MAKE IT CLEARER THAT THE RESTRAINTS DERIVE FROM A COMMON

10 SET OF RULES THAT HORIZONTALLY WERE AGREED TO AND BOUND THE

11 MEMBER CONFERENCES AND INSTITUTIONS.

12 BUT AS YOUR HONOR HAS SAID, THAT HAS BEEN CLEARLY PLED AT

13 THIS POINT. THERE IS NO AMBIGUITY AS TO WHAT IT IS THAT IS

14 ALLEGED, AND THEY CAN BE ADDRESSED IN A SUMMARY JUDGMENT ALONG

15 WITH WHATEVER OTHER MOTIONS THAT MAY BE CONSOLIDATED AT THAT

16 TIME.

17 THE COURT: I MEAN, I COULD HAVE YOU FILE AN AMENDED

18 COMPLAINT, BUT I HATE TO HAVE A LOT MORE -- I HATE TO REOPEN

19 THE WHOLE THING TO REARGUE THINGS THAT HAVE ALREADY BEEN

20 ARGUED. SO IF YOU COULD FILE AN AMENDED COMPLAINT THAT WOULD

21 HEW AS CLOSELY AS POSSIBLE TO THE COMPLAINT THAT YOU'VE GOT

22 BUT ONLY ADD THE THINGS THAT DEFENDANTS SAY THAT THEY DIDN'T

23 KNOW ABOUT, MAYBE THAT WOULD BE OKAY.

24 DO YOU THINK YOU COULD DO THAT?

25 MR. HAUSFELD: NO PROBLEM, YOUR HONOR.




12

1 THE COURT: OKAY. WELL, MAYBE WE'LL DO THAT.

2 AND THEN I THINK WHAT I WOULD DO IN TERMS OF A MOTION TO

3 DISMISS IT WOULD BE TO CONSOLIDATE THAT WITH THE MOTION FOR

4 SUMMARY JUDGMENT ON IT AS WELL AS THE MOTION FOR JUDGMENT ON

5 THE PLEADINGS.

6 AND YOU WOULD HAVE TO DO SOMETHING ABOUT THE HORIZONTAL

7 CONSPIRACY. I MEAN, THE HORIZONTAL CONSPIRACY THAT'S NOW

8 ARGUED IS NOT THE SAME HORIZONTAL CONSPIRACY THAT I DIDN'T

9 FIND IN THE PRIOR COMPLAINT. AS YOU POINT OUT, IT IS A

10 DIFFERENT HORIZONTAL CONSPIRACY, SO THIS ONE MIGHT WELL BE

11 APPROPRIATE. AND I DON'T THINK A MOTION TO RECONSIDER IS

12 REALLY THE RIGHT THING BECAUSE IT REALLY ISN'T THE SAME

13 ALLEGATIONS ANYMORE.

14 OKAY. SO ON THE -- WHAT DEFENDANTS WOULD CALL THE NEW

15 THEORY ABOUT BROADCAST GAMES, I GUESS THIS IS A -- AN ALLEGED

16 PRICE FIXING AND GROUP BOYCOTT THEORY. YES?

17 MR. HAUSFELD: YES, YOUR HONOR.

18 THE COURT: BASED ON BYLAWS, BASED ON THE RELEASE

19 FORM, AND BASED ON A SORT OF AGREEMENT AMONGST THE DEFENDANTS

20 THAT ISN'T EXPRESSED IN THE RELEASE FORM OR THE BYLAWS; IS

21 THAT RIGHT?


23 THE COURT: AND I GUESS -- WHAT WOULD YOU SAY ABOUT

24 THE NEED FOR ANY OF YOUR CLASS MEMBERS TO HAVE SIGNED AN

25 AGREEMENT SIMILAR TO THAT -- WHAT DO YOU CALL IT -- 8.3 OR




13

1 WHATEVER IT IS?

2 I'D NOTE THAT YOUR CLASS DEFINITION DOESN'T INCLUDE PEOPLE

3 WHO SIGNED ONE. YOU DON'T SEE THAT AS A -- AS A REQUIREMENT

4 OF BEING IN ONE OF THE CLASSES, I TAKE IT?

5 MR. HAUSFELD: NO, YOUR HONOR, BECAUSE IT'S FAIRLY

6 CLEAR FROM THE EVIDENCE THAT HAS BEEN GATHERED TO DATE THAT IT

7 IS A COMBINATION IN THEIR TOTALITY OF THE BYLAWS AND OTHER

8 LEGISLATION, RULES, REGULATIONS, AND INTERPRETATIONS WHICH

9 CLEARLY REFLECT THE POLICY WHICH SEEMS TO BE UNAMBIGUOUS THAT

10 ATHLETES WHETHER THEY BE PROSPECTIVE, CURRENT, OR FORMER WILL

11 NOT RECEIVE ANY SHARE OF REVENUE FROM THE CONVEYANCE OF THEIR

12 NAME, IMAGE, AND LIKENESS.

13 THE COURT: ONE OF THE BIG QUESTIONS OR CHALLENGES

14 THAT THE DEFENDANTS MENTION A NUMBER OF TIMES THAT I'M NOT

15 SURE YOU REALLY RESPOND TO DIRECTLY IS THEY SAY, WELL, HOW DO

16 THE BYLAWS AND THE RELEASE CAUSE THE COLLEGES NOT TO HAVE TO

17 PAY THE ATHLETES FOR THEIR APPEARANCES?

18 DO YOU HAVE AN ANSWER FOR THAT?

19 MR. HAUSFELD: YES, YOUR HONOR. IF -- IF I MAY,

20 WE'VE PREPARED A SET OF -- SHORT SET OF SLIDES THAT MIGHT BE

21 INSTRUCTIVE.

22 THE COURT: I'VE SPENT SO MUCH TIME READING THE STUFF

23 YOU'VE ALREADY GIVEN ME, I DON'T WANT TO START READING MORE

24 STUFF. CAN'T YOU JUST TELL ME?

25 MR. HAUSFELD: YEAH, IT'S -- IN OUR JUDGMENT, THERE




14

1 IS A CORE TO THIS CASE, AND THE CORE TO THE CASE IS A SINGLE

2 NCAA CONSTITUTIONAL PRINCIPLE WITH A SERIES OF RULES, BYLAWS,

3 AND REGULATIONS, WHICH ARE DERIVED FROM THAT PRINCIPLE, WHICH

4 ARE AGREED TO AND BINDING ON ALL MEMBER CONFERENCES AND

5 INSTITUTIONS, AND TO WHICH ALL LICENSEES MUST ADHERE AND WHICH

6 CONTROL THE CONDUCT AND THE RIGHTS OF ALL PERSONS DEFINED AS

7 STUDENT ATHLETES, WHETHER PROSPECTIVE, CURRENT, OR FORMER, AND

8 AS THE PRESIDENT OF THE ASSOCIATION SAID, WITH NO EXCEPTION.

9 THAT'S THE FRAMEWORK.

10 THE COURT: WELL, OKAY. THAT'S A LITTLE VAGUE. I'M

11 FAMILIAR WITH THE BYLAWS WHICH I HAVE -- THE ONES THAT YOU'VE

12 COMPLAINED ABOUT -- AND I'M FAMILIAR WITH THE FORM 08-3A, SO I

13 UNDERSTAND THOSE THINGS. AND I GUESS MY QUESTION IS, HOW DO

14 THOSE THINGS CAUSE THE COLLEGES EITHER NOT TO HAVE TO OR NOT

15 TO WANT TO OR NOT TO BE ABLE TO PAY STUDENT ATHLETES FOR THEIR

16 APPEARANCES IN BROADCAST.

17 MR. HAUSFELD: BY REASON OF --

18 THE COURT: AND IF THEY DON'T BY THEMSELVES AND

19 SOMETHING ELSE ADDED TO IT DOES, YOU CAN SAY THAT, BUT --

20 MR. HAUSFELD: YES, YOUR HONOR. BY REASON OF BYLAW

21 12 AND ALL ITS SUB-BYLAWS AND OTHER LEGISLATION --

22 THE COURT: "OTHER LEGISLATION."

23 MR. HAUSFELD: THIS IS WHAT THE NCAA EXPRESSES ON ITS

24 WEBSITE OTHER RULES OR REGULATIONS AND INTERPRETATIONS THAT GO

25 ALONG WITH THOSE BYLAWS WHICH THEY EXPRESS ARE HIGHLY NUANCED




15

1 IN LANGUAGE AND IMPLEMENTATION IN ORDER TO PROVIDE THE

2 FLEXIBILITY THAT LEADS TO A SINGLE RESULT. AND THAT SINGLE

3 RESULT IS STATED, YOU KNOW, BY THE BCS CONFERENCE.

4 THE COURT: BY THE WHAT?

5 MR. HAUSFELD: BCS CONFERENCE, BOWL CHAMPIONSHIP

6 SERIES -- THAT COMPENSATION IN ANY FORM IN ANY TYPE TO ANY

7 STUDENT IS FORBIDDEN BY NCAA RULES RELATING TO AMATEURISM.

8 THAT IS THE GENERAL PENUMBRA UNDER -- UNDER WHICH THE SCHOOLS,

9 THE CONFERENCES, AND THE LICENSEES ALL ADHERE TO THIS

10 PROHIBITION.

11 THERE WAS ONE REMARK, YOUR HONOR, THAT WE QUOTED THAT I

12 THINK VIVIDLY ILLUSTRATE THE -- THE RESTRAINT WHERE THE --

13 THE COURT: OKAY. THIS -- THIS WAS THE THING THAT I

14 FOUND MOST UNHELPFUL ABOUT YOUR BRIEFS IS QUOTING REMARKS THAT

15 YOU DON'T LIKE FROM VARIOUS PEOPLE. THAT JUST DOESN'T HELP ME

16 UNDERSTAND WHAT THE LAW IS OR EVEN WHAT THE FACTS ARE.

17 THEY'RE JUST OPINIONS OF VARIOUS PEOPLE, MAYBE ADMISSIONS OF

18 VARIOUS PEOPLE, BUT THEY'RE NOT --

19 MR. HAUSFELD: THIS WAS -- THIS WAS AN ADMISSION BY

20 THE NCAA.

21 THE COURT: OKAY. WELL, DON'T TELL ME ANYTHING OF

22 THOSE THINGS THAT WERE IN THE BRIEF BECAUSE THAT JUST WASN'T

23 HELPFUL. I'M TRYING TO FIND OUT WHAT THE PARAMETERS OF THE

24 ALLEGED AGREEMENT ARE. AND I'VE GOT THE -- THE BYLAW 12, AND

25 I'VE GOT THE FORM, AND IF YOU'RE GOING TO TELL ME THERE WAS




16

1 ALSO SORT OF VERBAL AGREEMENTS AMONG EVERYONE TO SAY

2 SOMETHING, YOU COULD TELL ME THAT.

3 MR. HAUSFELD: YES.

4 THE COURT: IF THERE'S SOME OTHER BYLAW THAT YOU

5 MISSED. NOW YOU'RE TALKING ABOUT LEGISLATION. I GUESS I MUST

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

7 YOU'RE REALLY RELYING ON LEGISLATION, I GUESS YOU BETTER TELL

8 ME WHAT IT IS.

9 MR. HAUSFELD: THAT'S ONE OF THE SLIPPERY SLOPES,

10 YOUR HONOR, THAT WE'RE IN. FOR EXAMPLE, IF DEFENDANTS ASSERT

11 AS AN AFFIRMATIVE DEFENSE THAT THE BYLAWS PROHIBIT THESE

12 PAYMENTS BUT THEY NEVER STATE WHICH BYLAWS DO THAT -- ONE OF

13 THE DEFENDANTS' DECLARANTS STATE THAT THE BYLAWS THAT -- THAT

14 PAYMENT OR COMPENSATION TO ATHLETES FOR N.I.L. RIGHTS, WHETHER

15 THEY BE BROADCAST, REBROADCAST, OR VIDEO GAMES, WOULD PROBABLY

16 VIOLATE ONE OR MORE OF THE NCA (SIC) BYLAWS WITHOUT SPECIFYING

17 WHICH ONE.

18 IN -- AT ONE POINT, THE NCA LEADERSHIP UNANIMOUSLY AGREED

19 IT WOULD BE HERESY TO PERMIT ATHLETES TO HAVE EQUAL ACCESS TO

20 THE MARKETPLACE, FOR EXAMPLE, LIKE COACHES. THAT IS WHAT --

21 WHAT HAS COME TOGETHER ON THE HORIZONTAL ASPECTS. THAT

22 BECOMES THE BASIC RULE AND PROHIBITION TO WHICH ALL

23 CONFERENCES AND -- AND MEMBER INSTITUTIONS AND LICENSEES

24 ADHERE.

25 THE COURT: HMM.




17

1 OKAY. ANOTHER ISSUE THAT I THINK YOU DIDN'T ANSWER IN THE

2 BRIEFS OR YOU DID BUT IT DIDN'T SEEM TO ADDRESS THE ACTUAL

3 CLAIM THAT WAS BEING MADE WAS THE NOTION THAT THE STUDENT

4 ATHLETES COULD NOT SELL TO THEIR COLLEGES THEIR RIGHT TO BE

5 PAID FOR BEING IN A BROADCAST BECAUSE THEY DON'T HAVE SUCH A

6 RIGHT BECAUSE STATE LAW SAYS THEY DON'T. SPECIFICALLY I THINK

7 A CALIFORNIA LAW, WAS IT?

8 MR. CURTNER: THERE IS A CALIFORNIA -- AND OTHER

9 STATES HAVE A STATUTE.

10 THE COURT: SEVENTEEN DIFFERENT STATES HAD SOME SORT

11 OF STATUTES THAT I GUESS, AS A SORT OF PUBLIC INTEREST OR --

12 OR NEWSWORTHY EVENT OR SOMETHING, SAY THAT YOU -- IF YOU'RE ON

13 A NEWSCAST OR YOU'RE A PLAYER IN A GAME, YOU CAN'T STOP IT

14 FROM BEING BROADCAST JUST BECAUSE YOU'RE IN IT. SO DEFENDANTS

15 ARGUE FROM THAT, THEN, THAT THE ATHLETES COULDN'T SELL THAT

16 BECAUSE THEY DIDN'T HAVE IT.

17 MR. CURTNER: YOUR HONOR, THAT'S THE LAW -- THAT'S

18 THE LAW UNIVERSALLY.

19 THE COURT: SO WHAT'S -- WHAT'S YOUR ANSWER TO THAT?

20 MR. HAUSFELD: THERE WOULD NEVER BE A SPORTS EVENT

21 THAT WOULD BE BROADCAST. THERE IS -- THERE IS NO APPLICATION

22 OF THAT LAW THAT DISTINGUISHES BETWEEN PROFESSIONAL ATHLETES

23 AND COLLEGE ATHLETES. THERE IS NO PROFESSIONAL ATHLETIC

24 COMPETITION THAT'S BROADCAST THAT DOES NOT CONTAIN A PROVISION

25 FOR THE CONVEYANCE OF THE NAME, IMAGE, AND LICENSING RIGHTS --




18

1 LIKENESS RIGHTS OF THOSE ATHLETES.

2 THERE IS ABSOLUTELY NO JUSTIFICATION --

3 THE COURT: PERHAPS IN AN ABUNDANCE OF CAUTION, THEY

4 DO THAT. I DON'T KNOW. BUT WHAT ABOUT THOSE LAWS?

5 MR. HAUSFELD: THOSE LAWS APPLY, TO THE -- TO THE

6 EXTENT THAT THEY'RE IN ANY WAY EFFECTED, WITHIN THE

7 CONFINEMENTS OF INTRASTATE COMMERCE, NOT INTERSTATE. AND MOST

8 OF THESE GAMES, IF NOT ALL OF THESE GAMES, ARE INTERSTATE.

9 IT WOULD BE ANOMALOUS IF A CALIFORNIA SCHOOL COULD NOT --

10 COULD NOT ENTER A BROADCAST LICENSE FOR PRODUCTION OF A

11 BROADCAST OF A NATIONAL GAME BECAUSE THERE WAS A CALIFORNIA

12 LAW WHICH PROHIBITED THAT CALIFORNIA TEAM FROM PLAYING A

13 SCHOOL WHERE NO SUCH LAW EXISTED.

14 THE -- THE REACH OF THOSE LAWS, FOR WHAT -- FOR WHATEVER

15 REASON, DESPITE THE FACT THAT THEY EXIST, HAS NEVER IN ANY WAY

16 INTERFERED WITH THE ECONOMIC RIGHT OF THE ATHLETES TO CONVEY

17 THEIR NAME, IMAGE, AND LIKENESS RIGHTS. THERE -- THERE IS NO

18 CASE, YOUR HONOR, THAT WAS CITED BY THE DEFENDANTS --

19 THE COURT: BUT THE POINT IS THAT THEY CAN'T CONVEY

20 THAT RIGHT BECAUSE THEY DON'T HAVE THAT RIGHT BECAUSE STATE

21 LAW SAYS THEY DON'T HAVE SUCH A RIGHT, THAT THEY CAN'T STOP A

22 GAME FROM BEING BROADCAST BY SAYING, HEY, I'M IN THIS GAME. I

23 DON'T WANT YOU BROADCASTING, THAT THEY CAN'T DO THAT, AND

24 SINCE THEY CAN'T DO IT, THEY CAN'T SELL THEIR AGREEMENT NOT TO

25 DO IT TO THE COLLEGE.




19

1 THAT -- THAT'S, AS I UNDERSTAND IT, THE ARGUMENT.

2 MR. HAUSFELD: BUT THEN THAT WOULD BE --

3 THE COURT: I'M NOT REALLY UNDERSTANDING YOUR

4 RESPONSE TO THAT.

5 MR. HAUSFELD: THAT WOULD BE IN CONFLICT, YOUR HONOR,

6 WITH THE RIGHT OF PUBLICITY THEN. IF YOU -- IF THAT STATUTE

7 REALLY PREVAILED, THEN THERE WOULD BE NO RIGHT OF PUBLICITY.

8 IN THIS INSTANCE IN PARTICULAR, WHEN YOU'RE DEALING WITH A

9 HORIZONTAL RESTRAINT THAT'S NATIONAL IN SCOPE THAT VIOLATES

10 THE FEDERAL ANTITRUST LAWS, THE FEDERAL ANTITRUST LAWS WOULD

11 PREEMPT ANY STATE LAW WHICH -- WHICH SOUGHT, YOU KNOW, TO, IN

12 ESSENCE, IMMUNIZE CONDUCT THAT OTHERWISE WAS VIOLATIVE OF THE

13 FEDERAL LAWS. AND THERE IS NO QUESTION THAT ABSENT ANY

14 PRO-COMPETITIVE JUSTIFICATION WHICH COULD BE ASSERTED WHICH

15 WOULD BE A COMMON PREDOMINATING QUESTION, THAT THE RESTRAINTS

16 IMPOSED THROUGH THESE BYLAWS AND INVESTIGATIONS AND POLICIES,

17 THAT FORBID AND FORECLOSED THE ATHLETES FROM PARTICIPATING IN

18 THE MARKETPLACE WOULD BE VIOLATIONS -- WOULD BE IN VIOLATION

19 OF THE FEDERAL ANTITRUST LAWS.

20 THE COURT: HMM.

21 SO AS I UNDERSTAND IT, YOUR EXPERT DR. NOLL HAS A THEORY

22 THAT IF THE STUDENT ATHLETES HAD BEEN ABLE TO NEGOTIATE WITH

23 THEIR COLLEGES FOR A SHARE OF THE LICENSING FEES FOR LICENSING

24 BROADCAST OF GAMES, EITHER AT THE TIME IN TRUST OR LATER, THAT

25 WHAT WOULD HAVE HAPPENED IS THE ATHLETES WOULD HAVE NEGOTIATED




20

1 A DEAL WHEREBY ANYONE WHO WAS ON THE ROSTER FOR A GIVEN SEASON

2 WOULD BE INCLUDED AND EACH OF THEM WOULD GET AN EQUAL SHARE OF

3 SOME PERCENTAGE OF THE LICENSE REVENUES.


5 THE COURT: HIS THEORY ESSENTIALLY.


7 THE COURT: YES?

8 OKAY. SO WHAT IF THAT -- I THINK HE ACTUALLY EVEN POSITS

9 THE POSSIBILITY THAT A DIFFERENT THEORY MIGHT BE THAT IN THAT

10 SCENARIO, THE ATHLETES INSTEAD WOULD HAVE NEGOTIATED SOME DEAL

11 WITH THEIR COLLEGES THAT WOULD HAVE SAID, FOR EXAMPLE, STAR

12 QUARTERBACK GETS "X" PERCENT; BENCH WARMER GETS "Y" PERCENT,

13 MIDDLE-OF-THE-ROAD ATHLETE GETS YET A DIFFERENT PERCENT, AND

14 SO ON.

15 IF THAT IS WHAT HAD HAPPENED OR WHAT WOULD HAVE HAPPENED,

16 WOULD YOU HAVE A (SIC) ANTITRUST VIOLATION?

17 MR. HAUSFELD: ABSOLUTELY. BECAUSE RIGHT NOW, IT'S

18 CLEAR, ALL GET NOTHING. AND WHAT THE NCA ESSENTIALLY SAYS

19 THROUGH THEIR EXPERTS, IT'S BETTER AND IRRESPECTIVE OF THE

20 MARKET THAT EVERYBODY GET NOTHING AS OPPOSED TO FINDING OUT

21 WHAT THE MARKET WOULD WARRANT WITH REGARD TO EACH INDIVIDUAL

22 ATHLETE.

23 BUT AS WELL, YOUR HONOR, WE'VE POINTED OUT THAT THE NCA

24 ITSELF AT ONE TIME CONTEMPLATED FORMING A -- A FORMAL COLLEGE

25 STUDENT ATHLETE PLAYERS' ASSOCIATION IN ORDER TO PROVIDE




21

1 THAT -- THAT PRECISE TYPE OF MECHANISM AND THAT THERE ARE

2 PERSONS RIGHT NOW CONNECTED WITH THE NCAA AND THE VARIOUS

3 CONFERENCES WHO ADVOCATE THAT IT WOULD BE UNFAIR TO TREAT

4 DIFFERENT PLAYERS DIFFERENTLY AND PROVIDE DIFFERENT

5 COMPENSATION.

6 AS WELL AS THERE -- WHAT DR. NOLL ATTEMPTED TO DO WAS WORK

7 UTILIZING GENERALLY ACCEPTED ECONOMIC PRINCIPLES AND FOCUS ON,

8 AS THE COURT IN COMCAST SAID -- STATED, CORRELATE THE

9 RESTRAINT TO THE CLAIM.

10 THE RESTRAINT HERE, AS YOUR HONOR HAS SAID, IS THAT

11 ATHLETES WERE PROHIBITED FROM ENTERING THE MARKET WITH REGARD

12 TO THEIR N.I.L. RIGHTS AND/OR HAD THOSE RIGHTS REDUCED TO A

13 VALUE OF ZERO.

14 THE COURT: OKAY. I'M AFRAID I'M LOSING YOU HERE.

15 MR. HAUSFELD: THAT'S --

16 THE COURT: SO LET ME MOVE ON TO MY QUESTIONS --


18 THE COURT: -- AFTER I FINISHED MY QUESTIONS, IF YOU

19 THINK I HAVEN'T ASKED YOU ABOUT SOMETHING OR LISTENED TO YOU

20 ABOUT SOMETHING, YOU CAN TELL ME LATER.

21 BUT I JUST WANTED TO ASK THAT ABOUT NOLL IN THE FIRST

22 INSTANCE, WHETHER THAT THEORY OF HIS IS NECESSARY FOR YOU TO

23 RECOVER AT ALL. AND YOU SAY NO.

24 BUT MY QUESTION IS IT SEEMS TO ME THAT THAT THEORY IS

25 NECESSARY FOR YOU TO WIN CLASS CERTIFICATION TO COUNTER




22

1 ARGUMENTS OF LACK OF ASCERTAINABILITY AND CONFLICT BECAUSE

2 THAT THEORY OF HIS ABOUT THE EQUAL PARTS SEEMS TO ME TO BE ONE

3 THAT ANSWERS DEFENDANTS' CLAIMS AS TO THOSE TWO THINGS AND

4 THAT IF THAT THEORY WERE NOT TO PREVAIL, THERE WOULD BE A BIG

5 PROBLEM WITH BOTH OF THOSE TWO POINTS.

6 DO YOU DISAGREE?

7 MR. HAUSFELD: UNDER RULE OF REASON ANALYSIS, YOUR

8 HONOR, ALL THAT NEEDS TO BE ESTABLISHED, THERE IS A LESS

9 RESTRICTIVE ALTERNATIVE, NOT A NO RESTRICTIVE ALTERNATIVE.

10 THE COURT: ALL RIGHT. WELL, LET ME BE MORE CLEAR.

11 LET'S GO TO CONFLICTS FIRST. ONE OF THEIR CLAIMS OF

12 CONFLICTS IS THAT THERE'S A CONFLICT BECAUSE ATHLETES WITH

13 MORE ABILITY HAVE A CONFLICT WITH ATHLETES OF LESSER ABILITY

14 OR LESSER FAME OR WHATEVER THE CASE MAY BE BECAUSE THE ONES

15 WITH MORE STAND TO NEGOTIATE MORE MONEY AND THE ONES WITH LESS

16 STAND TO NEGOTIATE LESS.

17 AND YOUR ANSWER, I TAKE IT, WOULD BE THAT, NO, DR. NOLL'S

18 THEORY WOULD PREVAIL AND THUS EVERYONE WOULD GET THE SAME

19 AMOUNT AND THERE'S NO CONFLICT AMONGST THE VARIOUS ATHLETES.

20 MR. HAUSFELD: AND THAT WOULD BE A PREDOMINATING

21 COMMON QUESTION, BUT THAT WOULD BE CONSISTENT WITH THE

22 RETENTION WITHIN THE NCAA OF THEIR COMPETITIVE FAIRNESS OR

23 COMPETITIVE BALANCE CONCEPTS. AND THAT IS FOR EXAMPLE, ALL

24 STUDENT ATHLETES RECEIVE THE SAME SCHOLARSHIP DESPITE THE FACT

25 THAT ONE ATHLETE MAY STILL HAVE BETTER SKILLS OR PERFORM




23

1 BETTER THAN ANOTHER ATHLETE.

2 THIS DISTRIBUTING THE REVENUE FROM THE CONVEYANCE OF THE

3 NAME, IMAGE, AND LIKENESS OF ALL ATHLETES AT THE BEGINNING OF

4 THE SEASON, WHICH IS WHAT'S DONE, WOULD -- WOULD CORRELATE TO

5 THAT FAIRNESS PRINCIPLE BY MAINTAINING THE QUALITY OF ALL

6 ATHLETES.

7 WHEN THE CONTRACTS ARE ENTERED INTO AS WELL, YOUR HONOR,

8 THEY'RE ENTERED INTO FOR MULTIPLE YEARS. SO THEY -- THEY DO

9 NOT CALCULATE A DIFFERENT VALUE FOR ANY PARTICULAR PLAYER IN

10 TERMS OF EITHER PERFORMANCE OR PRESENCE.

11 THEY'RE PAYING FOR --

12 THE COURT: OKAY. WHAT I'M TRYING TO GET AT IS IF

13 DR. NOLL'S THEORY SOLVES YOUR CONFLICT PROBLEM WITH RESPECT TO

14 THE SHARING OF REVENUE AMONGST THE ATHLETES, MY QUESTION IS

15 THEN, IF DR. NOLL'S' THEORY WERE NOT ACCEPTED BY WHOEVER WAS

16 IN CHARGE OF ACCEPTING IT, WHETHER IT BE THIS COURT OR -- OR A

17 JURY ULTIMATELY, WOULD YOU NOT THEN HAVE THAT CONFLICT AMONGST

18 ATHLETES OF VARYING ABILITIES IN TERMS OF WHO SHOULD GET HOW

19 MANY DOLLARS?

20 MR. HAUSFELD: AS A PRACTICAL MATTER, YOUR HONOR,

21 YES. THERE MAY BE SOME ATHLETES WHO WOULD THINK THAT THEY

22 HAVE A GREATER VALUE THAN OTHERS. BUT THEN -- BUT THEN --

23 THEN THE RELIEF BEING SOUGHT WOULD NOT BE A LESS RESTRICTIVE

24 ALTERNATIVE, IT WOULD BE -- OPEN THE ENTIRETY OF THE NCA TO A

25 MARKETPLACE BECAUSE THEN NO RESTRICTION WOULD PREVAIL AT ALL.




24

1 THE COURT: WELL, I THINK WHAT WOULD HAPPEN IS THE

2 CLASS WOULD HAVE TO BE DECERTIFIED AFTER THE JURY RETURNED ITS

3 VERDICT.

4 MR. HAUSFELD: AGAIN, NO, YOUR HONOR, AND -- AND

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

6 FOR THE SALE OR CONVEYANCE OF THE N.I.L. FOR -- IN THE PAST.

7 AND SO YOU -- YOU'RE KEEPING ALL OF THE OTHER THINGS EQUAL

8 IN THE PAST. AND IF YOU KEEP ALL OTHER THINGS EQUAL, IT'S

9 WHAT IS THE VALUE IN TERMS OF WHAT THE AGGREGATE OR TOTALITY

10 OF ATHLETES WOULD HAVE EARNED AS AN ALLOCATION OF THEIR N.I.L.

11 RIGHTS AND THEN SHARING THAT EQUALLY AMONG THEM BECAUSE THEY'D

12 ALREADY MADE THEIR CHOICES. THERE IS NO NEW CHOICE TO BE

13 MADE; THERE IS NO NEW MOVEMENT TO BE MADE.

14 THE COURT: OKAY. TURNING TO ASCERTAINABILITY,

15 AGAIN, IF DR. NOLL'S'S THEORY WERE ACCEPTED BY THE JURY AND IF

16 THE JURY WERE TO FIND -- AND I SORT OF FEEL LIKE IT WOULD HAVE

17 TO BE THE JURY, ASSUMING THAT THERE WAS AT LEAST AN ARGUABLE

18 OR COLORABLE BASIS FOR DR. NOLL'S' THEORIES, WOULD HAVE TO

19 DECIDE -- WELL, IF THE JURY WERE TO DECIDE THAT HIS THEORY

20 WERE CORRECT, THAT WOULD SOLVE ANY ASCERTAINABILITY PROBLEM

21 BECAUSE ANYONE WHO WAS -- WELL, WE HAVE A FEW LITTLE PROBLEMS

22 WITH WHETHER IT'S A PRESEASON ROSTER OR POST-SEASON ROSTER,

23 BUT ASSUMING WE COULD FIGURE THAT ONE OUT, ANYBODY WHO WAS ON

24 THE ROSTER OF THE TEAM WOULD BE ABLE TO PARTICIPATE IN THE

25 LICENSE AND THEIR EQUAL PERCENTAGE OF THE LICENSING FEE.




25


2 THE COURT: BUT IF THAT THEORY WERE NOT ACCEPTED,

3 SEEMS TO ME WE WOULD HAVE AN ASCERTAINABILITY PROBLEM BECAUSE

4 WE WOULD HAVE TO KNOW WHETHER ANY PARTICULAR PERSON WHO WAS ON

5 THE ROSTER ACTUALLY PLAYED ENOUGH SUCH THAT THEY WOULD HAVE

6 GOTTEN ANY SORT OF PERCENTAGE OF THE MONEY THAT WAS PAID OVER.

7 MR. HAUSFELD: YOU WOULDN'T HAVE -- YOU WOULDN'T HAVE

8 AN ASCERTAINABILITY PROBLEM. YOU WOULD HAVE AN ALLOCATION

9 ISSUE BECAUSE THE AMOUNT OF MONEY IN THE AGGREGATE WOULDN'T

10 CHANGE. IT WOULD ONLY BE HOW THAT MONEY GETS DISTRIBUTED TO

11 THE DIFFERENT ATHLETES IF THERE WERE -- IF A JURY WERE TO

12 DETERMINE THAT -- THAT THAT IS THE ECONOMICS OF WHAT WOULD

13 HAVE HAPPENED DESPITE THE FACT THAT ALL OF DECISIONS WITH

14 REGARDING (SIC) TO THOSE ATHLETES HAD BEEN MADE.

15 THE COURT: SO WHAT IF IT WERE NOT ACCEPTED THAT

16 ANYONE ON THE ROSTER SHOULD BE INCLUDED BUT RATHER ONE NEEDED

17 TO DETERMINE WHO ACTUALLY APPEARED IN A GAME THAT WAS

18 BROADCAST? IS IT YOUR VIEW THAT THAT COULD BE ASCERTAINED?


20 THE COURT: HOW?

21 MR. HAUSFELD: AND WE HAVE THE ROSTERS. WE HAVE THE

22 BROADCASTS -- THE LIVE BROADCASTS, WE HAVE THE REBROADCASTS,

23 AND WE HAVE THE CLIPS OF THE MAJOR ENTITIES THAT USE CLIPS TO

24 REBROADCAST PARTS OF THE LIVE GAMES.

25 THE COURT: SO SOMEONE COULD GO THROUGH AND SAY, OH,




26

1 THERE'S NO. 6, NO. 93, AND NOW NO. 63 HAS GONE OUT, AND KEEP

2 TRACK OF WHO ALL PLAYED IN A GIVEN DAY?

3 MR. HAUSFELD: THAT'S DONE, FOR EXAMPLE, YOU KNOW,

4 IN -- IN MANY OTHER INDUSTRIES THAT ARE FAR MORE COMPLICATED,

5 YOU KNOW, THAN THAT WOULD BE INVOLVED WITH DIVISION I MEN'S

6 BASKETBALL AND FOOTBALL.

7 THE COURT: SO THE ANSWER IS "YES" --


9 THE COURT: -- YOU THINK THAT COULD BE ASCERTAINED BY

10 WATCHING THESE GAMES?


12 MR. CURTNER: THE EXPERTS SAY THAT CAN'T BE DONE,

13 YOUR HONOR.

14 THE COURT: OKAY. THAT'S ALL --

15 MR. CURTNER: THEIR EXPERTS.

16 THE COURT: -- ON THIS -- ON THE BROADCAST THEORIES,

17 SO IF YOU'D LIKE TO ADDRESS ANY OF THOSE POINTS THAT I ASKED

18 COUNSEL ABOUT, YOU CAN.

19 THE ONE THING THAT I WOULD ASK YOU ABOUT IS THE

20 SUBSTITUTION EFFECT PROBLEM, WHICH -- WHICH I'M HAVING A HARD

21 TIME SEEING.

22 MR. CURTNER: LET ME, IF I MAY, YOUR HONOR, START

23 WITH THE END AND SORT OF GO BACK TO THE BEGINNING. ON THIS

24 ASCERTAINABILITY ISSUE, BOTH GERBRANDT, WHO WAS THEIR T.V.

25 EXPERT, AND NOLL, WHO'S THEIR ECONOMICS EXPERT, CONCEDED THAT




27

1 THEY HAVEN'T DONE IT. IN TERMS OF WATCHING ALL OF THOSE

2 GAMES, THERE ARE THOUSANDS AND THOUSANDS AND THOUSANDS, TENS

3 OF THOUSANDS OF GAMES THAT ARE ON T.V., REGIONAL T.V. LOCAL

4 T.V., CABLE T.V., LATE NIGHT T.V., REBROADCASTS. THEY DO HAVE

5 A LISTING OF THEM, YES. BUT THERE IS NO WAY TO GO THROUGH

6 THEM ALL AND IDENTIFY WHICH PLAYERS APPEARED ON THEM. SOME OF

7 THEM MIGHT BE ON THE BENCH. SOME THEM MIGHT HAVE BEEN IN FOR

8 ONE SECOND. SOME OF THEM MIGHT HAVE -- IT CAN'T BE DONE.

9 THEY ADMIT THEY CAN'T DO IT. THEY HAVEN'T DONE IT.

10 THE COURT: WELL, THEN I SUPPOSE EACH PLAINTIFF MAY

11 HAVE TO SHOW HIMSELF ON T.V. IN ORDER TO BE PART OF IT, SO IF

12 HE COULDN'T FIND HIMSELF IN ONE OF THE GAMES, THEN HE'D BE

13 OUT.

14 MR. CURTNER: BUT YOU COULDN'T DO THAT ON A

15 CLASS-WIDE BASIS, IS THE POINT. YOU COULD DO IF A --

16 CERTAINLY INDIVIDUAL ACTIONS CAN DO THAT. AND GIVEN THE

17 AMOUNT OF MONEY THAT PROFESSOR NOLL IS POSTULATING, INDIVIDUAL

18 ACTIONS ARE COMPLETELY POSSIBLE.

19 A -- A FAMOUS RIGHT TO -- OF PUBLICITY PLAINTIFF, WHO

20 ACTUALLY DOES HAVE VALUE -- THERE ARE A HANDFUL OF THEM --

21 COULD PURSUE THIS CLAIM. THE --

22 PROFESSOR NOLL AGREES THAT OVERWHELMING NUMBER OF PLAYERS,

23 BOTH AT -- AT THE COLLEGE AND PROFESSIONAL LEVEL, HAVE NO

24 INDEPENDENT STAND-ALONE RIGHT OF PUBLICITY VALUE.

25 SO ASCERTAINABILITY IS A BIG ISSUE, AND THEY HAVE NO




28

1 SOLUTION FOR IT OTHER THAN THIS ROSTER IDEA, WHICH IS A PROXY,

2 AND IT'S AN IMPERFECT PROXY. EVERYBODY ON THE ROSTER DOES NOT

3 APPEAR ON T.V. AND SO THERE'S A DISCONNECT -- A SERIOUS

4 DISCONNECT BETWEEN THEIR LIABILITY THEORY AND THEIR ABILITY TO

5 ASCERTAIN WHO'S IN THE CLASS. AND -- THE CASE LAW, AS I READ

6 IT, SAYS YOU CAN'T DO THAT.

7 THE COURT: THERE'S ALSO TALK OF -- I FORGOT WHAT

8 WHERE I READ IT -- BUT SOME SORT OF APP. OR WEBSITE THAT --

9 THAT IDENTIFIES EVERYBODY AND THAT GOES THROUGH ON A

10 PLAY-BY-PLAY ANALYSIS OF EVERY GAME AND SAYS, THERE'S NO. 6,

11 THERE'S NO. 18, ET CETERA.

12 IS THAT NOT TRUE?

13 MR. CURTNER: THEY HAVEN'T DONE IT YET. IF IT

14 EXISTS, NOBODY HAS FOUND IT YET IN --

15 THE COURT: SOMEBODY TALKED ABOUT IT.

16 MR. CURTNER: -- IN SUFFICIENT DETAIL TO -- TO MAKE

17 IT ASCERTAINABLE, AND THEY CAN'T SOLVE THAT PROBLEM, AND THEY

18 ADMIT THEY HAVEN'T SOLVED THAT PROBLEM YET.

19 THE COURT: WELL, THEY COULD SOLVE IT -- IF

20 DR. NOLL'S THEORY IS ACCEPTED, THEN IT DOESN'T MATTER IF THEY

21 WERE ACTUALLY ON T.V. OR NOT. IT ONLY MATTERS IF THEY WERE ON

22 THE ROSTER AND POTENTIALLY ON T.V.

23 MR. CURTNER: BUT -- BUT THE UNDERLYING THEORY THAT

24 GIVES RISE TO AN ANTITRUST ACTION IN THEORY IS INJURY TO

25 SOMEONE'S BUSINESS OR PROPERTY. THAT'S WHAT SECTION 4 OF THE




29

1 CLAYTON ACT REQUIRES. AND THE BUSINESS OR PROPERTY HERE IS

2 NAME, IMAGE, OR LIKENESS, RIGHT OF PUBLICITY. AND WITHOUT AN

3 INJURY TO BUSINESS OR PROPERTY, THERE'S NO ANTITRUST ACTION.

4 THERE'S NO "THEIR" THERE (SIC) WITHOUT THE PROPERTY INTEREST.

5 AND SO LET ME SPEAK TO THAT IF I MAY BRIEFLY.

6 THE STUDENT ATHLETES' STATEMENT WHICH HAS BEEN -- WHICH

7 THAT IS INCLUDED THIS ONE FORM 08-3A -- AND I'VE GOT HANDOUTS

8 TOO, YOUR HONOR, BUT I CAN TELL YOU DON'T WANT THEM.

9 THE COURT: YEAH, I HAVE THAT.

10 MR. HAUSFELD: IT HAS BEEN AROUND SINCE 2004. IT HAS

11 NOTHING TO DO WITH NAME, IMAGE, LIKENESS, OWNERSHIP RIGHTS.

12 IT HAS NOTHING TO DO WITH BROADCAST. THE TESTIMONY -- THE

13 DECLARATIONS OF KEVIN LENNON, THE TESTIMONY OF ALL THE NCAA

14 WITNESS (SIC) IS -- IS UNCONTRADICTED ON THIS POINT.

15 THE PURPOSE OF THIS FORM -- ALL IT DOES IS PROMOTION OF

16 EVENTS. THAT'S WHAT IT SAYS UP AT THE TOP, "PROMOTION OF NCAA

17 CHAMPIONSHIP EVENTS." GENERALLY PROMOTE NCAA CHAMPIONSHIPS OR

18 OTHER NCAA EVENTS. IT IS NOT A RELEASE OF N.I.L. RIGHTS.

19 ABSOLUTELY NOT.

20 THE COURT: OKAY. SO WE'RE TALKING NOW ABOUT THE

21 MERITS OF THEIR ANTITRUST CLAIM?

22 MR. CURTNER: BUT --

23 THE COURT: I MEAN, I UNDERSTAND THAT'S YOUR

24 INTERPRETATION OF THIS RELEASE, BUT I'M JUST -- I'M JUST NOT

25 CLEAR ON WHAT POINT YOU'RE ADDRESSING --




30

1 MR. CURTNER: IT HAS NOTHING TO DO WITH THE BROADCAST

2 THEORY OF THE CASE. IT HAD SOMETHING TO DO WITH THE OLD

3 THEORY OF THE CASE. THEIR THEORY WAS THAT THIS SOMEHOW

4 CONVEYED RIGHTS. BUT WE NOW ARE AT THE POINT IN THE CASE

5 WHERE WE HAVE EVIDENCE, AND THERE'S NO EVIDENCE TO THE

6 CONTRARY.

7 ALL WE GOT IS A THEORY. WE HAVE EVIDENCE THAT SAYS THE

8 STUDENT ATHLETE AT ALL TIMES OWNS, RETAINS THEIR N.I.L.

9 RIGHTS. THERE'S ONE FOOTNOTE TO THAT. THERE ARE A FEW

10 CONFERENCES THAT HAVE STARTED GETTING RELEASES, BUT -- BUT THE

11 NCA'S GOT NOTHING TO DO WITH THAT. THIS FORM DOES NOT CONVEY

12 BROADCAST RIGHTS.

13 NOW, IT'S ALSO TRUE THAT NONE OF THE NAMED PLAINTIFFS

14 COULD TESTIFY THAT THEY SIGNED THIS. THEY DID SAY THAT THEY

15 THOUGHT THEY SIGNED A BUNCH OF FORMS, BUT THEY DIDN'T KNOW

16 ABOUT THIS. AND THIS FORM -- THE TESTIMONY, THE EVIDENCE IS

17 UNCONTRADICTED, DID NOT EXIST PRIOR TO 2004. OKAY. SO THAT'S

18 POINT ONE.

19 ON THE -- WHETHER A RIGHT OF PUBLICITY EXISTS, SOME STATES

20 RECOGNIZE IT, ABOUT TWO-THIRDS OF THEM DO. ABOUT ONE-THIRD DO

21 NOT.

22 SOME STATES, LIKE CALIFORNIA, HAVE SPECIFIC STATUTES ON

23 THE SUBJECT, AND THEY SAY VARYING DIFFERENT THINGS. AND SOME

24 SPECIFICALLY SAY THAT BROADCAST OF LIVE SPORTING EVENTS DO NOT

25 IMPLICATE RIGHT OF PUBLICITY.




31

1 AND THAT IS CONSISTENT WITH THE OVERWHELMING AND

2 UNCONTRADICTED BODY OF LAW, THE GIANFREDO CASE, THE BALTIMORE

3 ORIOLES CASE, AND THERE'S A HOST OF OTHERS, THE MOTOROLA CASE,

4 THE FLY-ON-THE-WALL CASE OUT OF THE SECOND CIRCUIT, THEY ALL

5 HOLD THAT THERE IS NO RIGHT OF PUBLICITY FOR APPEARING IN A

6 LIVE UNSCRIPTED EVENT.

7 THE COURT: NOW, IS THAT WHAT YOU DESCRIBED IN YOUR

8 BRIEF AS SAYING THAT YOU CAN'T SELL A RIGHT TO BROADCAST YOUR

9 PERFORMANCE IN A GAME TO YOUR COLLEGE BECAUSE YOU DON'T HAVE

10 SUCH A RIGHT? IS THAT --

11 MR. CURTNER: IT ACTUALLY, I THINK --

12 THE COURT: THOSE WERE THE QUESTIONS I WAS ASKING

13 YOUR OPPONENT, SO IS THAT -- THAT'S WHERE YOU'RE GETTING THAT

14 ARGUMENT IS --


16 MR. CURTNER: -- SLIGHTLY DIFFERENTLY THAN THAT, YOUR

17 HONOR. THEY DO HAVE A RIGHT, TO THE EXTENT THE RIGHT HAS ANY

18 VALUE AND EXISTS, AND IT MIGHT EXIST IN SOME STATES AND IT

19 MIGHT EXIST SOMETIME IN THE FUTURE, BUT IT DOESN'T EXIST NOW.

20 BUT NO -- BUT I WOULD PUT IT THIS WAY. NO SCHOOL OR

21 CONFERENCE OR BROADCASTER TO THIS STAGE IN THE HISTORY OF THE

22 COUNTRY HAS SEEN IT -- SEEN FIT TO BUY THOSE RIGHTS BECAUSE

23 THEY DON'T NEED TO.

24 THE -- THE OVERWHELMING --

25 THE COURT: -- THEY DON'T NEED TO BECAUSE THE NCAA




32

1 HAS A STRANGLEHOLD ON IT AND THEY KNOW THEY DON'T HAVE TO PAY

2 FOR IT --


4 THE COURT: -- NCAA.

5 MR. CURTNER: -- IS FOR RIGHTS FOR PEOPLE WHO APPEAR

6 IN LIVE SPORTING EVENTS WHO ARE NOT SUBJECT TO NCAA RULES,

7 GUESS WHAT HAPPENS? THE SAME THING.

8 COACHES APPEAR IN BROADCASTS, THEY DO NOT ASSIGN THEIR

9 N.I.L. RIGHTS. UMPIRES APPEAR IN BROADCASTS, THERE'S NO

10 ASSIGNMENT OF THEIR RIGHTS. CHEERLEADERS, PEP BANDS, ALL --

11 YOU KNOW, MASCOTS, ALL KINDS OF PEOPLE APPEAR IN LIVE SPORTING

12 EVENTS IN THIS COUNTRY, AND THERE IS A UNIFORM PRACTICE SO FAR

13 AS WE CAN TELL, AND THE TRUTH OF THE MATTER IS BEFORE WE GOT

14 INTO THIS CASE, THE NCA DIDN'T HAVE ALL THESE -- THESE

15 BROADCAST CONTRACTS.

16 THERE'S A UNIFORM PRACTICE THAT SUCH RIGHTS ARE NOT

17 TRANSFERRED AND ARE NOT SEPARATELY SOLD. WHY IS THAT?

18 BECAUSE -- IT'S BECAUSE THE CASE LAW UNIFORMLY RECOGNIZES THAT

19 IF YOU GO OUT IN PUBLIC, YOU'RE FAIR GAME TO BE PUT ON T.V.

20 IF YOU GO IN FRONT OF A CAMERA AND YOU KNOW YOU'RE IN

21 FRONT OF A CAMERA, YOU ARE CONSENTING TO BEING BROADCAST.

22 AND THE NINTH CIRCUIT DECIDED THE CASE INVOLVING SHIRLEY

23 JONES OF THE PARTRIDGE FAMILY. SHE SUED CORVIS FOR USE -- FOR

24 SELLING PICTURES OF HER ON RED CARPETS AT VARIOUS HOLLYWOOD

25 EVENTS, AND SHE LOST IN THE NINTH CIRCUIT BECAUSE THEY SAID




33

1 SHE CONSENTED. SHE KNEW SHE WAS BEING PHOTOGRAPHED, AND SHE

2 KNEW THAT THEY WERE COMMERCIAL PHOTOGRAPHERS AND THAT THEY

3 WOULD LATER GET SOLD. THE SAME THING IS TRUE.

4 NOW, THE COURTS DO GET THERE THROUGH A VARIETY OF

5 DIFFERENT RUBRICS, I CONCEDE. BUT THEY ARE ALL INDIVIDUAL.

6 AND SO SOME STATES, THERE'S NO RIGHT OF PUBLICITY. SOME

7 STATES, THERE'S A STATUTE, LIKE CALIFORNIA AND SEVERAL OTHERS.

8 SOME VIEW IT AS A MATTER OF CONSENT. SOME VIEW IT AS FAIR

9 USE. SOME VIEW IT AS EDITORIAL USE. SOME VIEW IT AS FIRST

10 AMENDMENT. SOME VIEW IT AS COPYRIGHT PREEMPTION. BUT THEY

11 ALL GET TO THE SAME RESULT, WHICH IS THERE IS NO SUCH PROPERTY

12 INTEREST.

13 SO THAT LEADS YOU TO THE ANTITRUST ISSUE. EVEN IF YOU

14 COULD ASSUME THAT SOMEBODY MIGHT BE ABLE TO CREATE SUCH A

15 PROPERTY INTEREST, SOMEWHERE. BUT THEY'RE ALL VERY INDIVIDUAL

16 QUESTIONS AND COULD NOT BE RESOLVED AT A CLASS, BUT THEN YOU

17 GET TO THE NEXT QUESTION AND THAT IS, IS THERE ANTITRUST

18 IMPACT AND STANDING THAT CAN BE PROVEN ON A CLASS-WIDE BASIS

19 WITH COMMON PROOF.

20 AND THAT GETS BACK TO THE QUESTIONS THAT I'VE BEEN TALKING

21 ABOUT. ALL OF THE EVIDENCE BEFORE YOU IS THAT NO SCHOOL OR

22 CERTAINLY NOT ALL SCHOOLS WOULD RESPOND. IF -- IF YOU BLOW UP

23 INTERCOLLEGIATE SPORTS THE WAY WE HAVE IT NOW, WHERE IT'S

24 PLAYED BY STUDENTS, WHO ARE AMATEURS, AND ALL OF A SUDDEN IT'S

25 PLAYED BY -- BY PROFESSIONALS OR SEMI-PROFESSIONALS, IS EVERY




34

1 SCHOOL THAT'S CURRENTLY PLAYING DIVISION I FOOTBALL AND

2 BASKETBALL GOING TO START PAYING PEOPLE.

3 SO THEY HAVE A THEORY, AND PROFESSOR NOLL'S SAYS HE HAS AN

4 ASSUMPTION THAT THEY WOULD, BUT IT'S NO BETTER THAN AN

5 ASSUMPTION. IT IS UNSUPPORTED. AND THE EVIDENCE --

6 THE COURT: WELL, IT'S A PREDICTION, LIKE ALL

7 PREDICTIONS OF -- IN ANTITRUST CASES, WHICH IS WE MUST LOOK

8 FOR A BUT-FOR SCENARIO, IF THE PROHIBITED CONDUCT HADN'T

9 HAPPENED, WHAT WOULD HAVE HAPPENED. SO THE SORT OF MEAT AND

10 POTATOES OF ANTITRUST IS TO KIND OF PREDICT WHAT WOULD HAVE

11 HAPPENED. AND IT SEEMS LIKE THAT'S WHAT DR. NOLL IS DOING.

12 MR. CURTNER: ABSOLUTELY. THAT IS CORRECT, YOUR

13 HONOR. BUT IT HAS TO BE BASED ON SOMETHING. AND HERE, IT'S

14 NOT. IT'S MERELY AN ASSUMPTION, WHICH HE ADMITS IS AN

15 ASSUMPTION.

16 THE COURT: WELL, IT'S BASED ON THINGS. IT'S BASED

17 ON --


19 MR. CURTNER: -- WOULD NOT HAPPEN.

20 THE COURT: I'M SORRY?

21 MR. CURTNER: ALL OF THE RECORD EVIDENCE FROM PEOPLE

22 WHO ACTUALLY ARE IN THE BUSINESS OF NEGOTIATING THESE

23 CONTRACTS, FROM PEOPLE -- FROM OVER 300 CONTRACTS THAT ARE FOR

24 THE BROADCAST OF THESE KIND OF EVENTS, WHICH WE SUBMITTED, AND

25 FROM PEOPLE WHO ARE NOT SUBJECT TO NCAA RULES, IS THAT NO SUCH




35

1 TRANSFER OF RIGHTS DOES TAKE PLACE, NO SUCH PAYMENTS FOR SUCH

2 RIGHTS DOES TAKE PLACE.

3 AND THE -- THE SCHOOLS SAY, AT LEAST MANY OF THEM, THEY

4 DON'T WANT TO PARTICIPATE IN SUCH A FORM OF SEMI-PRO OR PRO

5 SPORTS AND THAT THEY WOULD DO SOMETHING ELSE WITH THEIR

6 ATHLETIC PROGRAMS.

7 SO DR. NOLL'S ASSUMPTION, HIS PREDICTION, IS NOTHING BUT

8 PIE IN THE SKY. IT'S JUST A GUESS. IT'S NOT BASED ON

9 ANYTHING, AND WE HAVE SUBSTANTIAL EVIDENCE TO THE CONTRARY.

10 THAT UNDER -- UNDER COMCAST IS NOT ENOUGH TO CERTIFY A CLASS,

11 AND THAT'S REALLY THE BASIC ARGUMENT I WANT TO MAKE. THE IDEA

12 THAT THE ANTITRUST LAWS PREEMPT RIGHT OF PUBLICITY LAWS IS --

13 THAT'S JUST BACKWARDS. YOU HAVE TO HAVE A PROPERTY INTEREST

14 BEFORE YOU CAN EVEN START TALKING ABOUT ANTITRUST.

15 THE COURT: WELL, SO WHAT IS IT THAT THE COLLEGES ARE

16 SELLING WHEN THEY SELL A LICENSE TO BROADCAST THEIR GAME?

17 MR. CURTNER: THEY'RE SELLING -- AND THIS IS WHAT IS

18 IN THE DECLARATIONS, YOUR HONOR, AND THIS IS WHAT'S IN THE

19 CONTRACTS -- THEY ARE SELLING EXCLUSIVE ACCESS TO THEIR

20 STADIUM OR ARENA. THEY ARE SAYING TO CBS, YOU CAN COME IN

21 HERE AND BROADCAST THIS AND NOBODY ELSE CAN.

22 THAT IS WHAT THEY'RE SELLING.

23 AND THAT'S -- I DIDN'T MAKE THIS UP. THAT'S IN THE

24 RECORD. THAT IS ALL THEY'RE SELLING, AND THEY'RE ALSO GIVING

25 A LICENSE TO THEIR OWN INDIVIDUAL -- THEIR SCHOOL'S




36

1 INTELLECTUAL PROPERTY. THEY DO NOT TRANSFER THE PLAYERS, THE

2 COACHES, THE REFEREES, OR ANYBODY ELSE'S NAME, IMAGE, OR

3 LIKENESS RIGHTS, EXCEPT THERE ARE A FEW -- THERE'S A HANDFUL

4 OF CONTRACTS THAT DO, BUT THE OVERWHELMING NUMBER OF THEM DO

5 NOT.

6 AND IT'S -- IT'S JUST -- THAT'S THE WAY THE BROADCAST

7 INDUSTRY WORKS AND HAS WORKED FOR MANY, MANY YEARS. AND WHY

8 DOES IT WORK THAT WAY? BECAUSE THEY DON'T THINK THEY NEED TO

9 GET THOSE RIGHTS. BECAUSE IT'S A PUBLIC EVENT. THAT'S THE --

10 AND, YOU KNOW, IT REALLY -- AND I APOLOGIZE IF I GO ON. YOU

11 CAN -- I KNOW YOU KNOW HOW TO STOP ME. IT REALLY GOES BACK TO

12 FIRST AMENDMENT CONCEPTS. THEY DON'T ALWAYS CALL IT THAT,

13 THAT IF YOU ARE IN A PUBLIC PLACE OR A SEMI-PUBLIC PLACE, YOU

14 CAN BE WRITTEN ABOUT. SO THE SPORTS PRESS OR THE PUBLIC PRESS

15 COULD WRITE ABOUT WHAT GOES ON ON THE FIELD AND THERE'S AN

16 ABSOLUTE RIGHT TO DO THAT.

17 THEN RADIO CAME ALONG, AND THEY COULD BROADCAST WHAT WAS

18 GOING ON ON THE FIELD, AND THERE WAS A -- A RIGHT TO DO THAT.

19 AND THEN T.V. CAME ALONG, AND THERE'S A RIGHT TO DO THAT. AND

20 SO WHAT CAN THE SCHOOLS CONTROL? THEY CAN CONTROL ACCESS TO

21 THEIR STADIUM, AND SO THEY SAY YOU'RE THE ONLY BROADCASTER

22 WE'RE GOING TO ALLOW IN HERE TO DO A NATIONAL BROADCAST.

23 WE'LL ALSO ALLOW SOME OTHER BROADCASTER IN HERE TO DO A LOCAL

24 BROADCAST, AND WE'LL ALLOW SOMEBODY ELSE IN HERE TO DO AN

25 INTERNATIONAL BROADCAST, BUT THAT'S -- WHAT ARE THEY SELLING?




37

1 THEY'RE SELLING ACCESS, AND THAT IS EXACTLY WHAT THE CONTRACTS

2 SAY, AND THAT'S WHAT THE DECLARATIONS SAY.

3 THAT'S THE EVIDENCE BEFORE YOU ON THAT POINT, YOUR HONOR.

4 THE COURT: HMM.

5 OKAY. DID YOU WANT TO TALK ABOUT THE SUBSTITUTION EFFECT?

6 MR. CURTNER: YES. LET ME -- I DON'T THINK NOLL'S'

7 THEORY, EVEN IF IT WERE TO BE ACCEPTED BY A TRIER OF FACT,

8 SOLVES THE ASCERTAINABILITY OR THE CONFLICT PROBLEMS. THE

9 CONFLICT AND THE SUBSTITUTION ISSUE -- LET ME TAKE

10 SUBSTITUTION FIRST.

11 THE COURT: WELL, THERE'S TWO PARTS FOR THE CONFLICT

12 PROBLEM. ONE IS THE EQUAL SHARING CONFLICT, AND THE OTHER IS

13 SUBSTITUTION. I SEE THOSE AS TWO DIFFERENT THINGS.

14 MR. CURTNER: AND THE EQUALLY SHARING, YOU'VE

15 OBVIOUSLY GOT -- GOT THAT ONE. THE -- THE ONLY THING I WOULD

16 ADD TO THAT IS THAT WE DON'T HAVE EQUAL SHARING NOW. WE HAVE

17 PLAYERS WHO GET SCHOLARSHIPS. WE HAVE PLAYERS WHO GET PARTIAL

18 SCHOLARSHIPS, AND WE HAVE PLAYERS WHO ARE WALK-ONS. AND THE

19 WALK-ONS PLAY FOR -- FOR NOTHING. THE SCHOLARSHIP PLAYERS

20 ACTUALLY GET QUITE A LOT FOR IT, SO WE DO NOT HAVE EQUAL

21 SHARING NOW. AND PROFESSOR NOLL IGNORES THAT IN HIS

22 ASSUMPTION THAT ONE OVER N OR EQUAL SHARING WOULD -- WOULD

23 CONTINUE.

24 BUT THE -- AND THE CONFLICT IS BECAUSE HE ALSO CONCEDES --

25 AND THIS IS BASIC ECONOMICS -- THAT THERE'S A HANDFUL OF




38

1 PLAYERS WHO MIGHT HAVE VALUE, AND THERE'S THE GREAT BULK OF

2 THE PLAYERS WHO HAVE NO VALUE. AND SO THE -- THE HOLD-OUT,

3 THE STAR QUARTERBACK, THE JOHNNY MANZELLE COULD SAY, I'M ONLY

4 GOING TO PLAY IF YOU -- THE BROADCASTER GIVES ME A LOT OF

5 MONEY, RIGHT? AND EVERYBODY ELSE IS GOING TO GET NOTHING.

6 AND SO SOMEBODY SAYS, WELL, TO BE FAIR, YOU GOT TO SHARE

7 IT WITH EVERYBODY. AND HE'LL SAY, WELL, I STILL WANT FIVE

8 SHARES INSTEAD OF -- OR 50 SHARES. THERE IS NO WAY TO SOLVE

9 THAT PROBLEM, AND PROFESSOR NOLL ADMITS THERE'S NO WAY TO

10 SOLVE THAT PROBLEM, AND SO HE ASSUMES IT AWAY. HE ANSWERS HIS

11 OWN QUESTION.

12 THE COURT: WELL, HE SAYS THAT HE PREDICTS THAT

13 THAT'S HOW IT WOULD TURN OUT, AND IT SEEMS TO ME IT'S FOR THE

14 JURY TO DETERMINE WHETHER THAT IS HOW IT WOULD TURN OUT, OR

15 WHETHER YOUR GUY'S PREDICTION OF HOW IT WOULD TURN OUT IS HOW

16 IT WOULD TURN OUT.

17 AND IT SEEMS TO ME THE EFFECT OF IT IS, IF IT WERE TO GO

18 TO THE JURY AND THE JURY WERE TO SAY, NO, WE DON'T THINK WHAT

19 NOLL SAYS HAPPENS HAPPENS, I'M -- I AM WORRIED ABOUT WHAT

20 WOULD HAPPEN IN THAT EVENT. AND IT SEEMS TO ME WHAT WOULD

21 HAPPEN IS THE CLASS WOULD BE DECERTIFIED BECAUSE IT WOULD NO

22 LONGER --


24 THE COURT: -- ANY COMMON QUESTION ON DAMAGES.

25 MR. CURTNER: NOLL SAYS, WELL, WE MIGHT HAVE A UNION.




39

1 IT MIGHT BE DONE AT THE CONFERENCE LEVEL. OR I THINK, AS HE

2 SAID MOST RECENTLY, THE MOST LIKELY THING IS THAT THE NCAA

3 WOULD PASS A RULE MANDATING EQUAL SHARING.

4 WHY WOULD THE NCAA DO THAT? IT'S JUST GOT SUED FOR -- FOR

5 ALLEGEDLY VIOLATING THE ANTITRUST LAWS, AND NOW IT'S GOING TO

6 PASS A RULE THAT SAYS EQUAL SHARING? THAT'S GOING TO BE --

7 THAT'S THE NEXT LAWSUIT. WHY WOULD THEY PASS SUCH A RULE?

8 THAT'S -- THAT IS COUNTER-FACTUAL AND COUNTERINTUITIVE.

9 IN TERMS OF CONFLICT AND SUBSTITUTABILITY, PROFESSOR NOLL,

10 IN ORDER TO FIND AN ALLEGATION OR TO REACH AN OPINION AS TO

11 ANTI- -- ANTI-COMPETITIVE IMPACT, SAYS THAT THERE WOULD BE

12 WHAT THE ECONOMISTS CALL "DEAD WEIGHT LOSS," AND HE SAYS THAT

13 WOULD OCCUR BECAUSE SOME PEOPLE WOULD NOT PLAY COLLEGE SPORTS

14 WHO OTHERWISE WOULD, AND SOME PEOPLE WOULD LEAVE EARLY WHO

15 OTHERWISE WOULD STAY IN SCHOOL SO THAT THE NET EFFECT IS THAT

16 YOU GOT PEOPLE NOT IN THEIR HIGHEST AND BEST USE. THAT'S WHAT

17 HE CALLED "DEAD WEIGHT LOSS."

18 AND AS SOON AS YOU MAKE THAT ASSUMPTION OR THAT CONCLUSION

19 AS TO -- WHICH HE HAS TO DO IN ORDER TO -- TO MAKE AN

20 ANTITRUST VIOLATION APPEAR, THEN YOU HAVE SUBSTITUTABILITY AND

21 YOU HAVE CONFLICT, BECAUSE THE BUT-FOR WORLD IS GOING TO HAVE

22 DIFFERENT PEOPLE ON THE SAME TEAMS THAN THE REAL WORLD. AND

23 AS SOON AS YOU HAVE DIFFERENT PEOPLE ON THE TEAMS IN THE

24 BUT-FOR WORLD, THEN YOU HAVE SUBSTITUTION PROBLEMS, AND YOU

25 HAVE CONFLICT AMONG THOSE PEOPLE.




40

1 AND THAT'S WHY JUDGE KUNAUER DID NOT CERTIFY THE CLASS IN

2 THE WALK-ONS CASE.

3 THE COURT: WELL, SEE, THAT'S THE PART I DON'T GET,

4 THE BUT-FOR -- LET'S CALL IT THE "BUT-FOR SCENARIO." I DON'T

5 LIKE THIS "BUT-FOR WORLD" AS THOUGH IT WAS A WHOLE WORLD OUT

6 THERE, BUT THE BUT-FOR SCENARIO IT SEEMS IS DONE FOR THE

7 PURPOSE OF CALCULATING DAMAGES. IT'S NOT DONE FOR THE PURPOSE

8 OF SEEING WHO'S IN THE CLASS. SO THE PEOPLE WHO ARE IN THE

9 CLASS ARE THE PEOPLE WHO ARE IN THE CLASS, AND THEY AREN'T

10 SUBSTITUTED. THEY'RE JUST THE PEOPLE WHO ACTUALLY DID GO TO

11 COLLEGE AND PLAY ON THE TEAMS. SO NOTHING EXCHANGES.

12 THEY AREN'T LIKE -- IT'S NOT LIKE A WALK-ON CASE WHERE YOU

13 HAVE TO PROVE THAT YOU WERE ONE OF THE PEOPLE WHO HAD GOTTEN

14 THE SCHOLARSHIP. YOU DON'T HAVE TO DO THAT BECAUSE YOU WERE

15 ON THE TEAM.

16 TRUE ENOUGH, WE HAVE A SORT OF HYPOTHETICAL SCENARIO ABOUT

17 WHAT MONEY EVERYONE GETS AND IF THAT WERE HOW IT TURNED OUT,

18 THEN THERE MIGHT BE EFFECTS ON WHO WOULD BE ON COLLEGE TEAMS

19 IN THE FUTURE, BUT IT WOULDN'T AFFECT WHO IS, IN FACT,

20 CURRENTLY ON A COLLEGE TEAM OR -- OR WAS AT THE TIME --

21 MR. CURTNER: THE THEORY IS TO AWARD DAMAGES IN THE

22 BUT-FOR SCENARIO THAT WOULD HAVE EXISTED IF THESE

23 RESTRAINTS -- IF THE NCAA RULES ON AMATEURISM, IF

24 INTERCOLLEGIATE ATHLETICS WERE DIFFERENT, THEN THE DAMAGES

25 SHOULD GO TO THE PEOPLE WHO WOULD BE ON THOSE TEAMS IN THE




41

1 BUT-FOR SCENARIO BECAUSE --

2 THE COURT: NO, THE DAMAGES -- THE AMOUNT OF DAMAGES

3 ARE CALCULATED BY THE SCENARIO, BUT THEY GO TO THE PEOPLE WHO

4 WERE ACTUALLY ON THE TEAM, WHO ARE THE ACTUAL CLASS MEMBERS.

5 WE DON'T SORT OF START BRINGING IN NEW PEOPLE AT THE DAMAGES

6 PHASE.

7 MR. CURTNER: SOME PEOPLE WERE BENEFITED BY THESE

8 RULES, YOUR HONOR, BECAUSE IN THE -- THE BUT-FOR SCENARIO,

9 THEY WOULD HAVE GOTTEN NOTHING. THEY WOULD -- THEY MIGHT HAVE

10 BEEN HOME. THEY MIGHT HAVE BEEN OUT OF SCHOOL. THEY -- THEY

11 MIGHT HAVE GOTTEN ZERO, BUT SOME OF THEM WERE BENEFITED. AND

12 THEY DON'T -- IF THEY WERE BENEFITED, THEY'RE NOT IN THE

13 CLASS.

14 SO YOU -- THE CLASS HAS TO BE MODELED ON THE BUT-FOR

15 SCENARIO. YOU CAN'T JUST USE THE BUT-FOR SCENARIO TO

16 DETERMINE DAMAGES. THE BUT-FOR SCENARIO GOES TO LIABILITY

17 GOES TO CLASS CONSTITUTION, AND GOES TO DAMAGES. IT'S NOT

18 JUST A DAMAGES CONCEPT.

19 THE COURT: HMM. REALLY?

20 MR. CURTNER: IT'S A LIABILITY CONCEPT.

21 AND -- AND SO HE DOESN'T SOLVE IT, AND -- AND FURTHERMORE,

22 NOLL FURTHER ADMITS THAT IF YOU CHANGE THESE RULES, THAT SOME

23 COLLEGES WOULD LEAVE THE MARKET. SOME WOULD GO TO AN IVY

24 LEAGUE MODEL WHERE THEY WOULDN'T PAY ANYTHING AND THEY

25 WOULDN'T GRANT SCHOLARSHIPS. SOME MIGHT GO OFF AND FORM A NEW




42

1 ASSOCIATION OUTSIDE OF THE NCAA WHERE THEY COULD CONTINUE TO

2 HAVE AMATEURISM. HE ADMITS THAT THAT'S FINE AS LONG AS IT WAS

3 DONE ON A CONFERENCE-BY-CONFERENCE BASIS. SO WE DON'T KNOW

4 WHAT THE -- THE BUT-FOR WORLD WOULD LOOK LIKE.

5 THIS IS DIFFERENT, YOUR HONOR, THAN YOUR ORDINARY PRICE

6 FIX, BECAUSE IN THE ORDINARY CASE OF A PRICE FIX, YOU HAVE

7 TRANSACTIONS THAT ACTUALLY OCCURRED AT A PARTICULAR PRICE AND

8 THAT WAS -- THAT WAS RIGGED SOMEHOW. AND SO YOU THEN CAN HAVE

9 AN EXPERT SAY, IN MY OPINION, IF THEY HADN'T BEEN RIGGING

10 PRICES, THE PRICES WOULD HAVE BEEN "X" PERCENT LOWER.

11 THE COURT: WELL, THAT'S WHAT HE SAYS. HE SAYS --


13 MR. CURTNER: -- NEVER OCCURRED.

14 THE COURT: RIGHT. HE SAYS THEY PAID ZERO AND HAD

15 THINGS BEEN DIFFERENT, THEY WOULD HAVE PAID "X."

16 BUT, ANYWAY, LET'S MOVE ON. IF YOU CAN -- DO YOU HAVE

17 ANYTHING YOU FEEL COMPELLED TO SAY IN RESPONSE TO WHAT COUNSEL

18 HAS SAID, BECAUSE I WANT TO GO ON AND TALK ABOUT THE VIDEO

19 GAMES.

20 MR. HAUSFELD: IF I CAN SHORTLY, YOUR HONOR, WITH --

21 WITH REGARD TO THE COMMONALITY, SOME OF THE THINGS THAT WERE

22 JUST ACKNOWLEDGED, YOU KNOW, BY COUNSEL FOR THE NCAA.

23 THE FIRST IS WE -- WE'RE IN AGREEMENT. NO PAYMENTS ARE

24 MADE TO ANY ATHLETE AT ANY TIME IN ANY FORM FOR THE CONVEYANCE

25 OF N.I.L. RIGHTS. THAT IS A PREDOMINATING COMMON ISSUE. THE




43

1 ISSUE IS WHY. THAT IS A PREDOMINATING COMMON ISSUE. THEY

2 ALLEGE AMATEURISM. THEY ALLEGE, YOU KNOW, SOME BROAD

3 REFERENCE TO BYLAWS, BUT THAT IS A PREDOMINATING COMMON ISSUE

4 ALL DERIVED FROM THE SINGLE FACT WHICH COUNSEL JUST ELOQUENTLY

5 STATED, THAT NO PAYMENTS ARE MADE TO ANY ATHLETE AT ANY TIME.

6 THE COURT: FOR BROADCAST.

7 MR. HAUSFELD: FOR BROADCAST.

8 THE COURT: THEY PAY FOR BOBBLE HEADS.

9 MR. HAUSFELD: ACTUALLY, THEY DON'T -- AFTER

10 ELIGIBILITY, THE ATHLETE CAN GO OUT AND ENDORSE A BOBBLE HEAD

11 OR WHATEVER --

12 THE COURT: OKAY.

13 MR. HAUSFELD: -- BUT THE ISSUE IS CLEAR. NO

14 ATHLETE, NO PAYMENT DURING THE PERIOD OF ELIGIBILITY.

15 WHY? THAT'S PREDOMINANTLY COMMON. WHAT IS THE DAMAGE

16 THAT RESULTS FROM THAT? IT'S THE DIFFERENCE BETWEEN ZERO AND

17 WHAT THE ATHLETES IN TOTALITY WOULD HAVE CREATED AS A POOL FOR

18 ATHLETES. AND THEN THERE'S THE -- THE THIRD STEP, THE

19 ALLOCATION OF THAT. BUT CLEARLY IN THE BUT-FOR WORLD, THE

20 FIRST STEP IS THERE IS A CONTRACT WHICH CONVEYS THE

21 INTELLECTUAL PROPERTY OF THE ASSOCIATION, THE CONFERENCE, THE

22 SCHOOL, THE SCHOOL COLORS, AND THE ATHLETE'S NAME, IMAGE, AND

23 LIKENESS.

24 MR. CURTNER SAYS THAT IS THE WAY THE BROADCAST INDUSTRY

25 WORKS. THAT IS A PREDOMINATING COMMON QUESTION. HOW DOES THE




44

1 BROADCAST INDUSTRY WORK? HOW DOES IT RELATE TO OTHER SPORTING

2 EVENTS? DO PROFESSIONALS NOT CONVEY THEIR RIGHTS? DO NOT THE

3 BROADCAST RIGHTS FOR PROFESSIONAL SPORTS EVENTS OR

4 NON-COLLEGIATE SPORTING EVENTS INCLUDE THE CONVEYANCE OF NAME,

5 IMAGE, AND LIKENESS FOR EVERY ATHLETE ON THE ROSTER OF THOSE

6 TEAMS THAT ARE PLAYING? THAT IS A PREDOMINATING COMMON

7 QUESTION.

8 IF IT IS, WHAT'S THE DIFFERENCE BETWEEN THE CONVEYANCE OF

9 THOSE RIGHTS AND THE PRECLUSION OR THE NON-CONVEYANCE OF THE

10 RIGHTS OF THE -- THE COLLEGE ATHLETES? THOSE ARE THE

11 PREDOMINATING COMMON QUESTIONS.

12 WHAT -- IS ALSO LOST, YOU KNOW, IN -- IN THE CONFUSION OF

13 WHETHER THERE, YOU KNOW, IS A RELEASE REQUIRED OR, AS ONE OF

14 THE -- THE DEFENDANTS' EXPERTS SAID -- AND THIS IS -- THIS IS

15 PART OF THE PERPLEXING NATURE OF THE CONSTANTLY SHIFTING

16 POSITION OF NCAA -- WHERE THEIR EXPERT SAID, AN ATHLETE

17 CURRENTLY ENROLLED IN A COLLEGE THAT HAS -- IS REQUIRED -- IS

18 REQUIRED TO SIGN A CONTRACT AND HE LOSES -- THAT CONTRACT

19 FORBIDS HIM, BASICALLY APPROPRIATES OR GIVES THE UNIVERSITY OR

20 COLLEGE THE RIGHT TO HIS NAMES (SIC), LIKENESS, AND IMAGE. HE

21 FORFEITS THE RIGHT TO THAT, AND THAT'S -- CONTRACTS ARE COMMON

22 AMONG INDIVIDUALS AND THESE DIVISION I CONFERENCES.

23 HOW DO WE SQUARE THAT WITH WHAT THE COURT WAS JUST TOLD?

24 THAT IS A PREDOMINATING COMMON QUESTION. DO THEY TAKE THESE

25 RIGHTS? ARE THESE RIGHTS FORFEITED? ARE THEY ACQUIRED OR, AS




45

1 MR. CURTAIN SAID, DO THE ATHLETES RETAIN THOSE RIGHTS BUT THEY

2 JUST CAN'T EXERCISE THEM? WELL, IF THEY CAN'T, THEN WHEN

3 THEY'RE FINISHED WITH THEIR ELIGIBILITY, THEY SHOULD BE

4 ENTITLED TO RECEIVE THE FRUITS AND BENEFITS OF THOSE RIGHTS

5 THAT WERE IN ESSENCE HELD IN ABEYANCE OR TRUST FOR THEM DURING

6 THEIR ELIGIBILITY.

7 THE COURT: OKAY. LET'S GO ON AND TALK ABOUT VIDEO

8 GAMES. DO YOU HAVE CLAIMS AGAINST CLC? AND IF SO, WHAT?


10 AND THIS --

11 THE COURT: JUST, LIKE, A SENTENCE. JUST EXPLAIN TO

12 ME WHAT YOUR COMPLAINT -- 'CAUSE YOU DON'T TALK ABOUT CLC MUCH

13 IN YOUR PAPERS, SO IF YOU COULD JUST TELL ME A SENTENCE OF

14 WHAT YOUR DISPUTE WITH CLC IS.

15 MR. HAUSFELD: CLC, FOR EXAMPLE, ACTED AS A

16 GO-BETWEEN FOR THE NCAA AND VIDEO GAME MANUFACTURERS.

17 THE COURT: OKAY. THAT'S ONE. ANYTHING ELSE?

18 MR. HAUSFELD: THEY WERE THE ONES WHO WERE ADVOCATING

19 WAIVER AND -- AND/OR EXPANSION OF THE RULES AS PRESENTLY

20 WRITTEN TO PERMIT THE -- THE LIKENESS BEING USED WITHOUT

21 PAYMENT TO THE ATHLETES.

22 THE COURT: OKAY. IS THAT IT?


24 THE COURT: OKAY. AND WHAT ABOUT EA? DO YOU HAVE

25 ANYTHING FOR THEM BESIDES THE VIDEO GAMES? IN OTHER WORDS, MY




46

1 REAL QUESTION IS, ARE YOU COMPLAINING THAT THEY'RE USING

2 BROADCAST FOOTAGE?

3 MR. HAUSFELD: THEY'RE INTEGRATING THE BROADCAST

4 FOOTAGE, YOUR HONOR. THEY INTEGRATE --

5 THE COURT: -- COMPLAINING THAT THEY'RE USING

6 BROADCAST FOOTAGE?

7 MR. HAUSFELD: THEY -- THEY UTILIZE BROADCAST --


9 THE COURT: -- THE QUESTION IS, ARE YOU COMPLAINING

10 THAT THEY ARE USING BROADCAST FOOTAGE? I UNDERSTAND YOU

11 SAY --


13 THE COURT: -- THEY ARE, BUT IS THAT PART OF YOUR

14 ANTITRUST COMPLAINT AGAINST THEM?

15 MR. HAUSFELD: NO, THE ANTITRUST --

16 THE COURT: OKAY. GOOD.

17 MR. HAUSFELD: -- COMPLAINT AGAINST THEM IS THE FACT

18 THAT THEY DELIBERATELY DO NOT PAY THE ATHLETES FOR THEIR NAME,

19 IMAGE, AND LIKENESS.

20 THE COURT: FOR THEIR USE IN VIDEO GAMES?


22 THE COURT: YEAH. OKAY.

23 SO THE DEFENDANTS SAY REPEATEDLY THAT YOU CAN'T SUE

24 SOMEBODY FOR FOLLOWING THE RULES OF A BUSINESS PARTNER OR

25 SOMEBODY ELSE. I UNDERSTAND YOU CAN SUE THEM FOR ENTERING




47

1 INTO A CONSPIRATORIAL AGREEMENT IN RESTRAINT OF TRADE, BUT IF

2 YOU'RE DEALING WITH SOMEBODY AND THEY'VE GOT CERTAIN RULES

3 THAT YOU HAVE TO FOLLOW TO -- IN ORDER TO DEAL WITH THEM AND

4 YOU FOLLOW THEM, WITHOUT AGREEING TO RESTRAIN TRADE OR

5 ANYTHING ELSE, YOU JUST SAY, WELL, I WANT TO DEAL WITH THESE

6 PEOPLE AND HERE'S THEIR RULES, I'M GOING TO HAVE TO DO WHAT

7 THEY SAY, HOW CAN THAT BE ILLEGAL? HOW -- HOW CAN THAT BE AN

8 ANTITRUST VIOLATION?

9 MR. HAUSFELD: HERE'S THE --

10 THE COURT: THAT'S THEIR ARGUMENT, I THINK.

11 MR. HAUSFELD: HERE'S THE ANOMALY. WE HAVE EA SAYING

12 WE'RE MERELY FOLLOWING THE RULES. WE HAVE MR. CURTNER AND THE

13 NCA SAYING THERE ARE NO RULES. WHICH IS IT?


15 THE COURT: LET'S POSIT THAT THERE ARE SOME.

16 MR. HAUSFELD: EXACTLY, YOUR HONOR. IF THERE ARE

17 SOME, THEY ARE COLLABORATING AND CONNIVING WITH THE NCAA TO

18 CIRCUMVENT THOSE RULES SO THAT THEY CAN USE THE NAME, IMAGE,

19 AND LIKENESS OF THOSE ATHLETES WITHOUT MAKING COMPENSATION TO

20 THOSE ATHLETES FOR THAT RIGHT BUT WHILE PAYING KICKBACKS TO

21 THE NCA FOR DOING SO.

22 THE COURT: AND SO I'LL ASK YOU THE SAME QUESTION

23 HERE AS WITH REGARD TO THE GAMES, YOU WOULD -- WELL, I KNOW

24 YOUR FIRST POSITION IS THAT THEY DON'T HAVE TO HAVE BEEN IN

25 A -- WELL, MAYBE THIS ISN'T.




48

1 IS -- I GUESS IT'S YOUR POSITION THAT THEY DON'T HAVE TO

2 HAVE ACTUALLY HAVE BEEN AN AVATAR IN A VIDEO GAME IN ORDER TO

3 RECOVER, THAT ANYBODY WHO IS ON THE ROSTER SHOULD BE ABLE TO

4 RECOVER.


6 THE COURT: IS THAT RIGHT?

7 MR. HAUSFELD: THAT IS WHAT EA BUYS. THEY BUY THE

8 ROSTERS.

9 THE COURT: OKAY. SO IF -- LET'S SAY THAT DIDN'T FLY

10 AND ONE HAD TO SAY THAT THEY WERE -- THEY WERE AN AVATAR IN A

11 VIDEO GAME IN ORDER TO RECOVER, I GUESS YOU WOULD SAY THAT

12 EVERYONE -- THAT THAT YOU WOULD BE CONTENT TO LET EVERYBODY

13 TRY TO SHOW WHO THEY WERE, AND IT WOULD HAVE TO BE DETERMINED

14 WHETHER THEY REALLY WERE THAT AVATAR OR NOT, AND THEY WOULD

15 HAVE TO SHOW THAT THEY WERE IN ORDER TO BE IN THE CLASS.

16 MR. HAUSFELD: AND THAT'S CLEARLY ASCERTAINABILITY

17 BECAUSE ALL THOSE VIDEO GAMES EXIST.

18 THE COURT: WELL, THEY CERTAINLY EXIST. THERE SEEMS

19 TO BE SOME DISPUTE ABOUT HOW IDENTIFIABLE EVERYBODY REALLY IS.

20 BUT YOU WOULD AGREE THAT YOU WOULD HAVE -- EACH PERSON WOULD

21 HAVE TO SAY, THERE'S ME. I WAS NO. 6. I WEIGHED 190 POUNDS

22 OR WHATEVER, AND I'M RIGHT-HANDED, AND I WORE A (SIC) ARMBAND,

23 AND SO THAT'S ME. AND SOMEBODY WOULD HAVE TO DETERMINE THAT

24 THAT WAS THE CASE. YES?

25 MR. HAUSFELD: IN MATERIALS THAT HAVE BEEN SUBMITTED




49

1 UNDER SEAL, FOR EXAMPLE, THERE IS AN EXTENSIVE --

2 THE COURT: WELL, DON'T DISCLOSE WHAT'S BEEN

3 SUBMITTED UNDER SEAL.

4 MR. HAUSFELD: NO. NO. THERE'S AN EXTENSIVE

5 DESCRIPTION OF THE COMPOSITION OF THOSE AVATARS AND THE

6 RELATION OF THOSE AVATARS, THOSE DESCRIPTIVE ELEMENTS OF THE

7 ATHLETES IN THOSE AVATARS TO THE ACTUAL ATHLETES THAT WERE IN

8 THE GAMES.

9 THE COURT: HMM. OKAY.

10 SO IF I COULD ASK THE EA AND CLC PEOPLE, YOU HAVE TWO

11 SEPARATE FIRMS FOR EA AND --

12 MR. VAN NEST: WE DO, YOUR HONOR.

13 MR. CURTNER: THAT'S CORRECT.

14 THE COURT: MY QUESTION HERE IS, YOU'RE SORT OF

15 SAYING, OH, THEY DON'T HAVE ANY GOOD CLAIMS AGAINST US, WHICH

16 ISN'T REALLY THE SAME AS SAYING A CLASS SHOULDN'T BE

17 CERTIFIED. SO WHAT I'M WONDERING IS, SHOULDN'T YOU MAKE ALL

18 YOUR ARGUMENTS AT SUMMARY JUDGMENT AND NOT NOW? IF I CERTIFY

19 A CLASS AGAINST EVERYBODY WHO'S SUED, YOU CAN LATER SAY, WELL,

20 OKAY, THE CLASS WAS CERTIFIED, BUT I'M -- I'M NOT LIABLE

21 BECAUSE THERE'S NO EVIDENCE AGAINST ME, AND THEN YOUR PEOPLE

22 GET OUT AT THAT POINT.

23 BUT WHAT WOULD I DO IF I WERE TO BUY YOUR ARGUMENT NOW?

24 IT'S -- THIS ISN'T A SUMMARY JUDGMENT MOTION.





50

1 MR. VAN NEST: BOB VAN NEST FOR ELECTRONIC ARTS AND

2 SPEAKING ON BEHALF OF CLC AS WELL, YOUR HONOR.

3 OUR POINT IS THAT UNDER COMCAST, AND IT'S JUST THE MOST

4 RECENT STATEMENT OF IT, YOU WOULD BE REQUIRED TO IDENTIFY SOME

5 LEGAL THEORY OF ANTITRUST LIABILITY THAT'S CREDIBLE AGAINST

6 THE DEFENDANTS IN ORDER TO THEN GO ON AND SAY, OKAY, THERE'S A

7 MODEL FOR DETERMINING ON A CLASS-WIDE BASIS ANTITRUST INJURY.

8 WHAT WE'RE SAYING IS WITH THIS NEW CHANGE IN THEORY WHERE

9 THEY'RE ALLEGING AN OVERARCHING CONSPIRACY BASED ON THE RULES,

10 WHICH IS WHAT MR. HAUSFELD SAID AT THE TOP OF THE HOUR, IT'S

11 BASED ON THE BYLAWS, THE CONSTITUTION AND ALL THAT, NEITHER EA

12 NOR CLC HAVE ANYTHING TO DO WITH THE RULES. THEY DON'T CREATE

13 THEM. THEY DON'T ENFORCE THEM. AND AS YOUR HONOR RECOGNIZED

14 EARLIER IN THE CASE AND SAID AGAIN, I THINK, JUST THIS

15 AFTERNOON, THE MERE FACT THAT WE ARE COMMERCIAL ENTITIES

16 TRYING TO MAXIMIZE OUR RIGHTS UNDER THE RULES IS NOT A SHERMAN

17 ACT -- IS NOT LIABILITY UNDER THE SHERMAN ACT. AND YOU CAN'T

18 CERTIFY WHERE THERE ISN'T EVEN A CREDIBLE THEORY AGAINST US

19 'CAUSE COMCAST REQUIRES AT LEAST -- NOT THAT THEY PROVE THE

20 THEORY --

21 THE COURT: RIGHT, BUT I ALREADY FOUND A CREDIBLE

22 THEORY. NOW IT'S MUDDIED BY THE FACT THAT NOW THERE'S A

23 DIFFERENT THEORY OUT THERE, AND I KNOW PLAINTIFFS WOULD SAY

24 IT'S ALL ONE BIG HORIZONTAL AND VERTICAL THEORY, SORT OF AN

25 L-SHAPED CONSPIRACY, BUT THAT MIGHT NOT BE RIGHT. THERE MIGHT




51

1 BE THE VERTICAL CONSPIRACY THAT I FOUND HAD BEEN ALLEGED

2 AGAINST YOU BEFORE AND NOW THAT MAYBE THEY'RE ALLEGING A NEW

3 AND DIFFERENT HORIZONTAL CONSPIRACY AGAINST OTHER PEOPLE THAT

4 MAY NOT FLY AGAINST YOU. BUT THAT DOESN'T MEAN THAT THERE

5 ISN'T STILL AN AT LEAST AN ALLEGED --

6 MR. VAN NEST: IT'S NOT MUDDY.

7 THE COURT: -- THEORY AGAINST YOU.

8 MR. VAN NEST: IT'S NOT ONE BIT MUDDY, YOUR HONOR.

9 AND THAT'S WHY THIS CHANGE IS SO CRITICAL AS TO EA AND CLC.

10 WHAT YOU FOUND WAS THAT BECAUSE THEY HAD ALLEGED SOMETHING

11 MORE THAN JUST FOLLOWING THE RULES, THEY COULD STATE A CLAIM.

12 THAT SOMETHING MORE WAS THEY PROMISED YOU THEY COULD PROVE

13 THAT WE, EA, HAD AGREED NOT TO COMPENSATE EVEN FORMER STUDENT

14 ATHLETES SOMETHING BEYOND THE LICENSE, BEYOND THE RULES,

15 THAT'S OUT OF THEIR THEORY. THEIR EXPERT ADMITS THAT THERE IS

16 ABSOLUTELY NO EVIDENCE OF ANY EXCLUSION OF A FORMER ATHLETE.

17 IN THE RECORD, THERE ARE 60-SOME LICENSE AGREEMENTS,

18 SEPARATE LICENSE AGREEMENTS, WITH -- UNDER WHICH EA AGREES TO

19 PAY FORMER STUDENT ATHLETES. THEY'RE SEPARATELY NEGOTIATED AT

20 SEPARATE PRICES FOR SEPARATE PEOPLE.

21 THE COURT: WELL, RIGHT, BUT THERE'S SOME FORMER

22 STUDENT ATHLETES THAT ARE ALLEGEDLY IN YOUR GAMES THAT YOU

23 DON'T PAY.

24 MR. VAN NEST: YOUR HONOR, THAT IS NO LONGER A PART

25 OF THEIR CLAIM. THEIR EXPERT ADMITS --




52

1 THE COURT: THAT'S NOT MY UNDERSTANDING.

2 MR. VAN NEST: WELL, THEIR EXPERT ADMITS -- MR. NOLL

3 ADMITS IN HIS ANALYSIS -- DR. NOLL ADMITS THAT THERE WAS NO

4 EXCLUSION AS TO FORMER ATHLETES. THE CLASS IS NOW DEFINED AS

5 CURRENT ATHLETES. THE CLASS IS NOW DEFINED AS CURRENT

6 ATHLETES, AND DR. NOLL HAS CONCEDED --

7 THE COURT: THE DAMAGES CLASS IS FORMER ATHLETES, AND

8 THE INJUNCTION CLASS IS FORMER AND CURRENT.

9 MR. VAN NEST: FAIR ENOUGH. FAIR ENOUGH.

10 HIS EXPERT HAS SAID THAT AS TO FORMER ATHLETES, THERE IS

11 NO -- THERE HAS BEEN NO EXCLUSION OF THEM FROM THE MARKET, AND

12 THE EVIDENCE IN THE RECORD IS THE 60 AGREEMENTS THAT EA HAS

13 ENTERED INTO -- MORE THAN THAT -- WITH INDIVIDUAL FORMER

14 ATHLETES.

15 THEIR CLAIM NOW IS SIMPLY THE RULES ARE THAT YOU CANNOT

16 PAY A CURRENT ATHLETE FOR PARTICIPATING IN COLLEGE SPORTING

17 EVENTS, NCAA-SANCTIONED EVENTS, YOU CAN'T PAY THEM. AND AS TO

18 THAT CONSPIRACY, WHICH THEY SAY IS THE OVERARCHING SINGLE

19 CONSPIRACY, EA AND CLC ARE BENCH WARMERS, RIGHT? THEY'RE

20 BYSTANDERS. WE STAND IN THE SAME SHOES AS EVERY OTHER

21 LICENSEE, ABC, NBC, ESPN. ALL WE ARE ARE PEOPLE WHO ARE

22 TRYING TO GET THE RIGHTS THAT THEY'RE MAKING AVAILABLE UNDER

23 THE RULES THAT EXIST.

24 AND YOUR HONOR HAS SAID, AND QUITE RIGHTLY, THAT UNDER

25 KENDALL AND TOSCANA AND THE 49ER CHEVROLET CASE IN THE NINTH




53

1 CIRCUIT, THAT SORT OF COMMERCIAL CONDUCT IS NOT AN ACTIONABLE

2 VIOLATION, AND --

3 THE COURT: WELL, I DIDN'T SAY THAT. I SAID THAT'S

4 WHAT YOU ALL SAID.

5 MR. VAN NEST: NO -- WELL, I DISAGREE. YOUR HONOR --

6 YOUR HONOR NOTED --


8 THE COURT: -- HELD THAT IN A PREVIOUS ORDER, YOU'RE

9 SAYING?

10 MR. VAN NEST: IN A PREVIOUS ORDER. IN A PREVIOUS

11 ORDER, WHAT YOUR HONOR SAID WAS THAT -- THAT EA IS CORRECT,

12 THAT MANY OF THE NEW ALLEGATIONS --

13 THE COURT: RIGHT, BUT SOME --

14 MR. VAN NEST: -- DO NOT SUGGEST ANYTHING MORE --

15 THE COURT: -- ALLEGATION OF A FURTHER AGREEMENT

16 BESIDES --

17 MR. VAN NEST: THAT'S RIGHT.

18 THE COURT: OKAY.

19 MR. VAN NEST: AND SO -- AND SO THE QUESTION YOU

20 ASKED AT THE TOP OF THE HOUR IS EXACTLY RIGHT. GIVEN THIS

21 CHANGE -- AND I THINK YOUR HONOR'S SUGGESTION WITH RESPECT TO

22 AMENDING THE COMPLAINT IS PRACTICAL, AND THAT'S FINE WITH US

23 BECAUSE, AS WE READ THE CLASS CERT PAPERS AND AS WE READ

24 DR. NOLL'S REPORT AND HIS TESTIMONY, THEY ARE BASED -- BASING

25 THEIR ENTIRE OVERARCHING CONSPIRACY ON THE RULES AND BYLAWS




54

1 AND CONSTITUTION OF THE NCAA.

2 AND AS TO THAT, NEITHER CLC NOR EA PLAY ANY ROLE

3 WHATSOEVER; AND, THEREFORE, UNDER COMCAST, THERE ISN'T EVEN A

4 HOOK TO CERTIFY A CLASS BECAUSE THEY DON'T HAVE WHAT'S CALLED

5 AN ACCEPTED VIABLE THEORY OF ANTITRUST LIABILITY AGAINST US

6 ANYMORE BECAUSE THEY'VE MADE A CHANGE IN THE THEORY.

7 THE COURT: OKAY. DO YOU HAVE ANYTHING YOU FEEL YOU

8 HAD NEED TO ADD?

9 MR. BOYLE: YES. PETER BOYLE, YOUR HONOR, FOR CLC.

10 I THINK IT'S REALLY SIGNIFICANT THAT -- AND YOU -- AND YOU

11 POINTED OUT -- PLAINTIFFS COMPLETELY IGNORE CLC IN THE

12 BRIEFING PAPERS.

13 THE COURT: WELL, RIGHT. BUT NOW THEY SAY THE TWO

14 THINGS THEY SAY YOU DID. I GATHER JERSEYS AND BOBBLE HEADS

15 AND ALL OF THAT ARE OUT.


17 THE COURT: SO IT'S THE TWO THINGS HE SAID.

18 MR. BOYLE: WELL -- RIGHT. SO HE -- HE SAID CLC ACTS

19 AS A GO-BETWEEN. I'M NOT EXACTLY SURE WHAT THAT MEANS. WE DO

20 ACT AS A CONDUIT BETWEEN THE NCAA AND THE SCHOOLS AND EA FOR

21 PURPOSES OF TRADEMARK LICENSING.

22 HE SAID CLC WAS INVOLVED IN ADVOCATING FOR THE USE OF NAME

23 AND LIKENESS RIGHTS WITHOUT COMPENSATION. THE "WITHOUT

24 COMPENSATION" PART IS A TOTAL FABRICATION. THERE WAS A POINT

25 IN TIME WHERE EA, ASSISTED BY CLC, ASKED THE NCAA IF THEY




55

1 WOULD BE WILLING TO CHANGE THE RULES ON NAME AND LIKENESS. IT

2 NEVER HAPPENED, AND WE NEVER GOT FAR ENOUGH TO START

3 DISCUSSING WHAT WOULD HAPPEN IN THAT WORLD. WOULD THERE BE

4 PAYMENTS? WHAT WOULD THEY LOOK LIKE? WOULD THERE BE

5 PERMISSION? HOW WOULD YOU GET THE CONSENT OF THE STUDENT

6 ATHLETES?

7 IF YOU LOOK AT THE EVIDENCE THEY PUT IN THE RECORD ON THAT

8 ADVOCACY, IT DOESN'T SHOW ANYTHING THAT WOULD SUGGEST THAT

9 ANYBODY WAS TALKING ABOUT NOT PAYING THE STUDENT ATHLETES IF

10 THAT RULE WAS CHANGED. THE RULE WAS NEVER CHANGED.

11 NOW, IT'S -- THEY HAVE TO COME FORWARD WITH SOME PROOF.

12 EVEN THOUGH IT'S A RULE 23 PROCEEDING, COMCAST SAYS THERE'S

13 GOT TO BE AN EVIDENTIARY BASIS FOR FINDING THAT THE RULE 23

14 ELEMENTS HAVE BEEN SATISFIED. THEY COMPLETELY IGNORED US.

15 THEY CAN'T PROVE THAT 'CAUSE THEY HAVEN'T PUT IN ANY COMMON

16 EVIDENCE THAT WOULD HELP SHOW THAT CLC ENGAGED (SIC) ANY FORM

17 OF PRICE FIXING OR ANY FORM OF GROUP BOYCOTT.

18 SO I'M WITH -- I'M WITH MR. VAN NEST. I -- I THINK IF

19 WE'RE GOING TO GO WITH THE NEW THEORY, THE COMPLAINT HAS TO BE

20 CHANGED. I DON'T THINK IT CHANGES THE WORLD WHEN IT COMES TO

21 CLC, PROBABLY NOT EA. I DON'T THINK YOU CAN CERTIFY A CLASS

22 AGAINST US WHEN THEY HAVEN'T POINT (SIC) TO ANY COMMON

23 EVIDENCE AGAINST US.

24 THE COURT: HMM. OKAY.

25 SO ARE YOU PLANNING ON -- WELL, WHAT ARE YOU PLANNING ON




56

1 DOING ABOUT THIS? ARE YOU GOING TO ALLEGE AN L-SHAPED

2 CONSPIRACY OR --


4 THE COURT: -- A FALLBACK POSITION WITH AN L SHAPE,

5 AND IF NOT THE L SHAPE, THEN TWO SEPARATE ONES, ONE VERTICAL

6 AND ONE HORIZONTAL?

7 MR. HAUSFELD: I THINK, YOUR HONOR, THE ARGUMENTS

8 THAT WERE JUST MADE -- AND I'M IN AGREEMENT THAT CLC IS WITH

9 EA WITH RESPECT TO THIS -- UNAMBIGUOUSLY DESCRIBES THE FACT

10 THAT THERE WERE RULES THAT THEY CLAIM THEY WERE FOLLOWING.

11 WELL, WHO SET THOSE RULES? THE RULES WERE SET BY THE NCAA.

12 BUT BY THE MEMBERSHIP OF THE NCAA, HORIZONTAL COMPETITORS THAT

13 GOT TOGETHER TO AGREE --

14 THE COURT: RIGHT, BUT THEY WEREN'T EA AND THEY

15 WEREN'T CLC, SO THAT'S THE ISSUE WE'RE TALKING ABOUT RIGHT

16 NOW.

17 MR. HAUSFELD: YOUR HONOR POINTED OUT IN ONE OF HER

18 RULINGS THAT THERE WAS AN OVERARCHING CONSPIRACY. WE START

19 WITH --

20 THE COURT: I POINTED OUT THAT YOU'D ALLEGED ONE.

21 MR. HAUSFELD: WE START WITH THE FACT THAT THERE IS

22 A -- THERE IS AN AGREEMENT AMONG HORIZONTAL COMPETITORS TO

23 FORECLOSE ACCESS -- EQUAL ACCESS TO THE MARKET TO STUDENT

24 ATHLETES FOR N.I.L. RIGHTS AND TO SET THOSE RIGHTS TO ZERO.

25 THEN THEY IMPOSE THAT HORIZONTAL AGREEMENT ON ALL LICENSEES,




57

1 WHICH IS, AS -- AS YOUR HONOR SAID, EITHER -- IS THE L SHAPE.

2 EA AND CLC ABIDE BY THAT. IF WE LOOK AT EXHIBITS 56 AND

3 79 --

4 THE COURT: WELL, IF THEY IMPOSE IT AND ELC (SIC) AND

5 EA DON'T LIKE IT AND DIDN'T AGREE TO IT AND DIDN'T WANT IT AND

6 DIDN'T ENCOURAGE IT OR CONSPIRE TO OBTAIN IT BUT MERELY SAID,

7 OKAY, THAT'S THE RULE. I CAN'T HAVE MY STUFF IF I DON'T

8 FOLLOW IT, THEN HOW ARE THEY PART OF THE CONSPIRACY?

9 MR. HAUSFELD: I WOULD BE IN AGREEMENT WITH YOUR

10 HONOR BUT FOR THE FACT THAT THEY CIRCUMVENTED IT. THE -- THE

11 THREE, IN COMBINATION AND CONNIVANCE, UNDERSTOOD THAT THE USE

12 OF NAME, IMAGE, AND LIKENESS OF THE ATHLETES WAS A RIGHT THAT

13 ATHLETES HAD. THAT IS A RIGHT THAT EA TESTIFIED THAT IT

14 WANTED. THEY WANTED TO USE MORE DIRECT NAME, IMAGE, AND

15 LIKENESS OF THE ATHLETES. BUT THERE WAS THESE RULES THAT THE

16 COMPETING SCHOOLS SET, SO THEY WORKED WITH EA, CLC, AND THE

17 NCAA TO CIRCUMVENT THOSE RULES WHERE NCAA BASICALLY UNDERSTOOD

18 THAT THE IMAGES AND LIKENESS AND EVEN NAMES OF THE ATHLETES

19 WERE BEING, THE WORDS OF THE NCAA, ILLEGALLY RIGGED INTO THE

20 GAMES BUT THEY CLOSE TO LOOK THE OTHER WAY; THAT WHEN THIS WAS

21 PRESENTED BY EA TO THE NCAA, CLC STEPPED IN ON -- NEGOTIATING

22 ON THE PART OF THE NCAA AND SAID, LOOK, WHY DON'T WE INCREASE

23 THE REVENUE TO THE NCAA.

24 EA WANTED TO MAKE A CONTRIBUTION TO A PLAYERS' FUND. THE

25 AGREEMENT FOR THE KICKBACK WAS MADE BUT EXPRESSLY ON THE




58

1 CONDITION THAT THERE WOULD BE NO ROYALTIES OR PAYMENTS TO THE

2 PLAYERS' FUND, AND THAT'S EXHIBIT 79.

3 THE COURT: OKAY. I WANT TO TALK ABOUT --

4 MR. HAUSFELD: SO THEIR CONDUCT WENT BEYOND MERELY

5 FOLLOWING THE ORDERS. THEY PARTICIPATED IN FINDING WAYS TO

6 CREATE SUBTERFUGES TO ACQUIRE AND USE THE NAMES, IMAGE, AND

7 LIKENESS IRRESPECTIVE OF THE ASSOCIATION'S PROHIBITION.

8 MR. VAN NEST: YOUR HONOR, MAY I RESPOND BRIEFLY TO

9 THAT? EXCUSE ME.

10 THE COURT: I DON'T THINK SO. I -- I WANT TO TALK

11 ABOUT THE INJUNCTIVE RELIEF CLASS, WHICH I GATHER IS BOTH

12 CURRENT AND FORMER STUDENT ATHLETES.

13 AND I'M TRYING TO FIGURE OUT WHAT IT IS THAT YOU WANT

14 WITH -- IN THAT REGARD.

15 ARE YOU REALLY, AS -- UNDER THE RUBRIC OF INJUNCTIVE

16 RELIEF, ARE YOU REALLY GOING TO BE ASKING FOR -- SORT OF AN

17 IMPOSITION OF TERMS OF LICENSE AGREEMENTS?

18 MR. HAUSFELD: NO.

19 THE COURT: IN OTHER WORDS, THAT THE COURT --


21 THE COURT: -- SAY, HERE'S THE TERMS OF YOUR LICENSE

22 AGREEMENT AND WHAT DR. NOLL SAYS?

23 MR. HAUSFELD: IT WOULD BE -- IT WOULD BE A

24 PROHIBITORY INJUNCTION.

25 THE COURT: THAT WOULD SAY WHAT?




59

1 MR. HAUSFELD: LOOKING AT THE RESTRAINT AND SAYING

2 THAT -- THAT -- THAT THE NCAA COULD NOT ENFORCE OR REQUIRE

3 OTHERS TO ABIDE BY A RESTRAINT THAT VIOLATED THE FEDERAL

4 ANTITRUST LAWS. AND HERE, IT WOULD -- IT WOULD BE WITH

5 RESPECT TO THE CURRENT AND FORMER ATHLETES PART- -- BEING

6 FORECLOSED FROM PARTICIPATING IN THE MARKET FOR THE NAME,

7 IMAGE, AND LIKENESS.

8 THE COURT: OKAY. SO YOU'RE NOT GOING TO BE ASKING

9 ME TO SAY OR YOU'RE -- WELL, TO SAY WHAT THE TERMS SHOULD BE.

10 I WOULD JUST SAY OKAY. THE ATHLETES CAN GO TO THE COLLEGES

11 NOW AND ASK THEM TO GET PAID, OR THEY CAN GO TO EA AND ASK

12 THEM TO GET PAID. AND IF THE COLLEGES SAYS, NO THANKS AND EA

13 SAYS, NO THANKS, THEN NOTHING WOULD HAPPEN, OR PERHAPS THEY

14 WOULD SUE IF THEY HAD SOME SORT OF CAUSE OF ACTION.

15 MR. HAUSFELD: AS LONG AS -- AND THOSE -- THOSE

16 DECISIONS WERE NOT MADE IN CONCERT AND THEY WERE MADE

17 INDEPENDENTLY, THAT --

18 THE COURT: WELL, YOU'RE ASKING --

19 MR. HAUSFELD: -- THAT WOULD BE THE MARKETPLACE.

20 THE COURT: OKAY.

21 MR. VAN NEST: YOUR HONOR?

22 THE COURT: YES.

23 MR. VAN NEST: THIS IS THE POINT I WANTED TO MAKE,

24 THAT YOU DON'T NEED EITHER EA OR CLC. THEY'RE NOT ASKING FOR

25 ANY MONEY FROM EITHER ONE, AND THEY'RE NOT ASKING FOR ANY




60

1 INJUNCTIVE RELIEF. WHAT THEY'RE ASKING FOR IS A PROHIBITION

2 ON ENFORCING THE RULES THAT THE NCAA NOW HAS. AND THAT'S

3 CONSISTENT WITH WHAT THEIR EXPERT SAYS, WHICH IS THAT EA WOULD

4 HAVE BEEN BETTER OFF WITHOUT THESE RULES. WITHOUT THE RULES,

5 EA'S BETTER OFF BECAUSE THEN, PRESUMABLY, THEY COULD NEGOTIATE

6 WITH ATHLETES, WHICH THEY CAN'T DO NOW. AND, AS MR. HAUSFELD

7 SAID, IT'S THE NCAA THAT'S IMPOSING RULES. THAT'S ALL YOU

8 NEED TO KNOW TO SAY THIS CASE FALLS RIGHT WITHIN KENDALL AND

9 THOSE OTHER CASES THAT SAY, IF ALL YOU'RE DOING IS FOLLOWING

10 THE RULES OFFERED BY THE LICENSOR, THAT IS NOT A SHERMAN ACT

11 VIOLATION.

12 AND IT'S BORNE OUT BY THE FACT THEY DON'T WANT INJUNCTIVE

13 RELIEF FROM US. THEY DON'T ALLEGE THAT WE OWE ANY MORE MONEY.

14 THEIR DAMAGES THEORY IS THE MONEY THAT EA ALREADY PAID WOULD

15 HAVE BEEN SPLIT BETWEEN THE NCAA AND THE ATHLETES. THEIR

16 EXPERT ADMITS THE MARKET IN WHICH WE PAID FOR THE LICENSE FROM

17 THE NCAA WAS FAIR AND COMPETITIVE, AND EA DOESN'T OWE A DIME.

18 SO, AGAIN, ALL THIS FITS WITH THE SAME THING I (SIC) BEEN

19 SAYING, THERE'S NO LONGER A CREDIBLE THEORY FOR DAMAGES,

20 INJUNCTIVE RELIEF, OR LIABILITY AGAINST EITHER EA OR CLC. AND

21 THE ANSWER IS THEY SHOULDN'T BE CERTIFIED UNDER COMCAST 'CAUSE

22 WITHOUT THAT THEORY, THERE'S NO HOOK FOR CERTIFICATION AT ALL.

23 THEY MAY HAVE INDIVIDUAL CLAIMS, BUT THEY DON'T HAVE A

24 CLAIM FOR -- AS A CLASS 'CAUSE THERE'S NO CREDIBLE ANTITRUST

25 THEORY ON WHICH CERT COULD BE BASED.




61

1 MR. HAUSFELD: YOUR HONOR, THE CLAIM FOR THE CLASS IS

2 FOR THE DAMAGE, AND THE DAMAGE OCCURRED BECAUSE THERE WAS

3 (SIC) AFFIRMATIVE ACTS TAKEN TO CIRCUMVENT THOSE RULES DESPITE

4 THE FACT THAT BOTH THE NCAA, CLC, AND EA KNEW THAT THOSE RULES

5 EXISTED IN VIOLATION OF THE ATHLETES' RIGHTS.

6 THE COURT: WELL, THAT'S SORT OF A TOTALLY DIFFERENT

7 THEORY, ACTUALLY.

8 MR. HAUSFELD: NO, YOUR HONOR.

9 MR. VAN NEST: EXACTLY.

10 THE COURT: I MEAN, YOU MIGHT SUE THEM FOR THAT --

11 MR. HAUSFELD: THAT'S PARTICIPATING.

12 THE COURT: -- SEEMS TO ME.

13 MR. HAUSFELD: NO, YOUR HONOR. THAT'S PARTICIPATING

14 IN THE CONSPIRACY. IF YOU TAKE AFFIRMATIVE ACTS TO DO THAT

15 WHICH YOU UNDERSTAND YOU DO NOT HAVE THE RIGHT TO DO BECAUSE

16 IT WOULD VIOLATE SOMEONE ELSE'S RIGHTS, YOU'RE PARTICIPATING

17 IN A COMBINATION WITH OTHERS TO DEPRIVE VICTIMS OF THE RIGHTS

18 THEY OTHERWISE WOULD HAVE.

19 GOING FORWARD, IF YOUR HONOR WERE TO ENTER INTO A

20 PROHIBITORY INJUNCTION, THAT WOULD RESOLVE WHAT EA COULD OR

21 COULD NOT DO. THEY WOULDN'T HAVE TO CIRCUMVENT ANYTHING.

22 THERE WOULD BE A PROHIBITION AGAINST THE NCAA FROM ENFORCING

23 AND/OR -- FOR -- REQUIRING OTHERS TO ABIDE BY RULES THAT THE

24 COURT HAD -- HAD ENJOINED.

25 THE COURT: SO LET'S TALK ABOUT --




62

1 MR. CURTNER: YOUR HONOR, ONE COMMENT.

2 THE COURT: OH. WELL, ONE OTHER THING I WANTED TO

3 TALK ABOUT IN TERMS OF THE INJUNCTIVE RELIEF CLASS IS THAT YOU

4 DON'T HAVE ANY CURRENT STUDENTS. SO DO YOU HAVE ANY CLASS

5 REPRESENTATIVE WHO COULD MAKE THIS INJUNCTIVE RELIEF CLAIM ON

6 BEHALF OF CURRENT STUDENTS?

7 MR. HAUSFELD: WE COULD, YOUR HONOR, BUT WE WOULD ASK

8 TO POSSIBLY APPROACH YOUR HONOR IN CHAMBERS ON THAT BECAUSE

9 THERE'S THE ISSUE THAT WE WOULDN'T WANT ANY CURRENT ATHLETE TO

10 BE RETALIATED AGAINST, TO LOSE HIS ELIGIBILITY JUST BY

11 BECOMING A PLAINTIFF CHALLENGING THE INJUNCTIVE NATURE OF THE

12 RULES.

13 THE COURT: WELL, I WOULD SAY WHAT YOU'D HAVE TO DO,

14 THEN, WOULD BE TO FILE A MOTION TO FILE A COMPLAINT WITH THE

15 NAME REDACTED AND FILE IT UNDER SEAL, AND THAT WOULD RAISE A

16 HUGE NUMBER OF PROBLEMS. AND IT -- YOU CERTAINLY COULDN'T

17 JUST TELL ME IN CHAMBERS ALL ABOUT IT. YOU'D HAVE TO FILE

18 SOME PAPERS.

19 MR. HAUSFELD: NO, THAT WAS THE PROCEDURE --


21 MR. HAUSFELD: -- THAT WE WISHED TO DISCUSS WITH YOU.

22 MR. CURTNER: YOUR HONOR, THE --

23 THE COURT: THE PROCEDURE WOULD BE TO MOVE FOR LEAVE

24 TO FILE AN AMEND COMPLAINT WITH A JOHN DOE PLAINTIFF AND HAVE

25 THE NAME OF THE PLAINTIFF UNDER SEAL AND NOT DISCLOSE IT. I,




63

1 FRANKLY, CAN'T IMAGINE HOW THAT WOULD WORK, BUT THAT WOULD BE

2 WHAT YOU'D HAVE TO ASK FOR.

3 MR. CURTNER: YOUR HONOR, THERE IS NO STANDING

4 WITHOUT A NAMED PLAINTIFF WHO'S A MEMBER OF THAT GROUP, AS YOU

5 CORRECTLY POINT OUT.

6 AND, FURTHERMORE, IF A CURRENT STUDENT ATHLETE WANTS TO

7 SUE TO ENFORCE THEIR RIGHTS, WHATEVER THEY MAY THINK THEY ARE,

8 THEY -- THEY'RE FREE TO DO THAT. A CURRENT STUDENT ATHLETE IS

9 CURRENTLY PURSUING A NAME, IMAGE, LIKENESS CASE IN TEXAS, AND

10 THE NCA IS NOT TAKING ANY ACTION AGAINST THEM.

11 THE COURT: YEAH, BUT MAYBE YOU'D --


13 MR. CURTNER: THEY HAVE WHATEVER RIGHTS THEY HAVE.

14 WE DON'T TAKE AWAY THEIR RIGHTS.

15 THE COURT: ORDER AGAINST RETALIATION. I DON'T KNOW

16 HOW ONE WOULD DEAL WITH THAT, BUT --


18 THE COURT: -- THE MECHANICS OF IT WOULD BE TO FILE A

19 REQUEST TO USE A JOHN DOE PLAINTIFF NAME.

20 MR. HAUSFELD: WE ANTICIPATED THAT.

21 THE COURT: SO IN TERMS OF CASE MANAGEMENT, I -- I

22 DON'T NECESSARILY WANT TO CHANGE THE DATES RIGHT NOW. I

23 DON'T -- AND I DON'T WANT TO CHANGE THE SUBSTANCE OF HOW

24 THINGS ARE GOING TO BE. FOR EXAMPLE, I DON'T KNOW WHY I HAD

25 SIMULTANEOUS DISCLOSURE OF EXPERTS, BUT I DID. AND I'D RATHER




64

1 JUST STICK TO IT. AND THEN IN TERMS OF THE PROPOSED CHANGE TO

2 THE WAY THAT THE SUMMARY JUDGMENT MOTIONS WOULD BE BRIEFED, I

3 SPECIFICALLY DON'T WANT IT THE WAY THAT -- I THINK IT WAS

4 PLAINTIFFS PROPOSED CHANGING IT, OR MAYBE IT WAS DEFENDANTS --

5 TO HAVE EVERYBODY ESSENTIALLY HAVE A SERIES OF SIMULTANEOUS

6 BRIEFS. THAT'S -- THAT'S WHAT I DON'T WANT.

7 SO YOU COULD -- I DON'T KNOW WHEN I'M GOING TO GET THIS

8 ORDER OUT. YOU KNOW, THERE'S A LOT OF PAPER HERE, AND IT

9 MIGHT TAKE ME A WHILE. AND IF IT GETS TO THE POINT WHERE I

10 CAN'T GET IT OUT QUICK ENOUGH FOR YOU TO DO WHAT YOU HAVE TO

11 DO NEXT EFFICIENTLY, THEN MAYBE YOU WOULD STIPULATE TO

12 DELAYING THE DATES, OR MAYBE YOU WOULD -- SOMEBODY WOULD FILE

13 A MOTION TO DELAY THE DATES.

14 AT THE MOMENT, I DON'T THINK THERE'S ANYTHING COMING UP

15 THAT QUICKLY.

16 MR. CURTNER: YOUR HONOR, WE HAVE MERITS EXPERT

17 REPORTS DUE SIMULTANEOUSLY ON JULY 18TH, AND OUR MERITS

18 EXPERTS ARE SAYING THEY'RE ALREADY BEHIND THE EIGHT BALL ON

19 GETTING THEIR WORK DONE IN TIME. THERE'S STILL A LOT OF WORK

20 TO DO. AND, FURTHERMORE, IF WE'RE GOING TO HAVE AN AMENDED

21 COMPLAINT, I -- I KNOW YOU DON'T QUITE BELIEVE ME, BUT WE

22 HONESTLY DON'T KNOW WHAT THIS CASE IS ALL ABOUT.

23 WE DON'T KNOW WHAT RULES ARE AT STAKE. WE DON'T KNOW WHAT

24 THE FULL THEORY IS. WE UNDERSTAND NOW THAT IT IS A FULL-ON

25 PAY-FOR-PLAY, AMATEURISM IS PROHIBITED BY THE ANTITRUST LAWS




65

1 THEORY. WE THINK THAT --

2 THE COURT: THAT'S NOT TRUE.

3 MR. VAN NEST: YOUR --

4 MR. CURTNER: THAT'S THE WAY -- THAT'S WHY WE NEED A

5 COMPLAINT THEN --

6 MR. VAN NEST: YOUR HONOR --

7 MR. CURTNER: -- IF IT'S NOT TRUE.

8 MR. VAN NEST: -- COULD WE JUST GET -- IF YOU DID

9 NOTHING ELSE, IF YOU COULD JUST VACATE FOR 30 OR 60 DAYS THE

10 EXPERT SIMULTANEOUS -- I UNDERSTAND YOU WANT THEM

11 SIMULTANEOUS. THAT'S -- THAT'S WHAT WE WERE OBJECTING TO, BUT

12 IT WOULD BE A LOT BETTER IF YOU COULD JUST GIVE US AN EXTRA 60

13 DAYS ON THOSE 'CAUSE THEY ARE COMING UP PRETTY QUICK.

14 THE COURT: DO YOU HAVE A PROBLEM WITH THAT?


16 THE COURT: OKAY. SO 60 DAYS WOULD BE --

17 THE CLERK: WHAT ARE THEY CURRENTLY? I'M SORRY.

18 MR. CURTNER: JULY 18.

19 THE COURT: SIXTY DAYS FROM TODAY OR SIXTY DAYS FROM

20 JULY 18TH?

21 MR. VAN NEST: THE LATTER.

22 THE COURT: OKAY. SO SEPTEMBER 18TH, IF THAT'S A

23 WEEK DAY.

24 MR. VAN NEST: THAT'D BE GOOD.





66

1 THE COURT: -- TALK ABOUT THE REST OF THE DATES.

2 MR. VAN NEST: WE'LL DO IT. THANK YOU.

3 THE COURT: OKAY.

4 MR. BOYLE: YOUR HONOR, ONE THING ON THE SCHEDULING

5 ORDER, I THINK RIGHT NOW YOU HAVE THE DEFENDANTS SHARING A

6 25-PAGE BRIEF THAT HAS TO COVER --

7 THE COURT: OKAY. TRY BEFORE YOU ASK FOR MORE PAGES.

8 TRY TO WRITE IT IN 25 PAGES.

9 MR. VAN NEST: THAT'S OFF IN THE FUTURE. WE'LL --

10 WE'LL -- WE'LL DEAL WITH THAT IN THE FUTURE.

11 THE COURT: YEAH. IF YOU NEED TO, YOU CAN DO

12 SOMETHING LIKE WHAT YOU DID FOR THIS ROUND OF BRIEFING. BUT

13 MY MAIN GOAL IS TO HAVE AS FEW PAGES AS POSSIBLE AND TO NOT

14 HAVE THEM SAY THE SAME THING OVER AND OVER.

15 MR. VAN NEST: FAIR ENOUGH.

16 THE COURT: IF YOU TRY REAL HARD AND YOU CAN'T DO IT

17 IN THE NUMBER OF PAGES YOU'VE GOT, THEN YOU CAN ASK ME, BUT AT

18 LEAST TRY.

19 MR. VAN NEST: THERE -- THERE MAY BE FEWER OF US

20 THERE AS WELL, YOUR HONOR.

21 THE COURT: HE SAID HOPEFULLY.

22 MR. VAN NEST: I DID.

23 THE COURT: OKAY.

24 AND THEN I DO WANT YOU TO GO BACK TO JUDGE INFANTE AT SOME

25 POINT, BECAUSE I THINK HE'S GOT THE SKILLS -- AND I KNOW




67

1 YOU'VE BEEN TO HIM BEFORE -- THAT MIGHT ALLOW YOU TO SETTLE

2 THE CASE. BUT PROBABLY WHAT YOU SHOULD DO IS WAIT UNTIL THE

3 CLASS CERT RULING HAS COME OUT.

4 I'M NOT -- I'M GOING TO THINK ABOUT THIS A LITTLE BIT

5 MORE, BUT I THINK THE LIKELIHOOD IS THAT I'M GOING TO ASK FOR

6 AN AMENDED COMPLAINT THAT'S AMENDED AS LITTLE AS POSSIBLE BUT

7 ONLY ADDS WHAT'S ABSOLUTELY NECESSARY TO RESPOND TO THE

8 CRITICISMS. AND THEN TO PERHAPS NOT EVEN HAVE AN ANSWER,

9 UNLESS THERE'S SOME SPECIFIC THING THAT NEEDS TO BE DENIED,

10 PERHAPS IN SOME NEW FACT THAT'S BEEN ALLEGED, AND NOT TO HAVE

11 MOTIONS TO DISMISS, BUT, RATHER, TO INCORPORATE THE MOTIONS TO

12 DISMISS INTO THE MOTIONS FOR SUMMARY JUDGMENT.

13 SO THAT'S WHAT I'M THINKING ABOUT IN THAT REGARD JUST SO

14 YOU CAN --

15 MR. VAN NEST: WE'LL LOOK FORWARD TO YOUR ORDER, YOUR

16 HONOR.

17 THE COURT: AND THEN -- SO AT THAT POINT, PERHAPS

18 WOULD BE THE TIME TO -- TO GO BACK TO JUDGE INFANTE AND SEE

19 IF -- SEE IF YOU CAN TAKE ANOTHER SHOT AT SETTLEMENT.

20 OKAY. ANYTHING ELSE WE NEED TO DO RIGHT NOW?

21 MR. VAN NEST: I DON'T BELIEVE SO, YOUR HONOR.


23 MR. BOYLE: NO, YOUR HONOR.

24 MR. CURTNER: WE HAVE A FEW MORE POINTS IF THE

25 COURT'S INTERESTED.




68

1 (LAUGHTER.)

2 THE COURT: OKAY. THANK YOU.

3 THAT WAS A JOKE, RIGHT?

4 (LAUGHTER.)

5 (PROCEEDINGS WERE CONCLUDED AT 3:46 P.M.)

6 --O0O--

7

8

9 CERTIFICATE OF REPORTER

10

11 I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT

12 FROM THE RECORD OF PROCEEDINGS IN THE ABOVE-ENTITLED MATTER.

13 I FURTHER CERTIFY THAT I AM NEITHER COUNSEL FOR, RELATED TO,

14 NOR EMPLOYED BY ANY OF THE PARTIES TO THE ACTION IN WHICH THIS

15 HEARING WAS TAKEN, AND FURTHER THAT I AM NOT FINANCIALLY NOR

16 OTHERWISE INTERESTED IN THE OUTCOME OF THE ACTION.

17

18 ___________________________________

19 RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR

20 SUNDAY, JUNE 23, 2013

21

22

23

o'bannon certification transcript

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