o'bannon filing jan 13 2014: opposition to ncaa motion for summary judgment

8/13/2019 O'Bannon Filing Jan 13 2014: Opposition to NCAA Motion for Summary Judgment

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Michael P. Lehmann (Cal. BarNo. 77152)Arthur N. Bailey, Jr. (Cal. Bar No . 248460)HAUSFELD LLP44 Montgomery St., 34th FloorSan Francisco, CA 94104Telephone: (415) 633-1908Facsimile: (415) 358-4980Email: [email protected]

[email protected]

Michael D. Hausfeld (pro hac vice)Hilary K Scherrer (Cal. Bar No. 209451)Sathya S. Gosselin (Cal. Bar No. 269171)HAUSFELD LLP1700 K Street, NW, Suite 650Washington , DC 20006Telephone: (202) 540-7200Facsimile : (202) 540-7201Email: [email protected]

[email protected]@hausfeldllp.com

Plaintiffs Class Counsel with Prin cipalResponsibility or the Antitrust Claims

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

IN RE NCAA STUDENT -ATHLETENAME LIKENESS LICENSINGLITIGATION

This document relates to:

ANTITRUST PLAINTIFFS ACTIONS

Case No. 4:09-cv-1967 CW

ANTITRUST PLAINTIFFS COMBINEDOPPOSITION TO NCAA S MOTION FORSUMMARY JUDGMENT AND REPLY INSUPPORT OF MOTION FOR SUMMARYJUDGMENT

Judge: Honorable Claudia WilkenDate: February 20, 2014Time: 2:00 p.m.Courtroom: 2 , 4th Floor

[SUBMITTED PARTIALLY UNDER SEAL]

4:09-cv-1967 CW (NC)ANTITRUST PLAINTIFFS COMBINED OPPOSITION TO

NCAA S MOTION FOR SUMMARY JUDGMENT AND REPLYISO OF MOTION FOR SUMMARY JUDGMENT

REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALEDCase4:09-cv-01967-CW Document956-5 Filed01/13/14 Page1 of 30


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TABLE O CONTENTS

PLAINTIFFS OPPOSITION TO NCAA S SUMMARY JUDGMENTMOTION ........ . . .. . .... . ... ..... .. ....... . .. ...... . . . .................. . . ....... . ...... . . ............... . 1

Live Broadcast Claims . . .. .... ..... .................................. .... .... .. . ..... .... .... ........ .

Injunctive Relief Regarding Video games ....... . . . ..... ... ..... ............................. ............... 3

Claims oflndividual Class Representatives .................. ...... ........... ..... ............ .. ... .... 4

THE NCAA S PROCOMPETITIVE JUSTIFICATIONS ARE DEFICIENT ... .4

Alleged Goal O f Amateurism and Consumer Demand ....... .... ...... ..... ............. ... 7

Alleged Competitive Balance ....... ........ ............ ........................ .... ... ...... ........... . 0

Alleged Integration o f Athletics and Education .................. ......... ...... ..... 12

Alleged Support for Women s And Other Men s Sport ....................... ......... ............... . l4

Allegedly Increased Output . ..... . ... .... .......... ................. ......... ........ .... ...... .... .... .. .15

Less Restrictive Alternatives ......... ... . .... .... ... . ... ... .... .... ............... .... ... .... ........... 15

ANTITRUST PLAfNTIFFS COMBfNED OPPOSITION TO4:09-cv-1967 CW NC) - - NCAA S MOTION FOR SUMMARY JUDGMENT AND REPLY

ISO MOTION FOR SUMMARY JUDGMENT



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TABLE OF AUTHORITIES

Page(s)CASES

Agnew v NCAA,683 F.3d 328 (7th Cir. 2012) . ..... ..... . . ................ ... .... ... . ... ...... ... ..... ...... .. .... 5

Banks v . NCAA,977 F .2d 1081 (7th Cir. 1992) ......... .... . ....... .... ... ..... .... ........... ..... ........ .......... . .... ... .9

Bolger v Youngs Drug Prods. Corp.,463 U.S. 60 (1983) .... . . ............. ..... ... . ........... ............... ........................ . . . . ... . .... 1

Chicago Prof / Sports Ltd. P ship v NBA,754 F. Supp. 1336 (N.D. Ill. 1991) ....... . .... ...... . ........... . ............ .... ...... ... ..... ............ . 6

Church o f Scientology o f Cal . v. United States,506 u s 9 (1992) ..................... . ............. ..... ..... ...... ... ........ ........ ...... .... ....... ......... ....... . 3, 4

Deutscher Tennis Bund v ATP Tour , Inc. ,610 F.3d 820 (3d Cir. 2010) ............... ..... ........... ........................................... ... ...... ... ........ . .5

Dryer v NFL,689 F. Supp. d 1113 (D. Minn. 2010) ..... ........ .... .. . ......... ...... . ...... ..................... 2

Friends ofthe Earth, Inc. v Laidlaw Envtl. Servs. (I OC), Inc .,528 u s 167 (2000) .... ......... ... ................ .... ..... ..... ..... . ... .... ............. .... .... ......... . 4

Graphic Prods. Distribs. v Itek Corp.,717 F.2d 1560 (11th Cir. 1983) ........ ....... . ............ ............ ............. . . . ..... . ........ ..... 6

Hunt v City o f Los Angeles,638 F.3d 703 (9th Cir. 2011) .... . ..... . .... ........ ....... . ........ .. .... . ........... ....... ...

In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig.,No. MDL 150 AWT, 1992 WL 133093 (C.D. Cal. Apr. 30, 1992) ... ........ .... ... .... ............ ..... .

In re NCAA Student-Athlete Name Likeness Licens ing Litig.,No. C 09-1967 CW, 2013 WL 5778233 (N.D. Cal. Oct. 25, 2013) .............. ..... .... ..... passim

In re NCAA Walk-On Football Players Antitrust Litig.,398 F. Supp. d 1144 (W.D. Wash. 2005) ......... ............................ ...... .... ...................... 9

Lawv. NCAA,134 F.3d 1010 (lOth Cir . 1998) ... .... ..................... ....... ......... . ... ..... ...... 5, 6, 12, 13

Lawv. NCAA,902 F. Supp. 1394 (D. Kan. 1995) ..... .......... ..... ........ ... ...... ...... . . .... .............. 9

ANTITRUST PLAINTIFFS COMBINED OPPOSITION TO4:09-cv-1967 CW (NC) - 11 - NCAA S MOTION FOR SUMMARY JUDGMENT AND REPLY




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NCAA v. Board o f Regents ofUniv. o f Okla.,468 u.s. 85 (1984) .............................................. .... .. .................... ............ ........... ....... .. ... 5 6, 15

0 Bannon v. NCAA,Nos. C 09-1967 CW, C 09-3329 CW, C 09-4882 CW, 2010 WL 445190 (N.D. Cal.Feb. 8, 2010) .. .... .... .. .... .. ....... .. .. ....... ... .. ... ... ........ .. .... .. ................ .. ................. ... ...... .. ........ ........ 4

Oracle US.A., Inc. v. SAP AG,264 F.R .D. 541 (N.D. Cal. 2009) .... .. ... .... ........ .. .......... ........... .. ..... .. .... ...... ........... ..... .............. ..5

Polygram Holding, Inc. v. FTC,416 F.3d 29 (D.C. Cir. 2005) . .. .. .... ... .. .. .... ........ .. .. . .. .. .. . .. .. ....... ..... ........ .. ........ .. ..... .. .......... .. ..5, 6

Post Newsweek Stations-Connecticut, Inc. v. Travelers Ins. Co.,510 F. Supp. 81 (D. Conn. 1981) ........................................... .. .... .... .. .. ...... ........ ........ .... .... .. .. .... 1

Russell v. NCAA,No. C 11-4938 CW, 2012 WL 1747496 (N.D. Cal. May 16, 2012) .... .. .. ....... .. .. .... .. ........... .... 4

Soremekun v. Thrifty Payless, Inc. ,509 F.3d 978 (9th Cir. 2007) ... ..... .. .. ............................ .. ................ ................. .. .. .. ... ............... ..6

Sorrell v. IMS Health Inc.,131 S. Ct. 2653 (2011) ......... .. .. ..... ... . .. .......... .. .... ....... ..... .. .. .. .... .. .... ......... .. ... ............................. 1

Sunbelt Television, Inc. v. Jones Intercable, Inc.,795 F. Supp. 333 (C.D. Cal. 1992) ...... ............... .. .. .. ... ... .. ..................... .. .. .. .... .. ........ ...... ... ...... .

Tel/ado v. Time-Life Books, Inc.,

643 F. Supp. 904 (D.N.J. 1986) .... .. ... .... ................... ... .. ..... .... ..... .. .. .. .. ......... .. ........... .. .. .. ........ .. 1

United States v. Brown Univ.,5 F.3d 658 (3d Cir. 1993) .... .... .. .. ... ........... ..... .. .. ..... .... .. ... .. ... .. .. .... .... ... ... ....... ....... .. ..... .. ...... ..... .6

United States v . Laerdal Mfg. Corp.,73 F.3d 852 (9th Cir. 1995) ................. .. .. .. ................... ... .. ...... ....... ............... .... ........ ... ........ ... ..4

United States v. W T Grant Co.,345 u.s. 629 (1953) ........................... .... ... ..... .. .... .. ............................ ... ....... .... ....... ............ ... .. ..4

Villiarimo v. Aloha Island Air, Inc.,

281 F.3d 1054 (9th Cir. 2002) .... ..... ................ .... .. .. ........... .............. ... .. ... ... ... ... .... ....... ...... .. .. ... 6

Wisconsin Interscholastic Athletic Ass n v . Gannett Co. Inc.,658 F.3d 614 (7th Cir. 2011) .. .. ... ........ .... .. .. .. .. .. .. .. ..................... ............... ..................... ...... .... . 1

Yeti by Molly, td v. Deckers Outdoor Corp.,27 259 F.3d 1101 (9th Cir. 2001) .................. .. ... ....... ... .. .. .... . ... . .. ... ..... ..... ...... ..... ... ..... .. .... ... ..... ... ..5

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4:09-cv-1967 CW NC) - l l1 -ANTITRUST PLAINTIFFS COMBINED OPPOSITION TO

NCAA S MOTION FOR SUMMARY JUDGMENT AND REPLYISO MOTION FOR SUMMARY JUDGMENT



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GLOSS RY OF BBREVI TI ONS

Atlantic Coast Division I athletic conference

Antitrust Plaintiffs

Memorandum o f Points And Authorities In Support of Motion ByAntitrust Plaintiffs for Summary Judgment (Nov. 15, 2013) (Dkt.No. 898-1)

Big East Division I athletic conference

Big Ten Division I athletic conference

Big 12 Division I athletic conference

John Cummins Kirsten Hextrum, The Management o fIntercollegiate Athletics at UC Berkeley: Turning Points

Consequences (Nov. 2013) (presented by the Center for Studies inHigher Education at the University o f California at Berkeley),submitted as Exhibit 9 to the accompanying SupplementalDeclaration o f Hilary K. Scherrer

Andrew Zimbalist Allan Sack, Thoughts on Amateurism, TheO'Bannon Case And The Viability of College Sport (2013), issuedby the Drake Group, submitted as Exhibit 19 to the accompanyingSupplemental Declaration of Hilary K Scherrer

NCAA's Memorandum o f Points And Authorities In Support of

Motion for Summary Judgment; Opposition to Antitrust Plaintiffs'Summary Judgment Motion (Dec. 12, 2013) (Dkt. No. 926)

Rebuttal Expert Report of J. Michael Dennis, Ph.D (Nov. 5,2013) (Dkt. No. 925-16)

Reply Expert Report o f Daniel A Rascher (Nov. 5, 2013),submitted as Exhibit 8 to the accompanying SupplementalDeclaration o f Hilary K Scherrer

Declaration of Edwin S Desser, submitted as Exhibit 2 to the

accompanying Supplemental Declarationo f

HilaryK

Scherrer

Defendant Electronic Arts, Inc.

Exhibits to the accompanying Supplemental Declaration of HilaryK. Scherrer

NCAA Division I Football Bowl Subdivision

ANTITRUST PLAINTIFFS' COMBINED OPPOSITION TO- NCAA'S MOTION FOR SUMMARY JUDGMENT AND REPLY




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1 FCS NCAA Division I Football Championship Subdivision

2 GIAs Grants-in-aid

3KCR Knight Commission on Intercollegiate Athletics, College Sports

4 101 : A Primer on Money, Athletics and Higher Education in the

21st Century (2009), submitted as Exhibit 3 to the accompanying5 Supplemental Declaration o f Hilary K. Scherrer

6 MLB Major League Baseball

7NCAA Defendant National Collegiate Athletic Association

8NIL Name , image and likeness

9

10NR Expert Report on Liability Issues o f Roger G. Noll

(Sept. 25, 2013) (Dkt. No. 898-15)

NRR Reply Report on Liability Issues o f Roger G. Noll (Nov. 5, 2013)12 (Dkt. No. 898-1 0)

13 Pac-12 Pacific 12 Division I athletic conference

14 PD Declaration o f Hal Poret in Support o f Antitrust Plaintiffs'

15 Opposition to Defendant' s Motion for Summary Judgment , submitted as Exhibit 4 to the accompanying Supplemental

16 Declaration of Hilary K. Scherrer

17 PRR Rebuttal Expert Report ofNeal H . Pilson (Nov. 5, 2013) (Dkt.18

No. 932-3) (filed under seal)

19 RD Transcript o f Deposition o f Daniel Rubinfeld (Oct. 11, 2013)

20 RoP Right o f Publicity

21 RoR Rule of Reason

22RR Expert Report o f Daniel R . Rubinfeld Regarding Merits (Sept.

23 25, 2013) (Dkt. No. 925-8)

24 Expert Rebuttal Report o f DanielL Rubinfeld Regarding Merits

25(Nov. 5, 2013) (Dkt. No. 898-5) (filed under seal)

26RSR Declaration o f DanielL Rubinfeld (Dec. 12, 2013)

(Dkt. No. 925-6)27

SAs Student-athletes28

4:09-cv-1967 CW NC) - lANTITRUST PLAINTIFFS' COMBINED OPPOSITION TO

NCAA'S MOTION FOR SUMMARY JUDGMENT AND REPLYISO MOTION FOR SUMMARY JUDGMENT



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4:09-cv-1967 CW NC)

The Presidential Task Force On The Future f Division IIntercollegiate Athletics, The Second Century Imperatives:Presidential Leadership--Institutional Accountability (Oct. 2006)(Dkt. No. 898-36)

Southeastern Conference

Expert Report o f Ellen J. Staurowsky, Ed.D (Sept. 25, 2013)(Dkt. No . 898-20)

Expert Report o f Taylor Branch (Nov. 7, 2013) (Dkt. No. 898-28)

Final Report o f the NCAA Task Force on Commercial Activity inDivision I Intercollegiate Athletics--Addendum Supplement No . 6(Jan. 2009) (Dkt. No. 898-34)

University o f California at Berkeley

Declaration o f Mary Willingham, submitted as Exhibit 5 to theaccompanying Supplemental Declaration of Hilary K Scherrer

- l lANTITRUST PLAINTIFFS' COMBINED OPPOSITION TO




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1 I.

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PLAINTIFFS OPPOSITION TO NCAA'S SUMMARY JUDGMENT MOTION.

Live Broadcast Claims. The NCAA seeks summary judgment as to live broadcasts on

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the premise that the First Amendment bars the APs' antitrust claims. DM at 3-4. This argument,

however, ignores the fact that the APs are not seeking to enjoin any broadcasts. They are merely

seeking to enjoin rules that prohibit payment to current and former SAs for the use of their NILs,

which is in no way barred by the First Amendment. 1 Moreover, the NCAA cites no caselaw

supporting any such absolute bar. The case aw is clear that even i f enforcement of the Sherman

Act's prohibitions imp ose incidental restrictions on speech, they are permissible in order to

preserve a competitive marketplace. 2 The caselaw also makes it clear that the depiction of an

entire performance, even a sports performance, is not protected speech, even though the

performance may be of public interest. 3 Thus, the NCAA has failed to demonstrate, factually or

legally, that the issuance of the requested injunction wou ld infringe its First Amendment rights.

Contrary to the NCAA's assertion, game broadcasts are commercial speech. Determining

what is commercial speech depends upon considering a complex of factors, including the use of

advertisements, the economic motivations involved and the reference to a product; the presence

of all three support strongly a finding of commercial speech. 4 The NCAA has avoided this inquiry

and, instead makes arguments based on cases that are either inapposite or apply a different legalstandard from that used in this Circuit and followed by this Court. 5 These arguments must fail.1 Zacchini v Scripps-Howard Broad. Co., 433 U.S. 562, 576 (1977) ( Zacchini ) (holding theFirst Amendmen t did not protect a television station because the plaintiff does not seek to enjointhe broadcast of his performance; he simply wants to be paid for it ).2 Sorrell v IMS Health Inc., 131 S. Ct. 2653,2665 (2011) (quoting Giboney v Empire StorageIce Co., 336 U.S. 490, 502 (1949)); Sunbelt Television, Inc v. Jones Intercable, Inc., 795 F. Supp.333, 336 (C.D. Cal. 1992); In re Coordinated Pretrial Proceedings in Petroleum Prods. AntitrustLitig., No. MDL 150 AWT, 1992 WL 133093, at 1 (C.D. Cal. Apr. 30, 1992).3 Zacchini, 433 U.S. at 574-76; Wisconsin Interscholastic Athletic Ass'n v Gannett Co., 658 F.3d614, 624 (7th Cir. 2011); see also Tellado v Time-Life Books, Inc., 643 F. Supp. 904, 914 (D.N.J.

1986). Indeed , the presentation of an athletic event has been found to be on the periphery ofprotected speech . .. as opposed, for example, to po litical speech, which is at the core of firstamendment protection. Post Newsweek Stations-Connecticut, Inc v Travelers Ins Co., 510 F.Supp. 81 86 0. Conn. 1981); see generally DSD at ~ 1 5 2 5 .4 Bolger v Youngs Drug Prods . orp . 463 U.S. 60, 66 (1983); Hunt v City o Los Angeles, 638F.3d 703 , 715 (9th Cir. 2011) (relying on three-part analysis). The Court has accepted thisapproach and noted the fact-specific nature of the inquiry. In re NCAA Student-Athlete NameLikeness Licensing Litig., No. C 09-1967 CW, 2013 WL 5778233, a t *8-9 (N.D. Cal. Oct. 25,2013) ( NCAA ).5 As noted in Dryer v NFL, 689 F. Supp. 2d 1113, 1117-18 (D. Minn. 2010), which this Court

ANT I T Rusf L 9 . f / J 9 ( f F f P { l J J l l f4:09-cv-1967 CW (NC) - 1 - NCAA'S MOTION FOR SUMMARY JUDGM ENT AND REPLY




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1 As stated by former NCAA President Myles Brand ( Brand ),

As explained by Brand,

The NCAA also seeks to capitalize on increased commercial

8 activity corresponding to the expansion of sports media.

Neil Pilson, the

NCAA s expert, . PRR at 33; see also DSD at

12 ~ ~ 2 0 2 3 ;CSHER at 6-8.

3 This commercialization infects live game broadcasts at all levels. Games are festooned

14 with the names and logos o f corporate sponsors and stadia in which games are telecast bear

5 corporate names, all o f which are captured by the cameras during broadcasts. DSD at ~ 2 4 - 2 8

16 30. Advertisements appear on sideline banners, physically painted on football fields and

17 basketball courts, and digitally embedded into broadcasts. d. at2 3 .

Corporate names and logos18 appear digitally onscreen throughout broadcasts, and game commentators often acknowledge and

19 thank corporate sponsors. Jd Additionally, SAs are often human billboards bearing corporate

20 logos on their uniforms.7

Conference games and championships are also televised pursuant to

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Footnote continued from previous pagehas cited approvingly the California and fe deral cases on which the NCAA principally relies(DM at 4-5) did not follow this type of analysis and in several instances , involved facts that werein the public domain. Here , by contrast it is undisputed that telecasts o f the NCAA s Division I

men s football and basketball games are not in the public domain they are licensed exclusively tospecific networks under strict terms; and their copyrights are jealously guarded by Defendant andits members. Exs. 22-24.6 The NCAA s Task Force on commercialism in Division I Athletics in 2009 (many members o fwhich are among its current declarants), and its Task Force on the future o f Division I athletics in2006 have also made the point that Division I footbalL and basketball are highly commercialized.TFCAR at 3, 8; SCIR at 11, 32, 35, 37; Dkt. No. 922-13 at 2-3, 6-7 ; RR at ~ 1 1 6119. TheKnight Commission on Intercollegiate Athletics has made the same point. KCR at 6-8 , 21-22.7 As examples, in 2010, Reisman trophy winner Cam Newton had 5 Under Armour logosplastered all over his uniform and the restaurant chain Chick-fil-A had its logo displayed

4 :09-cv-1967 CW (NC)

Footnote continued on next pageANTITRUST PLAINTIFFS ' COMBINED OPPOSITION TO

NCAA ' S MOTION FOR SUMMARY JUDGMENT AND REPLYISO MOTION FOR SUMMARY JUDGMENT



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1 hugely lucrative exclusive broadcasting contracts , something hardly consistent with the notion

2 that these are news events in the public domain. DSD at ~ 4 1 4 3 .8 The NCAA has also negotiated

3 deals with corporate partners, often involving preferred product placement rights. 9 Dr. Richard

4 Southall ( Southall ) has conducted detailed analyses of samplings from the telecasts of the 2006

5 and 2011 March Madness tourneys and 2009 BCS. Exs. 10-12. The NCAA or BCS have policies

6 on what advertisements can be aired , both NCAA public service announcements and corporate

7 sponsor advertisements are televised during the games , and often messages introducing the latter

8 are made while SAs are on the field. See Ex. 12 at 692; Ex. 10 at 7; DSD at ~ 3 3 3 5 .As Southall

9 noted in connection with 2009 BCS games, [t]his increased integration of a network's

10 entertainment properties into a sport's broadcasts is consistent with the melding of sports and

11 entertainment. 10 Ex. 11 at 168. Thus , the live broadcasts at issue are indisputably used for

12 commercial purposes.

13 The commercial nature of the broadcasts is also demonstrated by the fact that every

14 participant in preparing and presenting the games for presentation is paid, except the SAs. None

15 of those payments are alleged to impair or impinge upon First Amendment rights. Neither would

16 payment to SAs have such an effect.

17 Injunctive Relief Regarding Videogames In July of2013, the NCAA announced it18 would not renew its videogame license with EA , citing the current business climate and costs of

19 litigation. Ex. 13. This fact does not moot the request for injunctive relief as to such products

20 that the NCAA now advances. DM at 5-6. A case is moot only i f is impossible for the court to

21 grant 'any effectual relief whatever ' to a prevailing party. hurch ofScientology o Cal v

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Footnote continued from previous page

prominently in kickoff games for four teams. Exs. 6-7. Contractsof

66 schools obtained throughopen records requests evidence the regular practice of having SAs display the logos of corporatesponsors on their uniforms during games. DSD at 5 5 ;see also SR at 31.8 Some conferences even have their own television networks. DSD at ~ ~ 4 6 5 1 .9 The NCAA also has a special corporate sponsor program consisting of two specific tiers ofmarketing and promotional rights--Corporate Champions and Corporate Partners. DSD at ~ 4 042. Sponsors get to use NCAA logos and have media placement, merchandising and on-site evento


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1 United States, 506 U.S. 9, 12 (1992). Even the possibility of only a partial remedy is sufficient to

2 prevent [a] case from being moot. d. at 13. Voluntary cessation of challenged conduct normally

3 does not deprive a federal court of the power to determine the legality of a practice. Friends o f he

4 Earth, Inc . v. Laidlaw Envtl. Servs. (FOC) , Inc., 528 U.S. 167 , 189 (2000) ("FoE'). Otherwise, a

5 defendant would be free to return to his old ways. United States v. W Grant Co. , 345 U .S.

6 629, 632 (1953). A defendant relying on cessation bears a heavy burden of showing the

7 curtailed conduct will not recur . FoE, 528 U.S. at 189. The NCAA has not met that burden. Its

8 renunciation was equivocally based on current conditions and it continues to insist it did no

9 wrong . An intransigent insistence on its own blamelessness undermines a defendant's assertion

10 ofmootness. United States v. La erdal Mfg. Corp., 73 F.3d 852, 856 (9th Cir. 1995). Thus, the

11 NCAA cannot prevail on this prong o f its summary judgment motion.

12 Claims of Individual Class Representatives. As to individual claims of class

13 representatives, the NCAA relies on three arguments. DM at 6-7. First, it contends that it is

14 undisputed that there is no restraint after SAs graduate. It is incorrect; this point is disputed.

15 Second , the NCAA contends that the damage claims of certain class representatives are barred on

16 limitations grounds. But that argument in no way precludes claims for injunctive relief; this Court

17 has held that the continuing violation doctrine applies to this case.2

Third, the NCAA argues that18 state laws governing RoP rights bar the claims of many class representatives. But this Court has

19 held that the restraint at issue is national in character and the only way claims could be precluded

20 would be if they were barred in every state. NCAA , 2013 WL 5778233, at *7. The NCAA has not

21 made such a showing . 13

22 II .

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THE NCAA S PROCOMPETITIVE JUSTIFICATIONS ARE DEFICIENT.

The NCAA argues that a quick look RoR analysis is inappropriate here and that its

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APM at 3. See Ex . 26 (BEC Commissioner Val Ackerman criticizing the NCAA's uses of SAs'NIL at issue in this litigation).

2O'Bannon v. NCAA, Nos. C 09-1967 CW, C 09-3329 CW, C 09-4882 CW, 2010 WL 445190,

at *5-6 (N.D. Cal. Feb. 8, 2010); Russell v. NCAA, No. C 11-4938 CW, 2012 WL 1747496, at 4IT 1 D Cal . May 16 , 2012 ).

3 For exampl e, it re lies on C al. Civil Code 3344(d), but that provision only precludes penaldama ges under tha t code sec tion for use ofNIL in a sports broadcast; it says nothing aboutinjunctive r e lief and its r emed ies are not intended to displace other RoP claims. d. 3344(g).

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procompetitive justifications should be presented at trial. DM at 8 Alternatively, it contends that

a quick look should be decided in its favor. d. at 7. In support of its effort to demonstrate

procompetitive justifications for the challenged restraint, the NCAA relies on: (a) the declarations

of22 conference or university personnel;14

(b) five declarations by its own employees; (c) expert

merits reports already discussed in the APM; (d) a new declaration (the RSR) by Daniel

Rubinfeld ( Rubinfeld ) that consists of more of the same argument but no new facts; and (e) the

survey discussed in the ORR that APs have moved to exclude and have argued should receive no

weight (APM at 11-13). These arguments are without merit and the proffered evidence suffers

from several overarching defects that cause it to have little or no value.

To begin with, a qu ick look raises a question of law suitable for determination by this

Court. Deutscher Tennis Bundv. TP Tour Inc., 610 F.3d 820 833 (3d Cir. 2010). This Court

will decide the propriety of injunctive relief, and, given the voluminous record before it, it has all

the tools to do so. Law v. NCAA, 134 F.3d 1010, 1012 (lOth Cir. 1998) ("Law") (affirming

summary judgment for plaintiff under quick look RoR). The NCAA, unlike its own expert (RR at

~ ~ 2 9 - 3 0argues that it is a presumptively permissible joint venture, not a cartel. That contention

is meritless; schools recruit SAs separately, so they are not engaging in joint venture activity.15

In

any event, the quick look has been applied to join t venture activity.16

The restraint is a nakedagreement by the NCAA and its members to suppress compensation to SAs for use of their NILs

to zero; consequently, it is an appropriate candidate for quick look treatmentY

The APs agree that the core question is whether the alleged precompetitive justifications

for the restraint make it essential to the existence of the product at issue. DM at 9. The mere fact

14The identities of these declarants were not revealed until after discovery closed and their

declarations should be stricken under Fed. R. Civ. P. 37(c)(1). Yeti by Molly, Ltd v. Deckers

Outdoor Corp., 259 F.3d 1101, 1106-07 (9th Cir. 2001); Oracle U.S.A., Inc. v. SAP AG, 264F.R.D. 541, 544-45 (N.D. Cal. 2009).15

NCAA v. Board o f Regents ofUniv. o f Okla., 468 U.S. 85, 113-14 (1984) ("BoR"); Law, 134F.3d at 1018.16

See e.g., Polygram Holding, Inc. v. FTC, 416 F.3d 29 37 (D.C. Cir. 2005) ("Polygram").17

See, e.g., BoR, 468 U.S. at 109; Agnew v . NCAA, 683 F.3d 328 337 (7th Cir. 2012); Law, 134F.3d at 1020. The NCAA also argues that the challenged restraint is presumptively lawfulbecause it supports amateurism. DM at 8 This argument is completely belied by the record and isderived from a reading of BoR that this Court does not deem persuasive. NCAA, 2013 WL5778233, at *6 n.6.

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that a restraint may be profitable or may maximize revenue or may ensure ticket sales or may

protect the value of a bran d or a contract is insufficient. 18 Moreover , merely offering a rationale

for a ... restraint will n ot suffice; the record must support a finding that the restraint ... does indeed

have a pro-competitive effect. Graphic Prods . Distribs. v. Itek Corp., 717 F.2d 1560, 1576 (11th

Cir. 1983) .

The NCAA s claimed procompetitive justifications are factually insufficient to satisfy its

burden . Genuine issues of fact sufficient to overcome a motion for summary judgment are not

created by ' uncorroborated and self-serving' testimony. 19 Likewise, [c]onclusory speculative

testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat

summary judgment. 20 Here, most of the NCAA ' s factual declarants make speculative predictions

on what might happen if the Court were to enter the requested injunction. That is not sufficient to

meet the NCAA s burden under Fed. R. Civ. P . 56(c)(4) . Its argument that the Court accepted

such predictions in connection with denying certification of a damage class (DM at 25) ignores

the procedural context of the present motion and the heavy burden that the NCAA must satisfy

to support its procomp etitive justifications. APM at 6.

The further problem with these declarations is mos t of them assume that the entry of an

injunction would promptly lead to a 50/50 split of revenue for live broadcasts.21

However, the18 See e.g . BoA, 468 U.S. at 116-17; Polygram , 416 F.3d at 38; Law, 134 F.3d at 1023; ChicagoProf ' Sports Ltd. P'ship v NBA, 754 F. Supp. 1336, 1359 (N .D. Ill 1991) , aff'd, 961 F.2d 667(7th Cir. 1992). Nor will justifications serving some broad societal goals suffice to justify arestraint. APM at 7 n.6 . The case of United States v Brown Univ., 5 F.3d 658 (3d Cir. 1993) isdistinguishable. There , unlike here, there was uncertainty as to whether the challenged restrainthad any price effects and the court noted the absence of any profit-maximizing purpose . d. at672,674.19 Villiarimo v. Aloha Island Air, Inc. , 281 F.3d 1054, 1061 (9th Cir. 2002) (citing Kennedy vAcfplause , Inc., 90 F.3d 1477, 1481 (9th Cir. 1996)).2 Soremekun v. Thrifty Payless , Inc . 509 F.3d 978, 984 (9th Cir . 2007) (citing Nel son v PimaCmty. Coli ., 83 F.3d 1075, 1081-82 (9th Cir. 1996)).21

See Dkt. Nos. 921-2 at ~ 1 3 - 1 4 ;921-4 at ~ 7 14; 921-4 at ~ 7 17; 921-5 at 1 3 ;921-8 at ~ 716-17; 921-9 at 1 6 ;922-10 at 1 6 ;922-1 at ~ 2 9 ;922-5 at 922-6 at 1 2 ;922-8 at 1 8 ;922-9at ~ 5 ;922-10 at ~ 5 ;922-11 at 1 5 ;925-7 at 6 It should be noted that declarants fr om theUniversity ofTexas and Wake Forest University have said that even i an inj un ction wer eentered, their schools might still not pay anything or anything si gn ifi can t to SAs f or u se of NIL.Dkt. Nos. 921-11 at 8 ; 922-6 at 1 2 Defendants' experts made similar arguments in opposingcertification of a damage class. Many of the factual declarants also assume that the APs areseeking pay to play or are engaging in a broad attack on the NCAA s amateurism rules. See , e.g.,Dkt. Nos. 921-2 at 921-4 at 7 ; 921-8 at 7 ; 921-11 at 7 ; 922-5 at 5 ; 922-9 at 5 That is notthe case. APM at 1; NRR at 17-19.

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1 APs are asking merely for a prohibitory injunction precluding the NCAA and its members from

2 agreeing to depress to zero compensation for use o SAs' NILs; they are not asking for a

3 m nd tory injunction commanding that the NCAA and its members must negotiate group

4 licenses that split broadcast revenues equally with SAs. Thus, the NCAA's declarations are based

5 largely on a false premise and should be accorded little weight. The NCAA's brief and

6 Rubinfeld ' s latest report repeat this error. DM at 18-19; RSR at 15.

7 Alleged Goal f Amateurism and Consumer Demand The NCAA contends that its

8 amateurism rules are essential to the existence o consumer demand, relying on scattered

9 consumer survey evidence, the primary example o which is the survey in the DRR to which the

10 APs have objected. DM at 12-17. This showing fails because: (a) intercollegiate sports is no

11 longer amateur in nature , as the NCAA itself has admitted ; (b) there is no evidence that the

12 challenged restraint is essential for the existence o consumer demand; and (c) the NCAA's

13 survey evidence on this issue is defective, misses the relevant issue , and does not accurately

14 reflect real-world consumer conduct.

15 The NCAA manual does not define the term amateur. SR at 44. For its first fifty years,

16 the NCAA's amateur rules were often disregarded ; its enactment o a Sanity Code in 1948 that

17 prohibited pay for performance was a dismal failure and the code was withdrawn in 1951.TBR at18 11-13; NR at 122. When Walter Byers became Executive Director, a renewed emphasis on SAs

19 as amateurs occurred, partly to ensure that they received no workers' compensation benefits. SR

20 at 25-26; CSHER at 7.

21 This concept o amateurism became harder to justify at the level o Division I men's

22 basketball and football, given the increased commercialization described above. By the decade o

23 the 2000s, Brand began replacing the notion o the amateur model with the collegiate model,

24 which was supposedly distinguishable from the model o professional sports. SR at 44. By 2009,

25 the NCAA's Commercialism Task Force mentioned above concluded that amateurism meant that

26 SAs could not financially benefit from their participation in intercollegiate athletics beyond their

27 GIAs and other forms o approved support allowed by NCAA regulations. TFCAR at 2. I t

28 acknowledged that the rise o commercialism had burdened the conscience o those who

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distinguished amateurism from monetary concerns, but noted that the NCAA's definition of

amateurism has almos t nothing to say about compensation and everything to say about

motivation. d. at 4. Thus, the Task Force concluded that while participation is to be an

avocation for students, college sports as an enterprise is a professional undertaking for everyone

else. Furthermore, the generating of revenues must be guided by the same business principles as

any commercial entity . d. Or, as Brand put it in a paradigm of circular reasoning, SAs are not

paid because they are amateurs and are amateurs because th ey are not paid. SR at 45. The NCAA

adheres to this position, even though Division I men's football and basketball are conceded to

look like and be promoted much like their professional counterparts. See TFCAR at 8; Dkt. No.

922-13; Ex. 1 at 3.

Of course, what constitutes pay is up to the discretion of the NCAA and its members.

SR at 46. SAs who participate in BCS games get $950 in participation awards while SAs

playing in the non-BCS Belk Bowl , to use one example, get a free watch and a prepaid debit card

that they can use at Belk stores. DRRR at ~ 1 1 1Players in BCS bowls also get numerous gifts

such as televisions, electronic tablets, Apple iPads, mountain bikes, recliners and so on. d. at

~ 1 1 2 ;DGR at 5. 22 All three military academies in Division I pay salaries to SAs and their games

are highly popular. DRRR at1 1 3

Staurowsky goes into great detail about the types of paymentsthe NCAA already gives to SAs that are somehow not perceived to compromise its conception of

amateurism. SR at 47-52.

These are the forms of compensation that are op enly permitted. The fact is that despite the

NCAA's pronouncements of amateurism, many colleges and universities also give secret

compensation to SAs in violation of the NCAA's rules. Every other month seems to bring news

of a new scandal involving secret payments to SAs. See CSHER at 22 ( [t]he pressure to win,

without any checks-and-balances, creates a campus culture tolerant of athletic teams disobeying

NCAA regulation ). This is a long tradition. In the 1980s, at least 57% of 106 NCAA Division I

A football teams violated the limited compensation rules and from 1952 to 1985, the NCAA

22 See Ex. 14 (hyperlink to video of University of Missouri players responding to a parade of giftsfor their appearance in the 2013 Cotton Bowl).

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1 imposed sanctions on 30 of 33 Division I national championship basketball programs for

2 violating its amateurism rules. Ex. 15 at 1313. As one commentator has noted, 'it would be naive

3 to suppose that simply the pretense of maintaining the amateur ideal is essential to continuing the

4 current system. ' /d at 1312 (emphasis in original).

5 In light of all of the foregoing, the Drake Group, an independent entity concerned with

6 academic integrity in collegiate sports, concluded in its 2013 report on this litigation, [i]n short,

7 amateurism in intercollegiate athletics is whatever the NCAA says it is. The NCAA maintains its

8 own, idiosyncratic, changing, frequently arbitrary , and often illogical definition of amateurism.

9 NCAA restrictions on college athletes'free participation in the lucrative market for their images,

10 likenesses nd names are obviously not necessary to uphold the principles o f amateurism, which

11 are constantly changing to meet industry needs. DGR at 7 (emphases added). Or , as John

12 Marinatto put it more succinctly when he resigned as Commissioner of the BEC in July of2012,

13 [c]learly, the collegiate model is dead. Ex. 16.

14 The NCAA's consumer survey evidence does not support a contrary view for several

15 reasons. First, the surveys measure the wrong market. The challenged restraint operates primarily

16 in the market for the acquisition of SAs' labor services; the consumers in that market are colleges ,

17 not viewers of Division I men 's football or basketball.23

So , any analysis of the procompetitive18 effects ofthe challenged restraint should focus on such colleges, which the NCAA's surveys

19 make no attempt to do. Second, the survey evidence is riddled with flaws that should cause it to

20 be given little weight. 24

21 Finally, the survey results are counterintuitive and not reflective of what people actually

22 do. Fans of Division I football and basketball are unlikely to abandon those sports because SAs

23 are paid for use of their NILs. If such fans were disgusted by the commercialism of amateur

24 sports, they would logically have ceased watching them long ago in the face of coaches being

25 paid millions of dollars, the rampant commercialization of game telecasts, the repeated scandals

26 23 See, e .g. Banks v . NCAA, 977 F.2d 1081, 1098 (7th Cir. 1992) (Flaum, J , concurring in partand dissenting in part); In re NCAA Walk-On Football Players Antitrust Litig., 398 F Supp. 2d

27 1144, 1151 (W.D. Wash. 2005); Law v. NCAA, 902 F Supp. 1394, 1406 (D. Kan. 1995), aff'd,134 F.3d 1010 (lOth Cir. 1998); Ex. 17 at 366-68 (2005 law review article).

28 24 See APM at 9-12; PD at ~ ~ 1 3 3 3 .

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1 of SAs being paid under the table by colleges and universities, and the television contracts that

2 match what is done with professional sports leagues. See NR at 144; DRRR at ~ ~ 1 2 2 2 8 .Indeed,

3

,

Yet, despite these perceptions, consumer demand for Division I football and basketball has

not decreased over the last decade. Similarly, as Plaintiffs' expert Dr. Daniel Rascher has noted,

2 fans still flocked to watch Ohio State University play in the 2010 Sugar Bowl despite the fact that

3 six of its SAs had been fined for profiting from the sale of championship memorabilia and the

4 2013 game in which Texas A&M's Johnny Manziel was suspended for one half for allegedly

5 commercializing his NIL finished 61% above the average ESPN rating for comparable telecasts.

6 DRRR at ~ 1 1 9 2 0 ;see also CSEHR at 8 ( the public, surfeited with scandals of all kinds, has

7become inured to intercollegiate athletic scandals while enjoying more and more the

8 entertainment value of the big-time sports ). Likewise, after free agency was introduced in MLB

9 in 1976, numerous consumer surveys appeared that said fans deemed higher player salaries to be

20 excessive or problematic, yet MLB revenues continued to climb steeply. DRRR at ~ ~ 1 3 1 3 5 .Put

2 simply, surveys about what consumers might do i f SAs were paid are of.little value in

22 determining what those individuals would actually do. d. at ~ 1 3 4 .

23 Alleged Competitive Balance The NCAA contends that the challenged restraint is

24 essential for promoting the goal of competitive balance across teams and conferences, citing the

25 opinions o f its various declarants. DM at 17-20. It offers no meaningful support for this

26 contention; it is instead undermined by the statements of the NCAA's own executives and by the

27 uncontested facts summarized by Plaintiffs ' expert Dr. Roger Noll ( Noll ) and others.

28 NCAA President Mark Emmert ( Emmert ) has said publicly that some colleges have

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1 huge or stunning competitive advantages that have persisted over four decades. NR at 137.

2 Bob Bowlsby, Commissioner ofthe Big 12 and one ofthe NCAA's own declarants, has said

3 (contrary to his declaration crafted for this lawsuit) that ' [t]he concept of competitive equity

4 through rules management is largely a mirage. It hasn't worked at any level.' ld; see also APM

5 at 17 (citing other examples). An August 2011 report on the NCAA's financial sustainability

6 shows wide disparities in revenues and expenses among Division I basketball and football teams

7 and concluded that there is already significant disparity in competition, with teams from the six

8 major FBS conferences dominating competition on the field. Dkt. No. 898-30 at 4. The Knight

9 Commission has made a similar point in a 2009 report. KCR at 8 12, 16-17. The NCAA's expert,

10 Rubinfeld, does not respond to this evidence.

11 Other economists are in accord about existing competitive imbalance. Dkts. No. 898-31

12 32. Noll (NR at 139-40, NRR at 40, 49) relied on an in:fluential2007 economic article from Dr.

13 Jim Peach ( Peach ) (on which Rubinfeld has relied as well (RR at 42 n. 158)), who showed that

14 from 1950-2005, only 13 teams accounted for more than 50% ofthe top eight college football

15 teams identified by Associated Press. Dkt. No. 898-32 at 5 . For college basketball during the

16 same period , only 13 teams dominated the rankings. ld. at 6. As Peach concluded , [i]n brief , the

17distribution at the top in four major NCAA men's sports is highly concentrated and there is no

18 apparent trend that competitive balance in these sports is improving as a result o f NCAA imposed

19 regulations. ld. at 7 (emphasis added). Dr . E. Woodrow Eckard made a similar point in his 1998

20 economic article on the NCAA cartel and competitive balance in college football, saying that the

21 NCAA's amateurism rules have produced more stability (less 'churning') in conference standing

22 and national rankings. ld. at 34 (emphases added).

23 Rubinfeld in his initial merits report invoked competitive balance with no citations to

24 economic studies. RR at 40-41. In his latest report, he states his disagreement with the many

25 economists who have found no relationship between the restraint and competitive balance, but

26 offers no supporting facts for his opinion. RSR at ~ 2 2 3 8 .As the Drake Group has noted in its

27 report on this litigation, the NCAA's policies o not promote competitive balance and sharing

28 licensing income with its current (via trust funds) nd ormer athletes would be completely

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compatible with maintaining the current financial standing o ntercollegiate athletic programs,

2 provided the NCAA took appropriate measures to reduce waste and inefficiency. DGR at 7

3 (emphases added).

4 In sum , the challenged restraint has perpetuated a competitive imbalance. What the

5 NCAA and its declarants are saying is that they fear that an injunction would exacerbate

6 competitive imbalance , but that is not a valid procompetitive justification. Law, 134 F.3d at

7 1024.

8 Alleged Integration o Athletics and Education Nor is there any showing that the

9 challenged restraint is essential to integrating education and athletics. The NCAA relies primarily

10 on self-serving statements by its declarants. DM at 20-22. t has made no such showing, however,

11 and it ignores the uncontested facts set out in the NCAA's own documents and in Staurowsky's

12 declaration that show the challenged restraint has had no beneficial effect on integration.

3 The NCAA ' s own SCIR expressed concerns about athletic directors becom[ing] more

14 and more isolated from the issues of the academy, the educational value of athletic

15 participation playing a secondary role to the win-loss column, the erosion of the bond

16 between athletics and academics, and the islandization of athletics. SCIR at 32, 34 . The report

17candidly admitted that rules supporting a level playing field may not match the ideals

ofstudent-

IS athlete well-being and that SAs can be disadvantaged by the concern for competitive

19 balance d. at 52. According to the NCAA's own statistics , FBS athletes spent 43.3 hours weekly

20 on athletic activities in season. SR at 26 The similar number for men's basketball players was

21 39.6 hours. d. As Emmert has conceded, these hours represent SAs working on their sport . d.

22 at 30 25 This work is to the obvious detriment of their academic performance.

23 As noted in a Duke University strategic report cited by Staurowsky , the timing of games is

24 dictated by television executives; for example, basketball players often play weekday games at 9

25 p.m., so the potential impact on academic work is obvious. d. at 31. Shane Battier , an NBA

26 player, testified before Congress in 2011 that the demands on his time and attention as a college

27 25 This level ofwork is in violation ofNCAA Bylaw 2.14, which contemplates that an SA willspend 20 hours weekly on sports activities during a season , so the NCAA and its members utilize

28 a series of creative schemes to circumvent the rule. SD at 27-29.

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1 player far exceeded those he faces as a professional athlete .. .. d.; see also Ex. 25 at 11.

2 These types o f demands have adverse consequences for the education of SAs. One tutor at

3 the University of Georgia described football players slumped over and catching a rare opportunity

4 for sleep; '[t]utors had a hard time motivating their students . ' SR at 32. Another SA said that a

5 common perception was that athletic directors could care less i f an SA got a degree. d.

6 This football first mentality has also led to widespread cheating and corruption of

7 academics at major colleges and universities. For example, at Oklahoma State University between

8 2000 and 2011, coursework was routinely done for players by tutors or university staff members,

9 players were given answers to exams before they were scheduled to be taken, players received

10 grades they had done little if any work to earn, and players were directed into easy courses and

11 majors. d. An internal investigation at the University ofNorth Carolina-Chapel Hill revealed

12 similar fraud, including a tutor writing papers for football players and widespread improprieties in

13 the Department of African-American Studies, such as unauthorized grade changes, forged

14 faculty signatures on grade roles, and courses conducted with limited or no class time . . .. d. at

15 42; see also WD at -r -rS-16. SAs are often clustered into courses that may well result in

16 devaluations oftheir college degrees. SR at 42-44.

17 The effectof

these typesof

practices is that Division I men's football and basketball18 players do not have the graduation rates of other SAs or of non-athletes. d. at 35. Looking at the

19 federal graduation rates for those who enrolled as first-year students in 2005 , the figures for the

20 general student body, FBS players and men's basketball players were 63%, 59% and 49%,

21 respectively. d. The NCAA's own staff concluded in 2012 that [i]n the sports of men's

22 basketball and FBS football, the overall rates lag behind the rates of males in the student body.

23 d. Alternative measurement methodologies such as the Graduation Success Rate or the

24 Adjusted Graduate Gap yield similar overall results. d. at 36-37. I f the comparison is made

25 with the graduation rates of all athletes in all NCAA divisions, the shortfalls for Division I

26 football and basketball players are, respectively, 6% and 18%. The adverse impact is felt

27 disproportionately by black male SAs. A study for the period 2007-10 noted that blacks

28 represented 57.1% ofthe SAs on football teams and 64.3% ofthose on basketball teams, but

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[a]cross four cohorts, 50.2% of black male athletes graduated within six years, compared to

2 66.9% of athletes overall, 72.8% of undergraduate students overall, and 55.5% of black

3 undergraduate men overall. d. at 36; see also CSHER at 20 (UCB graduation rate for black SAs

4 as low as 18-30%).

5 Thus, the NCAA has not shown that the challenged restraint is essential to integration.

6 Alleged Support for Women s And Other Men s Sports. The NCAA next surmises that

7 compensating Class members for use of their NILs would have a drastic adverse effect on the

8 support colleges and universities could provide to women's and less prominent men's sports. DM

9 at 22-25. This alleged benefit, however, exists in a market different from that in which the

10 restraint operates and should not be considered. APM at7 n.7. Moreover, this argument hinges on

11 the assumption that the current rules are essential to maintaining that goal. The evidence

12 conclusively demonstrates otherwise.

13 For example, an April28, 2010 memorandum from Jocelyn Potuto , President of lA

14 Faculty Representatives to the NCAA's Board of Directors, noted that many institutions are

15 increasingly resorting to cutting sports: more than 200 have been eliminated in the last three

16 years. Ex. 20 at 6. This practice has continued since 2010. 26 Brand has said

. Ex. 25 at14

Thus , the challenged restraint is not essential to18 preserving women's and less prominent men's sports and any claim that abolition of it might

19 merely exacerbate present inequities is a legally insufficient justification.

20 As for the contention that compensating Class members for use of their NILs will lead to

21 more cutting of other sports , this argument wrongly assumes a 50/50 revenue split is dictated by

22 any injunction. In any event, given the vast amounts spent on Division I coaching staffs and

23 hugely expensive football/basketball facilities (SR at 24-25; KCR at 12 16-17; DRRR at ~ 7

24 77; DGR at 13-15), some cost-cutting and reallocation of saved money is entirely possible. In

25 addition, the NCAA has the ability to reallocate money obtained from the annual March Madness

26 basketball tournament. As noted in the DGR, considering 2011-12 figures, $368.2 million, or

27 26 On December 22, 2013, it was reported that Temple University decided to cut men's andwomen's crew and five other varsity sports; similar cuts were made the University of Maryland

28 and six by Rutgers University in 2012. Ex. 21; see also Appendix (listing many examples).

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1 78.8 percent of the total NCAA distribution, is allocated according either to success in the March

2 basketball tournament or to the size of the athletic program and its scholarships. The second

3 largest amount is the $122.7 million allocated to the scholarship fund, which strongly favors FBS

4 programs where 85 full football grants-in-aid are allowed. This distribution means that money

5 generated in the sport o f basketball is going to support football programs, which appears to make

6 neither logical nor educational sense. DGR at 12 (emphasis added). Certainly, some ofthis

7 distribution could be restructured, i f necessary, to preserve other sport programs.

8 Allegedly Increased Output The NCAA argues that the effect of the challenged restraint

9 has been to increase output by every conceivable measure. DM at 24-25. However, from the

10 perspective of the labor input market, the undisputed evidence is that output has decreased. As

11 noted above, the NCAA has discontinued its licensing contract with EA; no NCAA-themed

12 videogames are now being produced. The NCAA used to sell numbered jerseys on its website

13 searchable with reference to the names of SAs; it has now curtailed that practice as well,

14 admitting that it was acting hypocritically. NRR at 86 n.79; see also NR at 44-45 (noting

15 NCAA's cutback in the number of scholarships given to SAs who play Division I men's football

16 and basketball). These are all output-reducing results caused by the NCAA's rules.

17 Eveni f

one took a broader viewof

the markets in which the restraint operates, the effect18 of the rules have been to lower output or to be output-neutral. In the oral argument before the

19 United States Supreme Court in BoR, the NCAA's counsel, Frank Easterbrook, admitted candidly

20 that [w]hen the NCAA says, we are running programs of amateur football, it is probably

21 reducing its net profits. It might be able to get more viewers nd so on i t h d semi-professional

22 clubs rather than amateur clubs. DRRR at 3 6(emphases added .Z7

23 Less Restrictive Alternatives Even i f any of these precompetitive justifications were

24 deemed meritorious, less restrictive alternatives exist (APM at 7 n.7), which the NCAA ignores.

25

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28See also Dkt. No. 898-11 at 455 (Rubinfeld's textbook stating that the NCAA cartel reduces

number of games played).

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1 Dated: January 13, 2014

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4:09-cv-1967 CW (NC)

Respectfully submitted ,

By: Is/ Michael P Leh ma nn

Michael P. Lehmann (Cal. Bar No. 77152)Arthur N. Bailey, Jr. (Cal. Bar No. 248460)HAUSFELD LLP44 Montgomery St., 34th FloorSan Francisco , CA 94104Telephone: (415) 633 -1908Facsimile: ( 415) 358-4980E-mail: [email protected]

[email protected]

Michael D. Hausfeld (pro hac vice)Hilary K Scherrer (Cal. Bar No. 209451)Sathya S Gosselin (Cal. Bar. No. 269171)HAUSFELD LLP

1700 K Street,NW

, Suite 650Washington, DC 20006Telephone: (202) 540-7200Facsimile: (202) 540-7201E-mail: [email protected]

[email protected]@hausfeldllp.com

Plaintiffs Class Counsel with PrincipalResponsibility or the Antitrust Claims

Renae SteinerVincent J. EsadesHEINS MILLS OLSON, P.L.C.31 0 Clifton A venueMinneapolis, N 55403Telephone: (612) 338-4605Facsimile: (612) 338-4692Email: [email protected]

[email protected]

Steven J. GreenfogelLITE DEPALMA GREENBERG, LLC1521 Locust Street , 7th FloorPhiladelphia, P A 19102Telephone: (973) 877-3819Email: [email protected]

- 6 ANTITRUST PLAINTIFFS COMBINED OPPOSITIONTO

NCAA S MOTION FOR SUMMARY JUDGMENT AND REPLYISO

MOTIONFOR

SUMMARY JUDGMENT



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4:09-cv-1967 CW (NC)

Eric B. Fast iff (Cal. Bar No. 182260)Brendan P. Glackin (Cal. Bar No. 199643)Katherine C. Lubin (Cal. Bar No. 259826)LIEFF CABRASER HEIMANNBERNSTEIN, LLP275 Battery Street, 29th FloorSan Francisco, CA 94111-3339Telephone: (415) 956-1000Facsimile: (415) 956-1008Email: [email protected]

[email protected]@lchb.com

Allan Steyer (State Bar No. 1 00318)D. Scott Macrae (State Bar No. 104663)STEYER LOWENTHAL BOODROOKASALVAREZ SMITH LLPOne California Street, Third FloorSan Francisco, CA 94111Telephone: (415) 421-3400Facsimile: (415) 421-2234Email: [email protected]

[email protected]

Additional Plaintiffs Counsel on the rief

- 7ANTITRUST PLAINTIFFS COMBINED OPPOSITION TO

NCAA S MOTION FOR SUMMARY JUDGMENT AND REPLYISO MOTION FOR SUMMARY JUDGMENT



26/30

APPENDIX

SCHOOL &

CONFERENCE

SPORTS ELIMINATED DATE OF

ELIMINATION

SOURCE

Temple University -American AthleticConference

BaseballSoftballMens CrewWomens RowingMens GymnasticsMens Indoor TrackMens Outdoor Track

2014 http://temple-news.com/news/2013/12/06/university-eliminate-seven-intercollegiate-sports/ (Ex. 27)

University of Maryland Atlantic CoastConference

Mens SwimmingWomens SwimmingMens TennisWomens Water PoloAcrobatics & Tumbling

Mens Cross-CountryMens Indoor Track

2012 http://www.washingtonpost.com/sports/maryland-cuts-seven-sports-on-sad-day-in-college-park/2012/07/02/gJQAqJFBJW_story.html (Ex. 28)

Towson University Colonial AthleticConference

BaseballMens Soccer

2013 http://articles.baltimoresun.com/2013-03-08/business/bal-towson-president-decides-to-cut-baseball-mens-soccer-20130308_1_maravene-loeschke-towson-president-towson-officials (Ex.29)

Robert MorrisUniversity NortheastConference

Mens Indoor TrackMens Outdoor TrackMens Cross CountryMens TennisWomens Field HockeyWomens GolfWomens Tennis

2013 http://www.wpxi.com/news/sports/college/robert-morris-university-eliminating-7-ncaa-divisi/nb93d/ (Ex.30)

Mount St. MarysUniversity NortheastConference

Mens SoccerMens GolfWomens Golf

2013 http://www.soccerwire.com/news/college/ncaa-d1-men/division-i-mount-st-marys-latest-to-announce-elimination-of-mens-soccer-program/ (Ex. 31)

University of Richmond Atlantic 10

Conference

Mens SoccerMens Track

2012 http://thecollegianur.com/2012/09/27/community-not-accepting-soccer-and-

track-cuts-without-a-fight/28740/ (Ex.32)

Rutgers University American AthleticConference

Mens H. Weight CrewMens L. Weight CrewMens FencingWomens FencingMens SwimmingMens Tennis

2007 http://sports.espn.go.com/ncaa/news/story?id=2519938 (Ex. 33)

http://temple-news.com/news/2013/12/06/university-eliminate-seven-intercollegiate-sports/http://temple-news.com/news/2013/12/06/university-eliminate-seven-intercollegiate-sports/http://temple-news.com/news/2013/12/06/university-eliminate-seven-intercollegiate-sports/http://temple-news.com/news/2013/12/06/university-eliminate-seven-intercollegiate-sports/http://temple-news.com/news/2013/12/06/university-eliminate-seven-intercollegiate-sports/http://www.washingtonpost.com/sports/maryland-cuts-seven-sports-on-sad-day-in-college-park/2012/07/02/gJQAqJFBJW_story.htmlhttp://www.washingtonpost.com/sports/maryland-cuts-seven-sports-on-sad-day-in-college-park/2012/07/02/gJQAqJFBJW_story.htmlhttp://www.washingtonpost.com/sports/maryland-cuts-seven-sports-on-sad-day-in-college-park/2012/07/02/gJQAqJFBJW_story.htmlhttp://www.washingtonpost.com/sports/maryland-cuts-seven-sports-on-sad-day-in-college-park/2012/07/02/gJQAqJFBJW_story.htmlhttp://www.washingtonpost.com/sports/maryland-cuts-seven-sports-on-sad-day-in-college-park/2012/07/02/gJQAqJFBJW_story.htmlhttp://www.washingtonpost.com/sports/maryland-cuts-seven-sports-on-sad-day-in-college-park/2012/07/02/gJQAqJFBJW_story.htmlhttp://articles.baltimoresun.com/2013-03-08/business/bal-towson-president-decides-to-cut-baseball-mens-soccer-20130308_1_maravene-loeschke-towson-president-towson-officialshttp://articles.baltimoresun.com/2013-03-08/business/bal-towson-president-decides-to-cut-baseball-mens-soccer-20130308_1_maravene-loeschke-towson-president-towson-officialshttp://articles.baltimoresun.com/2013-03-08/business/bal-towson-president-decides-to-cut-baseball-mens-soccer-20130308_1_maravene-loeschke-towson-president-towson-officialshttp://articles.baltimoresun.com/2013-03-08/business/bal-towson-president-decides-to-cut-baseball-mens-soccer-20130308_1_maravene-loeschke-towson-president-towson-officialshttp://articles.baltimoresun.com/2013-03-08/business/bal-towson-president-decides-to-cut-baseball-mens-soccer-20130308_1_maravene-loeschke-towson-president-towson-officialshttp://articles.baltimoresun.com/2013-03-08/business/bal-towson-president-decides-to-cut-baseball-mens-soccer-20130308_1_maravene-loeschke-towson-president-towson-officialshttp://www.wpxi.com/news/sports/college/robert-morris-university-eliminating-7-ncaa-divisi/nb93d/http://www.wpxi.com/news/sports/college/robert-morris-university-eliminating-7-ncaa-divisi/nb93d/http://www.wpxi.com/news/sports/college/robert-morris-university-eliminating-7-ncaa-divisi/nb93d/http://www.wpxi.com/news/sports/college/robert-morris-university-eliminating-7-ncaa-divisi/nb93d/http://www.soccerwire.com/news/college/ncaa-d1-men/division-i-mount-st-marys-latest-to-announce-elimination-of-mens-soccer-program/http://www.soccerwire.com/news/college/ncaa-d1-men/division-i-mount-st-marys-latest-to-announce-elimination-of-mens-soccer-program/http://www.soccerwire.com/news/college/ncaa-d1-men/division-i-mount-st-marys-latest-to-announce-elimination-of-mens-soccer-program/http://www.soccerwire.com/news/college/ncaa-d1-men/division-i-mount-st-marys-latest-to-announce-elimination-of-mens-soccer-program/http://www.soccerwire.com/news/college/ncaa-d1-men/division-i-mount-st-marys-latest-to-announce-elimination-of-mens-soccer-program/http://thecollegianur.com/2012/09/27/community-not-accepting-soccer-and-track-cuts-without-a-fight/28740/http://thecollegianur.com/2012/09/27/community-not-accepting-soccer-and-track-cuts-without-a-fight/28740/http://thecollegianur.com/2012/09/27/community-not-accepting-soccer-and-track-cuts-without-a-fight/28740/http://thecollegianur.com/2012/09/27/community-not-accepting-soccer-and-track-cuts-without-a-fight/28740/http://sports.espn.go.com/ncaa/news/story?id=2519938http://sports.espn.go.com/ncaa/news/story?id=2519938http://sports.espn.go.com/ncaa/news/story?id=2519938http://sports.espn.go.com/ncaa/news/story?id=2519938http://sports.espn.go.com/ncaa/news/story?id=2519938http://thecollegianur.com/2012/09/27/community-not-accepting-soccer-and-track-cuts-without-a-fight/28740/http://thecollegianur.com/2012/09/27/community-not-accepting-soccer-and-track-cuts-without-a-fight/28740/http://thecollegianur.com/2012/09/27/community-not-accepting-soccer-and-track-cuts-without-a-fight/28740/http://www.soccerwire.com/news/college/ncaa-d1-men/division-i-mount-st-marys-latest-to-announce-elimination-of-mens-soccer-program/http://www.soccerwire.com/news/college/ncaa-d1-men/division-i-mount-st-marys-latest-to-announce-elimination-of-mens-soccer-program/http://www.soccerwire.com/news/college/ncaa-d1-men/division-i-mount-st-marys-latest-to-announce-elimination-of-mens-soccer-program/http://www.soccerwire.com/news/college/ncaa-d1-men/division-i-mount-st-marys-latest-to-announce-elimination-of-mens-soccer-program/http://www.wpxi.com/news/sports/college/robert-morris-university-eliminating-7-ncaa-divisi/nb93d/http://www.wpxi.com/news/sports/college/robert-morris-university-eliminating-7-ncaa-divisi/nb93d/http://www.wpxi.com/news/sports/college/robert-morris-university-eliminating-7-ncaa-divisi/nb93d/http://articles.baltimoresun.com/2013-03-08/business/bal-towson-president-decides-to-cut-baseball-mens-soccer-20130308_1_maravene-loeschke-towson-president-towson-officialshttp://articles.baltimoresun.com/2013-03-08/business/bal-towson-president-decides-to-cut-baseball-mens-soccer-20130308_1_maravene-loeschke-towson-president-towson-officialshttp://articles.baltimoresun.com/2013-03-08/business/bal-towson-president-decides-to-cut-baseball-mens-soccer-20130308_1_maravene-loeschke-towson-president-towson-officialshttp://articles.baltimoresun.com/2013-03-08/business/bal-towson-president-decides-to-cut-baseball-mens-soccer-20130308_1_maravene-loeschke-towson-president-towson-officialshttp://articles.baltimoresun.com/2013-03-08/business/bal-towson-president-decides-to-cut-baseball-mens-soccer-20130308_1_maravene-loeschke-towson-president-towson-officialshttp://www.washingtonpost.com/sports/maryland-cuts-seven-sports-on-sad-day-in-college-park/2012/07/02/gJQAqJFBJW_story.htmlhttp://www.washingtonpost.com/sports/maryland-cuts-seven-sports-on-sad-day-in-college-park/2012/07/02/gJQAqJFBJW_story.htmlhttp://www.washingtonpost.com/sports/maryland-cuts-seven-sports-on-sad-day-in-college-park/2012/07/02/gJQAqJFBJW_story.htmlhttp://www.washingtonpost.com/sports/maryland-cuts-seven-sports-on-sad-day-in-college-park/2012/07/02/gJQAqJFBJW_story.htmlhttp://www.washingtonpost.com/sports/maryland-cuts-seven-sports-on-sad-day-in-college-park/2012/07/02/gJQAqJFBJW_story.htmlhttp://temple-news.com/news/2013/12/06/university-eliminate-seven-intercollegiate-sports/http://temple-news.com/news/2013/12/06/university-eliminate-seven-intercollegiate-sports/http://temple-news.com/news/2013/12/06/university-eliminate-seven-intercollegiate-sports/http://temple-news.com/news/2013/12/06/university-eliminate-seven-intercollegiate-sports/


27/30

Boston University Patriot League

Wrestling 2014 http://www.examiner.com/article/no-4-story-of-2013-boston-university-to-kill-wrestling-program-after-2013-14 (Ex. 34)

University of Nebraska

Big 10

Wrestling 2011 http://www.examiner.com/article/neb

raska-omaha-wins-3d-straight-ncaa-d2-mat-title-then-program-gets-the-axe (Ex. 35)

University ofWashington PAC-12Conference

Mens SwimmingWomens Swimming

2009 http://seattletimes.com/html/sports/2009157966_budgetcuts02.html (Ex. 36)

University ofMassachusetts Atlantic 10 Conference

Mens SkiingWomens Skiing

2009 http://usatoday30.usatoday.com/sports/olympics/2009-04-02-4074405284_x.htm (Ex. 37)

University ofMassachusetts Atlantic 10 Conference

Womens VolleyballMens Water PoloWomens Water PoloMens GymnasticsWomens GymnasticsMens TennisMens Indoor Track

2002 http://www.umassathletics.com/sports/m-itrack/spec-rel/031102aaa.html (Ex. 38)

Pepperdine WestCoast Conference

Mens TrackWomens Swimming

2009-10 http://usatoday30.usatoday.com/sports/olympics/2009-03-03-2368858001_x.htm (Ex. 39)

University of Maine

America EastConference

Mens Soccer

Womens Volleyball

2009 http://www.soccer-new-

england.com/UMaine-Cuts-Mens-Soccer-Program.html (Ex. 40)

University of Vermont America EastConference

BaseballSoftball

2009 http://collegesportsinfo.com/2009/02/20/vermont-cutting-baseball-and-softball/ (Ex. 41)

Quinnipiac University Metro Atlantic AthleticConference

Mens GolfWomens VolleyballMens Outdoor Track

2009 http://bleacherreport.com/articles/182405-title-ix-in-full-force-quinnipiac-forced-to-keep-womens-volleyball (Ex.42)

Hofstra University Colonial AthleticConference

Football 2009 http://www.nydailynews.com/sports/college/hofstra-university-drops-football-team-due-lack-funds-interest-article-1.432171 (Ex. 43)

Cleveland StateUniversity HorizonConference

Baseball 2011 http://www.wksu.org/news/story/28270 (Ex. 44)

http://www.examiner.com/article/no-4-story-of-2013-boston-university-to-kill-wrestling-program-after-2013-14http://www.examiner.com/article/no-4-story-of-2013-boston-university-to-kill-wrestling-program-after-2013-14http://www.examiner.com/article/no-4-story-of-2013-boston-university-to-kill-wrestling-program-after-2013-14http://www.examiner.com/article/no-4-story-of-2013-boston-university-to-kill-wrestling-program-after-2013-14http://www.examiner.com/article/nebraska-omaha-wins-3d-straight-ncaa-d2-mat-title-then-program-gets-the-axehttp://www.examiner.com/article/nebraska-omaha-wins-3d-straight-ncaa-d2-mat-title-then-program-gets-the-axehttp://www.examiner.com/article/nebraska-omaha-wins-3d-straight-ncaa-d2-mat-title-then-program-gets-the-axehttp://www.examiner.com/article/nebraska-omaha-wins-3d-straight-ncaa-d2-mat-title-then-program-gets-the-axehttp://www.examiner.com/article/nebraska-omaha-wins-3d-straight-ncaa-d2-mat-title-then-program-gets-the-axehttp://seattletimes.com/html/sports/2009157966_budgetcuts02.htmlhttp://seattletimes.com/html/sports/2009157966_budgetcuts02.htmlhttp://seattletimes.com/html/sports/2009157966_budgetcuts02.htmlhttp://usatoday30.usatoday.com/sports/olympics/2009-04-02-4074405284_x.htmhttp://usatoday30.usatoday.com/sports/olympics/2009-04-02-4074405284_x.htmhttp://usatoday30.usatoday.com/sports/olympics/2009-04-02-4074405284_x.htmhttp://usatoday30.usatoday.com/sports/olympics/2009-04-02-4074405284_x.htmhttp://www.umassathletics.com/sports/m-itrack/spec-rel/031102aaa.htmlhttp://www.umassathletics.com/sports/m-itrack/spec-rel/031102aaa.htmlhttp://www.umassathletics.com/sports/m-itrack/spec-rel/031102aaa.htmlhttp://usatoday30.usatoday.com/sports/olympics/2009-03-03-2368858001_x.htmhttp://usatoday30.usatoday.com/sports/olympics/2009-03-03-2368858001_x.htmhttp://usatoday30.usatoday.com/sports/olympics/2009-03-03-2368858001_x.htmhttp://usatoday30.usatoday.com/sports/olympics/2009-03-03-2368858001_x.htmhttp://www.soccer-new-england.com/UMaine-Cuts-Mens-Soccer-Program.htmlhttp://www.soccer-new-england.com/UMaine-Cuts-Mens-Soccer-Program.htmlhttp://www.soccer-new-england.com/UMaine-Cuts-Mens-Soccer-Program.htmlhttp://www.soccer-new-england.com/UMaine-Cuts-Mens-Soccer-Program.htmlhttp://collegesportsinfo.com/2009/02/20/vermont-cutting-baseball-and-softball/http://collegesportsinfo.com/2009/02/20/vermont-cutting-baseball-and-softball/http://collegesportsinfo.com/2009/02/20/vermont-cutting-baseball-and-softball/http://collegesportsinfo.com/2009/02/20/vermont-cutting-baseball-and-softball/http://bleacherreport.com/articles/182405-title-ix-in-full-force-quinnipiac-forced-to-keep-womens-volleyballhttp://bleacherreport.com/articles/182405-title-ix-in-full-force-quinnipiac-forced-to-keep-womens-volleyballhttp://bleacherreport.com/articles/182405-title-ix-in-full-force-quinnipiac-forced-to-keep-womens-volleyballhttp://bleacherreport.com/articles/182405-title-ix-in-full-force-quinnipiac-forced-to-keep-womens-volleyballhttp://www.nydailynews.com/sports/college/hofstra-university-drops-football-team-due-lack-funds-interest-article-1.432171http://www.nydailynews.com/sports/college/hofstra-university-drops-football-team-due-lack-funds-interest-article-1.432171http://www.nydailynews.com/sports/college/hofstra-university-drops-football-team-due-lack-funds-interest-article-1.432171http://www.nydailynews.com/sports/college/hofstra-university-drops-football-team-due-lack-funds-interest-article-1.432171http://www.nydailynews.com/sports/college/hofstra-university-drops-football-team-due-lack-funds-interest-article-1.432171http://www.wksu.org/news/story/28270http://www.wksu.org/news/story/28270http://www.wksu.org/news/story/28270http://www.wksu.org/news/story/28270http://www.wksu.org/news/story/28270http://www.nydailynews.com/sports/college/hofstra-university-drops-football-team-due-lack-funds-interest-article-1.432171http://www.nydailynews.com/sports/college/hofstra-university-drops-football-team-due-lack-funds-interest-article-1.432171http://www.nydailynews.com/sports/college/hofstra-university-drops-football-team-due-lack-funds-interest-article-1.432171http://www.nydailynews.com/sports/college/hofstra-university-drops-football-team-due-lack-funds-interest-article-1.432171http://bleacherreport.com/articles/182405-title-ix-in-full-force-quinnipiac-forced-to-keep-womens-volleyballhttp://bleacherreport.com/articles/182405-title-ix-in-full-force-quinnipiac-forced-to-keep-womens-volleyballhttp://bleacherreport.com/articles/182405-title-ix-in-full-force-quinnipiac-forced-to-keep-womens-volleyballhttp://collegesportsinfo.com/2009/02/20/vermont-cutting-baseball-and-softball/http://collegesportsinfo.com/2009/02/20/vermont-cutting-baseball-and-softball/http://collegesportsinfo.com/2009/02/20/vermont-cutting-baseball-and-softball/http://www.soccer-new-england.com/UMaine-Cuts-Mens-Soccer-Program.htmlhttp://www.soccer-new-england.com/UMaine-Cuts-Mens-Soccer-Program.htmlhttp://www.soccer-new-england.com/UMaine-Cuts-Mens-Soccer-Program.htmlhttp://usatoday30.usatoday.com/sports/olympics/2009-03-03-2368858001_x.htmhttp://usatoday30.usatoday.com/sports/olympics/2009-03-03-2368858001_x.htmhttp://usatoday30.usatoday.com/sports/olympics/2009-03-03-2368858001_x.htmhttp://www.umassathletics.com/sports/m-itrack/spec-rel/031102aaa.htmlhttp://www.umassathletics.com/sports/m-itrack/spec-rel/031102aaa.htmlhttp://usatoday30.usatoday.com/sports/olympics/2009-04-02-4074405284_x.htmhttp://usatoday30.usatoday.com/sports/olympics/2009-04-02-4074405284_x.htmhttp://usatoday30.usatoday.com/sports/olympics/2009-04-02-4074405284_x.htmhttp://seattletimes.com/html/sports/2009157966_budgetcuts02.htmlhttp://seattletimes.com/html/sports/2009157966_budgetcuts02.htmlhttp://www.examiner.com/article/nebraska-omaha-wins-3d-straight-ncaa-d2-mat-title-then-program-gets-the-axehttp://www.examiner.com/article/nebraska-omaha-wins-3d-straight-ncaa-d2-mat-title-then-program-gets-the-axehttp://www.examiner.com/article/nebraska-omaha-wins-3d-straight-ncaa-d2-mat-title-then-program-gets-the-axehttp://www.examiner.com/article/nebraska-omaha-wins-3d-straight-ncaa-d2-mat-title-then-program-gets-the-axehttp://www.examiner.com/article/no-4-story-of-2013-boston-university-to-kill-wrestling-program-after-2013-14http://www.examiner.com/article/no-4-story-of-2013-boston-university-to-kill-wrestling-program-after-2013-14http://www.examiner.com/article/no-4-story-of-2013-boston-university-to-kill-wrestling-program-after-2013-14


28/30

University of RhodesIsland Atlantic 10Conference

Field HockeyMens TennisMens Swimming

2008 http://www.cstv.com/sports/m-tennis/uwire/041508aaa.html (Ex. 45)

University of Delaware Colonial Athletic

Conference

Mens Track 2011 http://www.nytimes.com/2011/05/02/sports/02gender.html (Ex. 46)

Delaware StateUniversity Mid-Eastern Conference

Mens TennisWomens Equestrian

2010 http://meacswacsports.blogspot.com/2010/01/delaware-state-university-cuts-two.html (Ex. 47)

University of Richmond Atlantic 10Conference

Mens TrackMens Soccer

2012 http://thecollegianur.com/2012/09/21/mens-soccer-and-track-field-cut-in-favor-of-lacrosse/28685/ (Ex. 48)

West Virginia University Big 12 Conference

Mens Indoor TrackMens Outdoor TrackMens Cross CountryMens TennisRifle

2003 http://old.post-gazette.com/sports/wvu/20030420wvucuts0420p4.asp (Ex. 49)

University of Toledo Mid-AmericanConference

Mens Indoor TrackMens Outdoor TrackMens Swimming

2003 http://www.toledoblade.com/Education/2003/04/22/UT-eliminates-swimming-track-for-male-athletes-state-cuts-Title-IX-figure-in-decision.html (Ex. 50)

Ohio University Mid-American Conference

Mens Indoor TrackMens Outdoor TrackMens Swimming

2007 http://title-ix.blogspot.com/2007/01/ohio-university-drops-four-sports.html (Ex.51)

Bowling Green Mid-American Conference

Mens TrackMens TennisMens Swimming

2002 http://old.nationalreview.com/lopez/lopez051002.asp (Ex. 52)

Marshall University Conference USA

Mens Indoor TrackMens Outdoor Track

2003 http://www.marshallparthenon.com/2.13765/men-s-track-victim-of-cuts-1.1900985 (Ex. 53)

James MadisonUniversity ColonialAthletic Conference

Mens Indoor TrackMens Outdoor TrackMens Cross CountryMens Swimming

Mens GymnasticsMens WrestlingMens ArcheryWomens GymnasticsWomens FencingWomens Archery

2006 http://www.nytimes.com/2006/10/07/sports/othersports/07madison.html?pagewanted=all (Ex. 54)

http://www.cstv.com/sports/m-tennis/uwire/041508aaa.htmlhttp://www.cstv.com/sports/m-tennis/uwire/041508aaa.htmlhttp://www.cstv.com/sports/m-tennis/uwire/041508aaa.htmlhttp://www.nytimes.com/2011/05/02/sports/02gender.htmlhttp://www.nytimes.com/2011/05/02/sports/02gender.htmlhttp://www.nytimes.com/2011/05/02/sports/02gender.htmlhttp://meacswacsports.blogspot.com/2010/01/delaware-state-university-cuts-two.htmlhttp://meacswacsports.blogspot.com/2010/01/delaware-state-university-cuts-two.htmlhttp://meacswacsports.blogspot.com/2010/01/delaware-state-university-cuts-two.htmlhttp://meacswacsports.blogspot.com/2010/01/delaware-state-university-cuts-two.htmlhttp://thecollegianur.com/2012/09/21/mens-soccer-and-track-field-cut-in-favor-of-lacrosse/28685/http://thecollegianur.com/2012/09/21/mens-soccer-and-track-field-cut-in-favor-of-lacrosse/28685/http://thecollegianur.com/2012/09/21/mens-soccer-and-track-field-cut-in-favor-of-lacrosse/28685/http://thecollegianur.com/2012/09/21/mens-soccer-and-track-field-cut-in-favor-of-lacrosse/28685/http://old.post-gazette.com/sports/wvu/20030420wvucuts0420p4.asphttp://old.post-gazette.com/sports/wvu/20030420wvucuts0420p4.asphttp://old.post-gazette.com/sports/wvu/20030420wvucuts0420p4.asphttp://old.post-gazette.com/sports/wvu/20030420wvucuts0420p4.asphttp://www.toledoblade.com/Education/2003/04/22/UT-eliminates-swimming-track-for-male-athletes-state-cuts-Title-IX-figure-in-decision.htmlhttp://www.toledoblade.com/Education/2003/04/22/UT-eliminates-swimming-track-for-male-athletes-state-cuts-Title-IX-figure-in-decision.htmlhttp://www.toledoblade.com/Education/2003/04/22/UT-eliminates-swimming-track-for-male-athletes-state-cuts-Title-IX-figure-in-decision.htmlhttp://www.toledoblade.com/Education/2003/04/22/UT-eliminates-swimming-track-for-male-athletes-state-cuts-Title-IX-figure-in-decision.htmlhttp://www.toledoblade.com/Education/2003/04/22/UT-eliminates-swimming-track-for-male-athletes-state-cuts-Title-IX-figure-in-decision.htmlhttp://www.toledoblade.com/Education/2003/04/22/UT-eliminates-swimming-track-for-male-athletes-state-cuts-Title-IX-figure-in-decision.htmlhttp://title-ix.blogspot.com/2007/01/ohio-university-drops-four-sports.htmlhttp://title-ix.blogspot.com/2007/01/ohio-university-drops-four-sports.htmlhttp://title-ix.blogspot.com/2007/01/ohio-university-drops-four-sports.htmlhttp://title-ix.blogspot.com/2007/01/ohio-university-drops-four-sports.htmlhttp://old.nationalreview.com/lopez/lopez051002.asphttp://old.nationalreview.com/lopez/lopez051002.asphttp://old.nationalreview.com/lopez/lopez051002.asphttp://www.marshallparthenon.com/2.13765/men-s-track-victim-

o'bannon filing jan 13 2014: opposition to ncaa motion for summary judgment

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