Parrish et al v. National Football League Players Incorporated

Filing 337

Transcript of Proceedings held on July 24, 2008, before Judge William H. Alsup. Court Reporter/Transcriber Joan Marie Columbini, Telephone number 415-255-6842. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 10/23/2008. (Columbini, Joan) (Filed on 7/28/2008)

Parrish et al v. National Football League Players Incorporated

Doc. 337

1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 1 8 19 20 21 2 2 23 24 25
REPORTED BY:

PAGES 1 - 58 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE WILLIAM H. ALSUP BERNARD PAUL PARRISH, HERBERT, ANTHONY ADDERLEY, WALTER ROBERTS, III, ) ) ) ) PLAINTIFFS ) ) VS. ) NO. C 07-00943 WHA ) NATIONAL FOOTBALL LEAGUE PLAYERS ) ASSOCIATION AND NATIONAL FOOTBALL ) LEAGUE PLAYERS INCORPORATED DBA ) PLAYERS INC., ) ) SAN FRANCISCO, CALIFORNIA DEFENDANTS ) THURSDAY ) JULY 24, 2008 ___________________________________) TRANSCRIPT OF PROCEEDINGS APPEARANCES: FOR PLAINTIFFS BY: MANATT, PHELPS & PHILLIPS, LLP 1001 PAGE MILL ROAD, BUILDING TWO PALO ALTO, CALIFORNIA 94304 RONALD STANLEY KATZ, ESQUIRE RYAN HILBERT, ESQUIRE

FOR DEFENDANTS BY:

DEWEY & LEBOEUF, LLP 1301 AVENUE OF THE AMERICAS NEW YORK, NEW YORK 10019 JEFFREY L. KESSLER, ESQUIRE DAVID GREENSPAN, ESQUIRE

JOAN MARIE COLUMBINI, CSR 5435, RPR OFFICIAL COURT REPORTER, U.S. DISTRICT COURT

JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842
Dockets.Justia.com

2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KESSLER. HONOR.

PROCEEDINGS; THURSDAY, JULY 24, 2008

THE COURT:

OKAY.

WE ARE GOING TO BERNARD PARRISH

VERSUS NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION. THE CLERK: MR. KATZ: COUNSEL, PLEASE STATE YOUR APPEARANCES. RONALD KATZ FOR THE PLAINTIFFS, YOUR

WITH ME IS MY CO-COUNSEL FROM DALLAS LEWIS LECLAIR,

RYAN HILBERT, LAURA FRANCO. IN THE GALLERY, YOUR HONOR, WE HAVE TWO ASSOCIATES, TWO SUMMER ASSOCIATES, ONE FROM OUR OFFICE, PILAR OLLOA (PHONETIC) WHO GOES TO HASTINGS LAW SCHOOL AND ONE FROM MR. LECLAIR'S OFFICE, J.R. JOHNSON FROM DALLAS. WE ALSO HAVE A

RETIRED FOOTBALL PLAYER IN THE GALLERY BENJAMIN LYNCH, PLAYED FOR, AMONG OTHER TEAMS, THE 49ERS. THE COURT: MR. KATZ: THE COURT: WHERE IS HE? HE'S HARD TO MISS, YOUR HONOR. WHY DON'T YOU COME UP HERE AND SIT IN

THE FRONT ROW SO I CAN HAVE AN EVER PRESENT REMINDER OF A CLASS MEMBER? MR. KATZ: ACTUALLY, HE'S NOT A CLASS MEMBER. HE IS

A SUPPORTER OF THE CLASS. THE COURT: STILL SIT UP THERE. THANK YOU. AND MR.

MR. KESSLER:

GOOD AFTERNOON, YOUR HONOR.

JEFFREY

KESSLER FOR THE DEFENDANTS.

I AM HERE WITH MY COLLEAGUES DAVID

JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

GREENSPAN AND JASON CLARK.

I ALSO HAVE AT COUNSEL TABLE THE AND WE

GENERAL COUNSEL OF THE NFLPA MR. RICHARD BERTHELSEN.

HAVE SEATED IN THE AUDIENCE GENE UPSHAW, WHO IS ALSO A RETIRED NFL PLAYER AND THE EXECUTIVE DIRECTOR OF THE NATIONAL FOOTBALL PLAYERS ASSOCIATION. THE COURT: WELCOME. WELL, WE HAVE A LOT OF

CELEBRITIES HERE TODAY. MR. KESSLER: THE COURT: AHEAD. MR. KESSLER: AFTERNOON.

SO LET'S GET STARTED. YOUR HONOR, MAY I APPROACH? GO

IT'S YOUR MOTION, MR. KESSLER.

THANK YOU, YOUR HONOR.

GOOD

WE ARE NOW, YOUR HONOR, AT THE POINT OF SUMMARY JUDGMENT FROM A LEGAL STANDPOINT, I BELIEVE THIS IS THE DAY OF RECKONING. YOU HAVE BEEN EXTRAORDINARILY GENEROUS, I THINK, IN THIS CASE IN GIVING PLAINTIFFS NUMEROUS OPPORTUNITIES TO TRY TO STATE THEIR CASE TO TRY TO COME FORWARD WITH EVIDENCE. BELIEVE THEY HAVE FAILED, AS WE SAID IN OUR PAPERS. READ THOSE PAPERS. WE

I KNOW YOU

WHAT I'M GOING TO TRY TO DO IS TO HIGHLIGHT

THE FUNDAMENTAL REASONS WHY WE BELIEVE THAT SUMMARY JUDGMENT IS, IN FACT, APPROPRIATE AT THIS STAGE OF THE CASE. AND THERE

REALLY ARE FIVE ESSENTIAL POINTS HERE, YOUR HONOR, ALL OF WHICH I BELIEVE THE EVIDENCE IS COMPLETELY ONE SIDED SO THAT THEY ARE, IN EFFECT, UNDISPUTED. JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

WE'RE GOING TO HEAR ARGUMENT FROM COUNSEL FOR PLAINTIFFS ABOUT WHY THEY WOULD LIKE TO DISPUTE THEM, ALLEGATIONS, BUT I DO NOT BELIEVE THERE IS ANY EVIDENCE THAT COULD ACTUALLY RAISE A GENUINE ISSUE ON ANY ONE OF THESE POINTS. THE FIRST POINT, YOUR HONOR, IS THAT THE GROUP LICENSING AGREEMENTS THAT WERE SIGNED BY MR. ADDERLEY AND THE CLASS MEMBERS, ON THEIR FACE, IF ONE THING ABOUT THEM IS CLEAR -- AND I KNOW YOUR HONOR HAS OBSERVED THAT THERE ARE PARTS OF THESE AGREEMENTS THAT ARE FAR FROM CLEAR -- BUT ONE THING THAT IS CLEAR IS THAT THEY ONLY PROVIDE A CONTRACTUAL RIGHT TO RECEIVE MONEY FROM THE GENERATION OF RETIRED PLAYER LICENSING, NOT FROM ACTIVE PLAYER LICENSING. AND THAT, YOUR HONOR, IS CLEAR IN GREENSPAN DECLARATION EXHIBIT 5, WHICH CONTAINS THE GLA'S THAT WERE SIGNED BY MR. ADDERLEY, AND THEY'RE ALL THE SAME FOR THIS PURPOSE. THE LANGUAGE IS UNCLEAR. IT SAYS:

"IT IS FURTHER UNDERSTOOD THAT THE MONIES GENERATED BY SUCH LICENSING OF RETIRED PLAYER GROUP RIGHTS WILL BE DIVIDED," AND THEN IT GOES ON. SO IT HAS TO BE MONEY GENERATED BY SUCH LICENSING OF RETIRED PLAYER GROUP RIGHTS. IF THERE ARE NO RETIRED PLAYER

RIGHTS INVOLVED, IF THE MONEY INVOLVED IS ONLY ACTIVE PLAYERS, THERE IS NO CONTRACTUAL RIGHT TO THAT MONEY. THAT IS ONE THING

JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

THAT IS CRYSTAL CLEAR FROM THIS CONTRACTUAL ARRANGEMENT. AND, SECONDARILY, YOUR HONOR, IF THERE WAS ANY DOUBT ABOUT THIS, IS THAT THE ONLY PARTIES TO THIS AGREEMENT WHO'VE TESTIFIED, BOTH THE PLAYERS ASSOCIATION AND MR. ADDERLEY HAVE AGREED WITH THIS POINT. I'M NOW GOING TO GREENSPAN DECLARATION EXHIBIT 4 WHICH IS MR. ADDERLEY'S TESTIMONY, AND AGAIN HE WAS ASKED VERY SIMPLY: "AT THE TIME YOU READ THE GROUP LICENSING AGREEMENT IN 2001, IT'S YOUR SWORN TESTIMONY THAT YOU THOUGHT THIS REFERRED TO THE LICENSING OF ACTIVE PLAYER RIGHTS?" AND HIS VERY CLEAR ANSWER WAS "NO." THEN HE WAS ASKED: "AND WHAT YOU THOUGHT YOU WERE AGREEING TO GET WAS THAT, IF YOUR RIGHTS WERE LICENSED AND USED, YOU WOULD GET SOME MONEY, CORRECT? "CORRECT. "AND THAT WAS YOUR UNDERSTANDING OF THIS AGREEMENT? "YES." SO WHAT MR. ADDERLEY BELIEVED AND WHAT THE CONTRACT SAID WAS THAT, IF RETIRED PLAYER RIGHTS WERE BEING LICENSED, THEN HE WOULD GET PAID. THIS BECOMES CRITICAL, YOUR HONOR,

BECAUSE ONCE IT'S UNEQUIVOCAL, IT'S THE ONLY EVIDENCE WE HAVE, JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

THE ONLY EVIDENCE WE HAVE THAT IT HAS TO BE RETIRED PLAYER RIGHTS. AND, BY THE WAY, YOUR HONOR, NOTHING ELSE MAKES SENSE,

BECAUSE YOU CAN IMAGINE, THERE ARE 1,000 RETIRED PLAYERS OUT THERE; WHAT SENSE WOULD IT MAKE TO SAY ANY RETIRED PLAYER WHO SIGNS A PIECE OF PAPER COULD GET A SHARE OF ACTIVE PLAYER LICENSING MONEY? THAT WOULD DESTROY THE ENTIRE ACTIVE PLAYER

LICENSING PROGRAM. SO NOT ONLY IS THE LANGUAGE CLEAR, THE TESTIMONY UNEQUIVOCAL, BUT, ALSO, IT MAKES NO SENSE WHAT THEY'RE SAYING. SO THAT FIRST POINT, WE BELIEVE, IS UNDISPUTED. ONCE THAT IS REALIZED, YOU COME -- YES. THE COURT: YOUR FIRST POINT IS THAT NEVER WAS A

SINGLE PENNY GENERATED FROM THE LICENSING OF RETIRED PLAYERS; IS THAT IT? GROUP -I WILL GET TO THAT POINT, YOUR HONOR.

MR. KESSLER:

MY FIRST POINT IS ALL THEY COULD BE ENTITLED TO IS RETIRED PLAYER MONEY. MY POINT ON YOUR SECOND QUESTION JUST RAISED, WHICH IS ACTUALLY MY THIRD POINT -- MY THIRD POINT IS WHENEVER RETIRED PLAYER MONEY WAS GENERATED, IT WAS GIVEN TO THE RETIRED PLAYERS, SO THAT THERE'S NOTHING DUE. THAT'S REALLY THE POINT,

YOUR HONOR, NOT THAT THERE WAS NEVER ANY MONEY FROM RETIRED PLAYER LICENSING. THAT'S NOT THE MONEY THEY SEEK.

IT IS ABSOLUTELY UNDISPUTED, UNDISPUTED, YOUR HONOR, THAT THERE WAS SOME RETIRED PLAYER MONEY, MOSTLY FOR THE STAR JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

RETIRED PLAYERS, THE JOE MONTANAS, THE PEOPLE LIKE THAT, SOME OF WHOM SIGNED GLA'S AND SOME OF WHOM DID NOT SIGN GLA'S. WAS, BY THE WAY, YOUR HONOR, GROUP LICENSING, BECAUSE IT INVOLVED SIX OR MORE PLAYERS. BUT THERE IS NO DISPUTE HERE. THEY DO NOT CLAIM IT

THAT ANY TIME THERE WAS MONEY GENERATED FOR THOSE RETIRED PLAYER DEALS, WHAT THEY CALL THE AD HOC DEALS, ALL THAT MONEY WENT TO THE RETIRED PLAYERS. COMPLAIN ABOUT IT. WOULD EXPECT. THE CASE I THINK YOUR HONOR REALLY THOUGHT THIS WAS ABOUT IN THE BEGINNING WAS THAT WE WERE USING RETIRED PLAYER IMAGES, LICENSING IT, GETTING MONEY, AND SOMEHOW NOT GIVING THE MONEY TO THE RETIRED PLAYERS, GIVING IT TO THE ACTIVE PLAYERS. THERE'S NOT A SHRED OF EVIDENCE TO THAT, AND THEY DON'T CONTEND THAT ANYMORE. THEY AGREE, THEY HAVE NO COMPLAINT AGAINST ANY THEY DON'T SEEK IT. THEY DON'T

SO THIS IS THE OPPOSITE OF THE CASE YOU

OF THE AD HOC DEALS OR ANY OF THAT. NOW, THEY DO DISAGREE THAT'S GROUP LICENSING. GO, OH, NO, THAT'S NOT GROUP LICENSING BECAUSE THAT'S INDIVIDUAL. BUT IT'S SIX OR MORE PLAYERS, YOUR HONOR. IF IT'S THEY

SIX OR MORE PLAYERS, THAT IS GROUP LICENSING.

NOW, YOUR HONOR

COULD SAY, IF IT'S GROUP LICENSING, SAYS WHY DIDN'T IT GO THROUGH THE GLA'S, WHY THESE ADDITIONAL DEALS? AND IT'S VERY SIMPLE, YOUR HONOR. DIDN'T WANT MOST OF THE GLA PLAYERS. THE LICENSEES

THAT WAS UNFORTUNATE, BUT

JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

IT WAS TRUE.

AS YOUR HONOR SAID, IF THEY DON'T WANT YOU, THE

MARKETPLACE DECIDES, DOESN'T MEAN YOU ARE ENTITLED TO ANYTHING. SO THE LICENSEES WOULD SAY GIVE ME THESE 18 PLAYERS FOR SOMETHING. OKAY, WE LOOK AT IT. OUT OF THOSE EIGHTEEN,

SIX OR SEVEN NEVER SIGNED GLA'S, LIKE A JOE MONTANA NEVER SIGNED A GLA, SO WE HAVE TO GO GET AN INDIVIDUAL AGREEMENT. FOR THE REST WE WOULD ALSO GET INDIVIDUAL AGREEMENTS SO THEY WOULD ALL BE TREATED THE SAME WAY. WE COULD HAVE USED THEIR GROUP LICENSING AUTHORIZATIONS FOR THEM, BUT WE DIDN'T DO THAT BECAUSE THIS GAVE THEM MORE MONEY. WHAT THEY GOT, JUST LIKE JOE MONTANA GOT SO

A HUNDRED PERCENT OF HIS MONEY, HERB ADDERLEY GOT A HUNDRED PERCENT OF HIS MONEY IF HE BE SELECTED FOR ONE OF THESE DEALS. SO HE GOT MORE MONEY THAN HE WOULD HAVE GOTTEN HAD WE PAID HIM AND SAID, WE ARE GOING TO DO IT UNDER THE GROUP LICENSING AGREEMENT, BECAUSE THAT'S GOING TO BE DIVIDED SOME WAY. SO THIS WAS GROUP LICENSING, BUT HE ALWAYS GOT THE MONEY. SO THERE IS NO MONEY THAT NEVER WENT TO THE RETIRED IT ALWAYS WENT TO THE RETIRED PLAYERS. THE ONLY

PLAYERS.

MONEY THAT'S LEFT -- THIS WAS GOING TO BE MY SECOND POINT. I'LL NOW MAKE IT MY THIRD -- IS THAT THE MONEY THAT THEY'RE SEEKING IS CLEARLY UNDISPUTABLY, FROM THE RECORD, ACTIVE PLAYER MONEY. HOW DO WE KNOW THAT? WELL, WE KNOW THAT FROM FIVE THE ONLY

OR SIX DIFFERENT SOURCES, ALL OF WHICH ARE THE SAME. JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

THING WE HAVE CONTRARY TO THAT IS MR. KATZ'S ARGUMENT, WHICH IS NOT ENOUGH, AND HIS CLAIM THAT ALL THE WITNESSES ARE LYING. AND AS YOUR HONOR KNOWS, UNDER THE NINTH CIRCUIT LAW, THE CASES FAROUT PRODUCTS VERSUS OSAKA (PHONETIC) -- MAYBE FAROUT PRODUCTS IS A GOOD NAME FOR THAT CASE BECAUSE IT IS FAR OUT TO TAKE THIS POSITION. YOU CAN'T SAY THEY'RE ALL LYING THAT DOESN'T CUT

AND, THEREFORE, HAVE A GENUINE ISSUE OF FACT. IT AS A PLAINTIFF.

THAT'S WHAT HIS POSITION IS. FIRST OF ALL, THE MONEY

SO HOW DO WE KNOW THIS?

THEY'RE SEEKING, THE SO-CALLED GLR POOL -- IT'S NOT REALLY A POOL; IT'S A BUNCH OF ACCOUNTS THAT'S DISTRIBUTED TO THE ACTIVE PLAYERS, EVERY ONE OF THOSE LICENSEES WHO HAVE TESTIFIED -EVERY SINGLE ONE, THERE'S NO CONTRARY TESTIMONY -- HAS SAID THAT MONEY WAS FOR ACTIVE PLAYER RIGHTS ONLY; THAT'S WHAT THEY WERE BARGAINING FOR; THAT'S WHAT THEY WERE GETTING. SO BOTH PARTIES TO THE AGREEMENT, ALL THE LICENSEES AND PLAYERS, INC., AND THE NFLPA ALL SAY IT'S ONLY ACTIVE PLAYER MONEY. WHAT THE CASE LAW SAYS -- AND THEY REALLY CANNOT DISTINGUISH THAT CASE LAW ON A BRIEF -- WHEN YOU HAVE TWO PARTIES TO AGREEMENT OR ALL THE PARTIES TO AGREEMENT WHO AGREE THIS IS WHAT SOMETHING MEANS IN THE LANGUAGE, IT SAYS A THIRD PARTY DOESN'T COME IN AND SAY, NO, IT MEANS, I THINK, SOMETHING ELSE. THEY HAVE NO BASIS FOR IT. SO JUST ON THE TESTIMONY ALONE THIS SHOULD BE JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

SUMMARY JUDGMENT.

BUT THAT'S NOT ENOUGH.

BECAUSE YOU CAN GO

AND LOOK AT THE LANGUAGE ITSELF, AND IF YOU LOOK ACTUALLY AT THE LANGUAGE OF ONE OF THESE AGREEMENTS -- MR. KATZ IS GOING TO SAY IT'S CLEAR, IT MENTIONS RETIRED PLAYERS, IT MUST BE CONVEYING RETIRED PLAYERS' RIGHTS. LANGUAGE ACTUALLY SAYS. THE COURT: BUT LET'S SEE WHAT THE

HE RARELY DISCUSSES THE ACTUAL WORDS.

DO YOU HAVE ANOTHER COPY THAT I CAN -YES, THIS IS, YOUR HONOR -- IT'S EXCUSE ME,

MR. KESSLER:

GREENSPAN EXHIBITS -- I THOUGHT I WROTE THIS DOWN. YOUR HONOR.

THE EA AGREEMENT, I THINK IS -- MAYBE WE CAN HAND

ONE UP TO THE COURT. THE COURT: I'LL FIND IT. WHICH GREENSPAN EXHIBIT IS IT, DAVID? I DON'T KNOW. I HAVE AN EXTRA COPY.

MR. KESSLER:

MR. GREENSPAN: THE COURT:

OKAY. READING FROM THE EA ONE, BUT IT'S ALL WHAT IT SAYS IS AS FOLLOWS,

MR. KESSLER: THE SAME.

IT'S THE SAME LANGUAGE.

THERE'S A GRANTING LANGUAGE IN PARAGRAPH TWO, AND THE GRANTING LANGUAGE SAYS: "PLAYERS INC. HEREBY GRANTS TO LICENSEE, AND LICENSEE HEREBY ACCEPTS THE EXCLUSIVE RIGHT LICENSE," ET CETERA, TO WHAT? TO WHAT? OKAY?

"... TO THE NAMES, LIKENESSES, PICTURES, PHOTOGRAPHS, VOICES, FACSIMILE SIGNATURES, OR BIOGRAPHICAL INFORMATION -- " JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

AND THIS IS THE KEY LANGUAGE: "OF THE NFL PLAYERS REFERENCED IN PARAGRAPH 1A ABOVE." "THE NFL PLAYERS REFERENCED IN 1A ABOVE." NOW, WHEN MR. LINZNER OF EA WAS ASKED ABOUT THAT, HE SAYS, WHAT DOES THAT MEAN? IT MEANS THE ACTIVE PLAYERS, THOSE IT DOESN'T SAY

ARE THE NFL PLAYERS REPRESENTED IN 1(A) ABOVE. THE RETIRED PLAYERS WHO ARE NOT IN THE NFL. EVERYONE UNDERSTOOD IT.

THAT'S HOW

IF YOU LOOK TO 1(A) ABOVE, THERE ARE TWO SENTENCES. THE FIRST SENTENCE IS WHAT'S BEING GRANTED. IT SAYS:

"THE NFLPA HAS BEEN DULY APPOINTED AND IS ACTING ON BEHALF OF THE FOOTBALL PLAYERS OF THE NATIONAL FOOTBALL LEAGUE." I WANT TO EMPHASIZE THAT, THE FOOTBALL PLAYERS OF THE NATIONAL FOOTBALL LEAGUE. THAT'S THE NFL PLAYERS BEING

REFERRED TO, THE FOOTBALL PLAYERS OF THE NATIONAL FOOTBALL LEAGUE. IT'S UNDISPUTED THOSE PLAYERS ARE ONLY ACTIVE PLAYERS WHY? BECAUSE IT REFERS TO THE

IN THE FIRST SENTENCE.

COLLECTIVE BARGAINING AGREEMENT AND THE ACTIVE PLAYER GLA, WHICH IS ACTUALLY ATTACHED TO THAT. ACTIVE PLAYERS. NOW, THE SECOND SENTENCE SAYS, WHICH THEY POINT TO: "LICENSEE ACKNOWLEDGES THAT PLAYERS, INC. ALSO ON OCCASION -- " NOT HAS. JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842 SO WE KNOW THAT MEANS THE

12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

" -- ALSO ON OCCASION SECURES AUTHORIZATION FOR INCLUSION IN PLAYERS, INC. LICENSING PROGRAMS FROM PLAYERS, INCLUDING, BUT NOT LIMITED TO RETIRED PLAYERS." THAT'S WHAT THEY FOCUS ON. " -- WHO HAVE NOT ENTERED INTO SUCH GROUP LICENSING AUTHORIZATION BUT WHO, NEVERTHELESS, AUTHORIZE PLAYERS, INC. TO REPRESENT SUCH PLAYERS FOR DESIGNATED PLAYERS, INC. LICENSE PROGRAMS." NOW WE BELIEVE THAT CLEAR IS REFERRING TO THE INDIVIDUAL AGREEMENTS THAT WE GET FROM TIME TO TIME FOR RETIRED PLAYERS. BUT IF THIS WAS EVEN CLOSE TO AMBIGUOUS, THEN IT'S

RESOLVED BY THE TESTIMONY OF THE LICENSEES. SO YOUR HONOR DOESN'T HAVE TO FIND THAT IT'S CRYSTAL CLEAR HERE. AMBIGUOUS. ALL YOUR HONOR HAS TO SAY IS THAT IT'S AT LEAST AND IF IT'S AMBIGUOUS, WHAT THE CASE LAW SAYS IS

THAT IT'S RESOLVED CONCLUSIVELY AS A MATTER OF LAW BY THE FACT THAT EA, TOPPS, UPPER DECK, FAT HEAD, STATS, EVERY ONE OF THESE LICENSEES SAYING, WE ONLY BOUGHT ACTIVE PLAYER RIGHTS. THE OTHER THING THAT'S SIGNIFICANT, YOUR HONOR, THERE IS ANOTHER PART OF THIS AGREEMENT CALLED "APPROVALS," PARAGRAPH 12 IN ALL THESE AGREEMENTS. PARAGRAPH 12 SAYS, WE

HAVE A LIST OF ALL THE PLAYERS WE'RE LICENSING ON OUR WEBSITE, COME LOOK AT IT SO YOU KNOW WHO YOU'RE GETTING. GUESS WHAT?

IT'S UNDISPUTED, THE ONLY PLAYERS ON THOSE WEBSITES IS ACTIVE JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

PLAYERS. LIST.

THERE ARE NO RETIRED PLAYERS ON THAT WEBSITE OR THAT

SO IF YOU'RE READING THE AGREEMENT AS A WHOLE CONSISTENT WITH THIS, IT HAS TO BE THAT THIS IS ALL ACTIVE PLAYER MONEY. NOW, IF THERE WAS ANY DOUBT ABOUT THAT, WE ALSO COULD LOOK AT, DOES THIS MAKE ANY SENSE, BECAUSE THE CASE LAW SAYS YOU WOULDN'T READ THIS AGREEMENT IN A WAY THAT MAKES NO SENSE. SO, FIRST OF ALL, WHAT MAKES NO SENSE? ONE THING

IS, MANY OF THE AGREEMENTS THEY CHALLENGE ARE OUR FANTASY FOOTBALL GAMES. FANTASY FOOTBALL GAMES, YOUR HONOR -- THOSE

ARE THE PRODUCTS -- ARE PRODUCTS OF TODAY'S ACTIVE PLAYERS THAT PEOPLE PARTICIPATE IN. THEY MAKE UP TEAMS, AND, AS THE SEASON

GOES ON, THEY LOOK AT THE STATISTICS, AND THEY GET PRIZES, OR THEY HAVE CONTESTS WITH EACH OTHER. PLAYERS IN THAT. ELEMENT TO THEM. THEY COME BACK AND SAY, WELL, WE LOOKED AT STATS WEBSITE, AND THEY HAVE SOME RETIRED PLAYER STATISTICS. THEIR FANTASY GAME PRODUCT. HAVE NOTHING TO DO WITH US. PRODUCT. MAKES NO SENSE. WE LICENSE DRAFT PICKS FOR ROOKIES. HOW CAN YOU NOT IN THEY DON'T PLAY. YOU CAN'T HAVE RETIRED SO THERE'S NO FANTASY

THEY DO OTHER WEBSITE PRODUCTS, WE ONLY LICENSE A FANTASY GAME

HAVE RETIRED PLAYERS WHEN WE ARE LICENSING ONLY TO BE USED THE JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

RIGHTS IN DRAFT PICKS? SENSE.

SO, AGAIN, NONE OF THIS MAKES ANY

THIRD POINT IS WHEN SOMEONE LIKE AN EA WANTED TO USE THE RETIRED PLAYERS, A SMALL GROUP, OR UPPER DECK, WHAT DID THEY DO? AND THIS IS UNDISPUTED. THEY PAID THE RETIRED

PLAYERS MONEY AND ENTERED INTO THESE SEPARATE AGREEMENTS. IF THEY ALREADY HAD THE RIGHTS, AS MR. KATZ CONTENDS, TO THESE RETIRED PLAYERS THROUGH THIS LANGUAGE, WHY WERE THEY PAID TWICE? WHAT SENSE WOULD IT MAKE TO PAY TWICE?

MR. KATZ SAID THEY DIDN'T KNOW THEY HAD THE RIGHTS TO RETIRED PLAYERS. IF THEY DIDN'T KNOW AND IF THE PLAYERS, INC. DIDN'T MR. KATZ KNOWS BECAUSE HE SAYS

LICENSE IT TO THEM, WHO KNOWS? SO?

IT DOESN'T CREATE A GENUINE ISSUE OF FACT. SO, FINALLY, TO SHOW YOU HOW ABSURD THEIR ARGUMENTS

GO, THEY EVEN TAKE AGREEMENTS THAT DON'T MENTION THE WORD RETIRED PLAYERS. THEY HAVE AGREEMENTS LIKE THE NFL SPONSORSHIP THEY HAVE

AGREEMENT THAT SAYS NOTHING ABOUT RETIRED PLAYERS.

OTHER LICENSES THAT DON'T EVEN USE THIS LANGUAGE THAT MENTIONS RETIRED PLAYERS. THEY JUST WANT ALL THE ACTIVE PLAYERS' MONEY, AND THEY COME UP WITH THIS HUGE CLAIM BASED ON ABSOLUTELY NO CONNECTION AT ALL. AND, SO, AGAIN, YOUR HONOR, WE SAY YOU ADD THESE THREE THINGS TOGETHER THAT: FIRST, THEY ONLY -- THEY'RE ONLY

ENTITLED TO RETIRED PLAYER MONEY; SECOND, THAT WHENEVER THERE JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

WAS RETIRED PLAYER MONEY IT WAS PAID TO THEM; AND, THIRD, THAT ALL THE MONEY THEY'RE SEEKING, THEY'RE ENTIRE DAMAGE CLAIM FOR MR. ROWLEY IS SOLELY BASED ON GETTING A SHARE OF THE ACTIVE PLAYER MONEY. THAT'S A HUNDRED PERCENT. THEN IT CAN'T BE A

BREACH OF CONTRACT CLAIM HERE.

NOTHING AT ALL WAS BREACHED.

I'D ALSO NOTE, YOUR HONOR, THAT THEY SAY THEY CLAIM THIS ACTIVE PLAYER MONEY IS THE, QUOTE, ESCROW FUND. NO EVIDENCE OF THAT. NO ESCROW AGREEMENT. THAT'S JUST WHAT MR. KATZ SAYS. THERE'S NO ESCROW AGENT. THERE'S THERE'S

THERE'S NO

ATTRIBUTES OF A ESCROW FUND.

THERE'S NO SEPARATE FUND SET UP.

HE'S JUST, YOUR HONOR, MAKING THAT UP. HE COULD SAY IT A HUNDRED TIMES, BUT THERE'S NO EVIDENCE OF IT. ASK HIM WHERE THE EVIDENCE IS WHEN HE GETS UP, THERE'S NO REFERENCE TO IT. ALL

THAT THAT'S THE ESCROW FUND.

IT IS IS A BUNCH OF BANK ACCOUNTS WHERE THE LICENSING MONEY GOES IN AND THEY FIGURE OUT HOW TO DIVIDE IT UP TO THE ACTIVE PLAYERS. THERE'S NO ESCROW FUND CREATED. YOUR HONOR CAN SAY, WHY ISN'T THERE AN ESCROW FUND; THERE HAS TO BE AN ESCROW FUND? THE REASON IS BECAUSE ALL THE

RETIRED PLAYER MONEY WAS PAID OUT TO THE RETIRED PLAYERS, SO THERE'S NOTHING TO PUT INTO A FUND. THERE CAN BE NO INJURY CLAIM, AND THERE IS NONE, JUST FROM NOT HAVING A FUND. MONEY? THE QUESTION IS, WAS THERE ANY

AND THEY HAVE NO EVIDENCE THAT THERE'S A SINGLE DOLLAR IN FACT, IF ANYTHING, THE

OF MONEY THAT WASN'T PAID OUT.

JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

16

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

RETIRED PLAYERS -- BECAUSE, FRANKLY, THE ACTIVE PLAYERS FELT BADLY FOR THE RETIRED PLAYERS, THEY GOT PAID OUT A HIGHER PERCENTAGE THAN THE ACTIVE PLAYERS. THE RETIRED PLAYERS GOT PAID ALMOST $30 MILLION, THOSE WHOSE RIGHTS WE USED, OVER THIS PERIOD, ALMOST $30 MILLION. OKAY? AND IT WAS PAID OUT ABOUT 97 PERCENT. THIS

WAS UNDISPUTED.

THREE PERCENT WAS KEPT, A TINY AMOUNT FOR SOME

ADMINISTRATIVE COSTS AND THINGS LIKE THAT. THE ACTIVE PLAYERS GET A MUCH SMALLER PERCENT BECAUSE THAT'S WHAT THE ACTIVE PLAYERS VOTED TO TAKE FOR THEMSELVES. THIS IS, AGAIN, A CLASSIC EXAMPLE OF NO GOOD DEED GOES UNPUNISHED. THE NFLPA IS THE ONLY UNION OF ALL THE SPORTS

UNIONS WHO HAVE TRIED TO DO SOMETHING FOR THE RETIRED PLAYERS, AND WHAT THEY GET BACK IN TURN IS A CASE LIKE THIS THAT MAKES ABSOLUTELY NO SENSE. THAT BRINGS ME, YOUR HONOR -- AND I WANT TO BE CLEAR, FINALLY, ON THE NO BREACH. WE ARE NOT CLAIMING, AS

MR. KATZ HAS SAID, THAT WE HAVE DISCRETION, SO OUR CLAIM IS THERE'S RETIRED PLAYER MONEY, BUT THEY'RE NOT ELIGIBLE FOR IT. THAT'S NOT THE FACTS. THERE IS NO RETIRED PLAYER MONEY. IF THERE WAS

RETIRED PLAYER MONEY, WE AGREE THEY WOULD BE ENTITLED TO GET THAT RETIRED PLAYER MONEY. WE NEVER MADE ANY OTHER CLAIM. HIS

PROBLEM IS HE CAN'T FIND ANY EVIDENCE OF RETIRED PLAYER MONEY JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

17

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

THAT HASN'T BEEN PAID. THAT BRINGS ME TO BREACH OF FIDUCIARY DUTY, YOUR HONOR, TWO POINTS -- THREE POINTS THERE. ONE IS ALL THE REASONS WE JUST WENT THROUGH SHOWING THERE'S NO BREACH, BECAUSE IF IT IS ALL ACTIVE PLAYER MONEY, IT CAN'T BE A BREACH OF DUTY TO NOT GIVE TO THE RETIRED PLAYERS MONEY THAT BELONGS TO SOMEBODY ELSE. THAT -- NO VIEW OF BREACH

OF DUTY WOULD BE YOUR DUTY IS TO GIVE YOU SOMEBODY ELSE'S MONEY. IT MAKES NO SENSE. BUT MORE FUNDAMENTALLY, THERE'S NO DUTY. WHEN YOUR HONOR ALLOWED THE BREACH OF FIDUCIARY DUTY CASE TO GO FORWARD, YOU WERE APPLYING CALIFORNIA LAW, AND YOU ALLOWED IT UNDER CERTAIN THEORIES. NOW YOUR HONOR HAS RULED

IT'S GOT TO BE VIRGINIA OR D.C. LAW. THE CONSEQUENCE OF THAT AND THE CONSEQUENCE OF YOUR CLASS CERTIFICATION DECISION IS THEY'RE ONLY LEFT WITH ONE MORE THEORY OF BREACH OF FIDUCIARY DUTY. THAT'S EXPRESS AGENCY.

UNDER BOTH D.C. AND VIRGINIA LAW, WE CITED THE CASES ON PAGE 30 TO 31 OF OUR MOTION, WHICH IS THE MURPHY CASE, THE AMES CASE, SEVERAL OTHER CASES, UNDER BOTH OF THOSE YOU MUST HAVE CONTROL OVER THE DAY-TO-DAY ACTIVITIES OF THE AGENT FOR THERE TO BE A FIDUCIARY DUTY. IT IS NOT ENOUGH TO HAVE THE SUPPOSED RIGHT TO TERMINATE. AND, BY THE WAY, UNDER THE GLA THEY HAVE NO RIGHT IT'S A THREE-YEAR CONTRACT. IT'S FOR A TERM.

TO TERMINATE.

JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

IT'S FOR A SPECIFIC TERM. NOT SUFFICIENT CONTROL. LICENSING AGENT. AMES CASE.

EVEN IF THEY COULD TERMINATE, THAT'S

IT'S NOT ENOUGH THAT THEY'RE A

THE MURPHY CASE IS RIGHT ON POINT, AS IS THE

THIS ISN'T ENOUGH. SO THEY CAN'T RAISE ANY GENUINE ISSUE OF FACT ON

CONTROL, AND, THEREFORE, THERE COULD BE NO DUTY UNDER BREACH OF FIDUCIARY DUTY CLAIM. NOW, FINALLY, YOUR HONOR, TWO MORE POINTS ON BREACH OF FIDUCIARY DUTY. YOU MAY HEAR CLAIMS ABOUT THE $8 MILLION THAT THEY SAY IMPROPERLY WE ALLOCATED THE 40 PERCENT THAT WAS KEPT FOR THE NFLPA, THAT THAT'S TOO MUCH, AND THAT'S A BREACH OF DUTY. WHAT THE UNDISPUTED FACTS SHOW IS THE FOLLOWING: SINCE THIS WAS ALL ACTIVE PLAYER MONEY -- THAT'S ALL WE ARE TALKING ABOUT -- THE ACTIVE PLAYER BOARD OF PLAYER REPRESENTATIVES, ELECTED BY THE ACTIVE PLAYERS, MET EACH YEAR IN HAWAII AT THEIR MEETING, AND THEY VOTED WHAT THE PERCENTAGE SPLIT SHOULD BE BETWEEN THE NFLPA, THE PLAYERS, THE ACTIVE PLAYERS, AND PLAYERS, INC., BECAUSE THEY'RE USING THIS MONEY TO SUPPORT THEIR UNION. THERE'S NOTHING WRONG WITH THE ACTIVE

PLAYERS TAKING THEIR OWN MONEY AND DECIDING HOW MUCH OF THAT SHOULD GO TO THEIR UNION AND HOW MUCH OF IT SHOULD GO TO THEM. HOW COULD THAT BE A BREACH OF FIDUCIARY DUTY? IF THIS WAS RETIRED PLAYER MONEY, AGAIN, I COULD UNDERSTAND THEIR COMPLAINT, BUT IT'S THE SAME ACTIVE PLAYER JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

19

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MONEY.

THERE'S NO EVIDENCE THAT ANY RETIRED PLAYER MONEY WAS SO THE 40 PERCENT CLAIM THAT

DIVERTED FOR ANY PURPOSE AT ALL.

THAT'S TOO HIGH A PERCENTAGE, THE CLAIM ABOUT $8 MILLION, ALL OF THIS WAS THE ACTIVE PLAYERS THEMSELVES DECIDING THIS IS HOW THEY WANTED TO DIVIDE UP THEIR MONEY. FIDUCIARY DUTY. THEY ALSO RAISE -- TO SHOW YOU WHERE THEY ARE, YOUR HONOR, IN DESPERATION -- NOW IN THEIR BRIEF THE HALL OF FAME AGREEMENT. WE MAY HEAR ABOUT THAT IN MR. KATZ'S ARGUMENT. THE HALL OF FAME AGREEMENT IS ONE OF THESE AD HOC DEALS. THEY SAY THROUGHOUT THEY ARE NOT CLAIMING ANYTHING CAN'T BE A BREACH OF

WRONG FROM THE AD HOC DEALS; THEY ARE NOT SEEKING ANY DAMAGES FROM THE AD HOC DEALS. NOTHING. THEIR DAMAGE STUDY BY HOW COULD

MR. ROWLEY ATTRIBUTES NO INJURY TO THE AD HOC DEALS.

THEY NOW COME IN IN THEIR OPPOSITION AND SAY, OH, HERE'S AN E-MAIL ABOUT AN AD HOC DEAL INVOLVING THE HALL OF FAME THAT MUST SHOW THERE'S A BREACH OF DUTY? IT MAKES ABSOLUTELY NO SENSE, YOUR HONOR. ONLY INVOLVES 17 CLASS MEMBERS, 17. THAT DEAL

IF YOU WERE LOOKING AT YET THEIR

EACH AD HOC DEAL, YOU COULDN'T CERTIFY A CLASS.

CLAIM IS THAT PARTICULAR DEAL SHOULD HAVE BEEN MORE MONEY. THAT'S NOT THEIR CLAIM IN THIS CASE. THEY'RE JUST DESPERATE TO

THROW ANYTHING IN THE RECORD, NO MATTER WHAT ITS RELEVANCE IS HERE. THERE MAY BE DISPUTED ISSUES ABOUT THAT DEAL, BUT JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

THEY'RE NOT MATERIAL TO THIS MOTION, BECAUSE THE AD HOC DEALS ARE NOT PART OF THIS CASE, THEY ARE NOT PART OF THIS MOTION, THEY DON'T INVOLVE A CLASSWIDE ISSUE. YOU DIDN'T MARKET ENOUGH. WHERE'S THEIR EVIDENCE? ENOUGH. FOR THE GROUPS OF PLAYERS WHO WERE WANTED WE GENERATED ALMOST $30 MILLION. THAT'S ALL THE EVIDENCE. ALL FINALLY, THEY SAY, WELL,

WELL, THAT'S OKAY TO SAY IT.

THEY HAVE NO EVIDENCE WE DIDN'T MARKET

THE EVIDENCE WE PUT IN, OUR PEOPLE TALKING ABOUT HOW THEY TRIED TO MARKET THE RETIRED PLAYERS. CONTRARY. THEY HAVE NO EVIDENCE TO THE THAT'S

THEY JUST SAY, WE DON'T THINK IT'S ENOUGH. WHERE'S THE WITNESS?

NOT EVIDENCE.

WHERE'S THE TESTIMONY?

WHERE'S THE DOCUMENT? SUMMARY JUDGMENT.

THEY DON'T HAVE THAT TO FIGHT OFF

AND THEN IN THE END, THEY HAVE NO EVIDENCE OF INJURY. EVEN IF YOU THOUGHT THAT, WELL, MAYBE THERE'S A WHAT WOULD BE THE

GENUINE ISSUE, WE DIDN'T MARKET ENOUGH. EVIDENCE OF INJURY?

IT WOULD BE DIFFERENT FOR EVERY PLAYER.

IF YOU DON'T MARKET JOE MONTANA, IT IS DIFFERENT IF YOU DON'T MARKET ME. IT WOULD BE A DIFFERENT INJURY CALCULATION. THE ONLY INJURY CALCULATION THEY PUT IN IS THE EQUAL SHARE OF THE ACTIVE PLAYER MONEY. HOW COULD YOU POSSIBLY LINK

THAT TO ANY INDIVIDUAL BREACH CLAIM ABOUT MARKETING EFFORT OR SOMETHING LIKE THAT? YOU CAN'T. AND THEY -- IT'S AN ELEMENT THERE MUST

OF PROOF OF LIABILITY AND BREACH OF FIDUCIARY DUTY. JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

21

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

BE INDIVIDUAL INJURY IN SOME WAY. I KNOW YOUR HONOR IN YOUR CLASS RULING SAID, WE'LL GET TO THAT ISSUE LATER, IT MAY OR MAY NOT WORK. CAN'T WORK HERE TO SATISFY THEIR INJURY ELEMENT. THEIR EXPERT, MR. ROWLEY, IN HIS REPORT SAID, AND WE QUOTED THIS IN OUR PAPERS, HE'S ASSUMING CAUSATION. WELL, IT'S IT CLEARLY

ALL NICE, THEY HAVE A DAMAGE EXPERT WHO ASSUMES CAUSATION. THEY HAVE NO EVIDENCE OF CAUSATION, AND THEY CAN'T, BECAUSE THE SAD REALITY IS FOR MOST OF THE CLASS MEMBERS, NO ONE WANTS THEIR RIGHTS, THEY'RE NOT IN DEMAND, THEY GENERATED NO MONEY, AND, THEREFORE, THEY GOT NO MONEY. FOR THOSE CLASS MEMBERS WHOSE RIGHTS WERE IN DEMAND, THEY GOT THEIR MONEY. IT WENT THROUGH THE AD HOC DEALS IN

GROUP LICENSING, AND THEY GOT EVERY NICKEL, AND THEY DON'T CLAIM THEY WERE DENIED A NICKEL, INCLUDING MR. ADDERLEY, WHO GOT THOUSANDS OF DOLLARS AS A RESULT OF HIS RIGHTS. YOUR HONOR, WE BELIEVE -- AND I APOLOGIZE FOR TAKING THIS MUCH TIME, BECAUSE I KNOW YOU SAID WE WERE PRESSED FOR TIME -- IS WE BELIEVE IT'S TIME TO BRING THIS MATTER TO AN END. YOU'VE GIVEN EVERY POSSIBLE CHANCE. SUMMARY JUDGMENT REQUIRES

THEM, YOUR HONOR, TO COME FORWARD WITH EVIDENCE, NOT ALLEGATIONS. THEY COULD GET ONE LAST CHANCE NOW, YOUR HONOR, BEFORE YOU. WHAT I WOULD PLEASE ASK, IF MR. KATZ MAKES A

CLAIM, ASK HIM TO SHOW YOU THE DOCUMENT OR THE TESTIMONY AND JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

LOOK AT IT.

AND I AM WILLING TO STATE THAT IT WILL NOT SUPPORT

THE CLAIM HE'S MAKING, NOTHING HE'S IDENTIFIED IN HIS BRIEFS OR OPPOSITION TO SUMMARY JUDGMENT. DOES YOUR HONOR HAVE ANY QUESTIONS? THE COURT: I HAVE ONE. IT'S A DIFFERENT QUESTION.

BUT ON THE CLASS NOTICE, WHERE DOES THAT STAND? MR. KESSLER: THE COURT: PERIOD PASSED? MR. KESSLER: MR. KATZ: YOUR HONOR. THE COURT: BUT THE NOTICE HAS GONE OUT? THE NOTICE HAS GONE OUT, YOUR HONOR. HAS THE OPT-OUT PERIOD PASSED? THE CLASS NOTICE?

HAS THAT GONE OUT, AND HAS THE OPT-OUT

THE OPT-OUT PERIOD PASSES ON AUGUST 15,

MR. KESSLER: THE COURT:

THANK YOU. THANK YOU, YOUR HONOR. LET'S HEAR FROM MR. KATZ.

MR. KESSLER: THE COURT:

ALL RIGHT.

I WOULD LIKE TO ASK YOU, MR. KATZ, TO CITE TO SPECIFIC EVIDENCE THAT YOU -- IF WE WERE TO HAVE A TRIAL, LAY OUT THE EVIDENCE THAT YOU HAVE NOW. THIS IS THE TIME -- THIS IT IS YOUR BURDEN

IS WHAT JUDGE ORRICK USED TO CALL SHOW TIME.

TO TELL US WHAT THE EVIDENCE IS THAT I THINK WARRANTS CONTINUING THE CASE. MR. KATZ: BUT I TAKE IT YOUR HONOR'S NORMAL

PROCEDURE IS YOU DON'T WANT ME TO REPEAT WHAT'S IN OUR PAPERS, JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

23

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

I PRESUME. THE COURT: I DON'T. I'VE HEARD A LOT FROM I AM INTERESTED IN HEARING

MR. KESSLER WHICH WAS IN HIS BRIEF. EVIDENCE. MR. KATZ: THE COURT: SURE.

SO YOU EVEN -- IF THAT MEANS REPEATING,

I'D LIKE TO HEAR THE ESSENCE OF THE CASE YOU ARE GOING TO BE MAKING AT TRIAL. MR. KATZ: HONOR. ALTHOUGH IT'S DIFFICULT TO LITIGATE A MASTERPIECE OF OBFUSCATION, AND, QUITE FRANKLY, DEFENDANT'S DISCOVERY TACTICS IMPEDED US, I AM IN A POSITION TODAY, RIGHT NOW, TO CRACK THIS CASE WIDE OPEN. TO DO THAT I WOULD LIKE TO FOCUS ON THE I'LL RESPOND TO EVERY POINT HE MADE, YOUR

BIGGEST CONTRACT, ELECTRONICS ARTS, 45 PERCENT OF THE DAMAGES HERE. WE START WITH THE GLA. YOUR HONOR IS WELL FAMILIAR

WITH THAT AND WHAT IT SAYS IS THAT -- IT DEFINES, GIVES THE ONLY DEFINITION OF A GROUP LICENSING AGREEMENT. SIX OR MORE

PRESENT OR FORMER NFL PLAYER IMAGES IN CONJUNCTION WITH OR ON PRODUCTS THAT ARE SOLD AT RETAIL OR USED AS PROMOTIONAL OR PREMIUM ITEMS. YOU COULD HAVE SIX ACTIVE, YOU COULD HAVE SIX ANYTHING

RETIRED, YOU COULD HAVE THREE ACTIVE, THREE RETIRED. TRIGGERS IT. THEY DRAFTED THAT LANGUAGE.

IT MUST BE CONSTRUED

JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

24

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

AGAINST THEM.

THAT'S THE ONLY DEFINITION OF GROUP LICENSING.

THEN WE GO TO THE PAYMENT PART OF THE GLA, WHICH SAYS: "IT IS FURTHER UNDERSTOOD THAT THE MONIES GENERATED BY SUCH LICENSING -- " THERE'S ONLY ONE KIND OF LICENSING, AND THAT'S THE SIX OR MORE PRESENT OR FORMER. " -- SUCH LICENSING OF RETIRED PLAYER GROUP RIGHTS WILL BE DIVIDED BETWEEN THE PLAYER AND AN ESCROW ACCOUNT FOR ALL ELIGIBLE NFLPA MEMBERS WHO HAVE SIGNED A GROUP LICENSING AUTHORIZATION FORM." NOW, THE PARTIES DIFFER IN HOW THAT LANGUAGE IS INTERPRETED. WE SAY SUCH LICENSING CAN ONLY REFER TO SIX OR

MORE, PRESENT OR FORMER, BECAUSE THAT'S THE ONLY KIND THERE IS, AND THEY FOCUS ON THE RETIRED PLAYERS. WAY OR THE OTHER. I THINK WE'RE RIGHT. WE SHOULD WIN THAT ONE BUT IF WE'RE NOT,

AMBIGUITY IS CONSTRUED AGAINST THEM. LET'S TAKE IT THEIR WAY. LET'S TAKE IT THEIR WAY.

LET'S SAY IT'S JUST SIX OR MORE RETIRED PLAYERS, AND, AGAIN, FOCUSING ON EA. IT IS UNDISPUTED, YOUR HONOR, THAT IN THE EA IN FACT, THEY USE I HAVE THE SCREEN THERE'S

GAME, THEY USE SIX OR MORE RETIRED PLAYERS. 148 RETIRED PLAYERS FROM THE HALL OF FAME. SHOTS. THERE'S MR. ADDERLEY.

THERE'S MR. BELITNIKOV.

MR. HENDRICKS, LOFTON.

THERE'S 148 OF THEM.

SINGLETARY. OKAY? SO

THERE IS NO DOUBT THERE IS -- THERE'S MORE THAN SIX. JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

THAT TRIGGERS IT. ONCE YOU HAVE SIX OR MORE RETIRED PLAYERS, THAT AGREEMENT, EVEN BY THEIR INTERPRETATION, WHICH I THINK IS ABSURD, BUT EVEN BY THEIR INTERPRETATION, IT'S TRIGGERED, AND ALL THAT MONEY, THEREFORE, MUST GO INTO AN ESCROW FUND THAT WILL BE DIVIDED BETWEEN THE PLAYER -- BE DIVIDED BETWEEN THE PLAYER ESCROW ACCOUNT FOR ALL ELIGIBLE NFLPA MEMBERS. HE SAYS THEY DIDN'T CREATE AN ESCROW FUND. AN ESCROW FUND. TESTIFIED TO IT. ACCOUNTANT. THERE IS ONLY ONE ESCROW FUND. HE'S THEIR 30(B)(6) WITNESS. THERE IS

MR. EYRICH HE'S THEIR

THERE IS ONLY ONE ESCROW FUND, AND THAT IS THE THAT IS IT.

EQUAL SHARE FUND.

SO I'M NOT MAKING A WILD GUESS, BUT IT'S VERY ODD, VERY, VERY ODD THAT HIS DEFENSE IS, YEAH, WE BREACHED, WE JUST DIDN'T CREATE AN ESCROW FUND. BREACH. THAT'S A BREACH. THE COURT: MAY I ASK YOU A QUESTION? THERE'S THAT'S NOT A DEFENSE; THAT'S A

PROBABLY A SIMPLE ANSWER.

NFLPA MEMBERS CAN BE ACTIVE AS WELL

AS RETIRED; IS THAT CORRECT? MR. KATZ: ACTIVES HAVE VOTES. THE COURT: MR. KATZ: THE COURT: ONLY WHAT? ONLY THE ACTIVE PLAYERS HAVE VOTES. ALL RIGHT. BUT YOU CAN STILL BE A CORRECT. YES, YOUR HONOR. BUT ONLY THE

MEMBER AND BE RETIRED; IS THAT CORRECT? JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

26

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PLAYERS?

MR. KATZ: THE COURT: MR. KATZ:

YOU CAN BE A MEMBER AND BE RETIRED, YES. ALL RIGHT. OKAY. BEHIND OUR LET

BUT YOU ARE NOT ELIGIBLE.

BACKS THEY DEFINED ELIGIBILITY.

I WILL GET TO THAT LATER.

ME FINISH THAT POINT, BECAUSE I'M ALMOST FINISHED WITH IT. THE COURT: I WANT TO MAKE SURE I GOT THIS. YOU'RE

SAYING THAT EA CAME OUT WITH A GAME CALLED HALL OF FAME. MR. KATZ: MADDEN 2007. THERE'S ONLY ONE GAME. MADDEN 2008, IF

AND PART OF THAT GAME IS THE VINTAGE GAMES.

YOU WANT TO BE THE '84 49ERS, YOU CAN BE THE '84 49ERS.

IF YOU

WANT TO PLAY THE AFC ALLSTARS AGAINST THE NFC ALLSTARS, YOU CAN DO IT. THERE'S NO QUESTION. THERE'S 148 RETIRED PLAYERS IN

THAT GAME.

THEY ARE HALL OF FAMERS. THE COURT: SO YOUR POSITION IS THAT THAT WOULD THEN

BE A GROUP LICENSE PROGRAM? MR. KATZ: THE COURT: ABSOLUTELY. BECAUSE LICENSEE, MEANING EA, UTILIZED A

TOTAL OF SIX OR MORE PRESENT OR FORMER NFL PLAYER IMAGES IN CONJUNCTION WITH OR ON PRODUCTS THAT ARE SOLD AT RETAIL OR USED AS A PROMOTIONAL OR PREMIUM ITEM. YOU ARE SAYING THAT ONE

PARTICULAR GAME THERE -- WHAT'S IT CALLED AGAIN? MR. KATZ: THIS IS ONE OF THE VINTAGE GAMES. THIS

IS MADDEN 2007, YOUR HONOR. THE COURT: ANYWAY, THAT GAME HAS 148 RETIRED

JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

27

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 AGREEMENT?

MR. KATZ:

THAT'S MORE THAN SIX.

I MEAN, MY

POSITION WOULD BE EVEN MORE THAN SIX ACTIVE PLAYERS TRIGGERS IT BECAUSE IT SAYS SIX OR MORE FORMER OR PRESENT PLAYERS. BUT PUT THAT ASIDE. INTERPRETATION. LET'S FOCUS ON THEIR

THERE IS SIX OR MORE RETIRED PLAYERS IN THERE.

THERE'S NO DOUBT ABOUT IT. THE COURT: WHAT HAPPENED THEN TO THE LICENSING

MONEY FROM THAT PARTICULAR PROGRAM WITH THE 143 RETIRED PLAYERS? MR. KATZ: HAPPEN WITH IT. HOC. I CAN TELL YOU ONE THING THAT DIDN'T OH, THE 148, THEY GOT AD BUT THAT DOESN'T MEAN

WE DIDN'T GET ANY.

THEY WERE PAID ON AN AD HOC BASIS.

THEY'RE NOT PART OF THIS GAME.

THEY ARE PART OF THE GAME.

FOR THE PURPOSE OF TRIGGERING ALL YOU HAVE TO HAVE IS SIX OR MORE, USING THEIR DEFINITION AGAIN, SIX OR MORE RETIRED PLAYERS. GAME. OF IT. THERE'S SIX OR MORE RETIRED PLAYERS IN THAT

BUT THE POOL MONEY, THE SHARED MONEY, WE DIDN'T GET ANY WE DID GET AD HOC. THE COURT: MR. KATZ: THE COURT: MR. ADDERLEY GOT AD HOC FOR THAT.

HOW MANY, 143? ONE HUNDRED FORTY-EIGHT. EACH OF THOSE SIGNED AN AD HOC

MR. KATZ: THE COURT: HOC AGREEMENT?

YES. AND EACH OF THEM GOT PAID UNDER THAT AD

JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A MINUTE. HONOR.

MR. KATZ: ARE HIGHLIGHTED. THE COURT:

RIGHT, BECAUSE YOU GET SPECIAL PAY IF YOU

IF THEY GOT PAID UNDER THE AD HOC

AGREEMENT, WHAT IS THE ARGUMENT FOR THEM GETTING PAID AGAIN UNDER THE GROUP LICENSING? MR. KATZ: THEY ARE NOT GETTING PAID AGAIN, YOUR

THEY'RE SHARED, AND THEN YOU GET PAID EXTRA IF YOU'RE THEY'RE HIGHLIGHTED IN THIS GAME. THEY SHARE -- THERE'S A

HIGHLIGHTED.

TAKE THE ACTIVE PLAYERS.

FUND WHERE THEY SHARE, WHETHER THEY'RE TOM BRADY OR THE THIRD STRING GUARD, AND THEY HAVE AD HOCS, JOE MONTANA OR -- NOT JOE MONTANA -- TOM BRADY CAN GO OUT AND GET ALL THE MONEY THAT HE CAN GET OUT OF THE MARKET, AND HE GETS PAID TWICE. GETTING PAID TWICE. HE'S NOT

ONE IS FOR THE GROUP WHERE EVERYBODY IS

THE SAME, AND THE OTHER IS HE'S HIGHLIGHTED. THIS YEAR BRETT FARVE, WHO MAY OR MAY NOT BE A RETIRED PLAYER, IS GOING TO BE ON THE COVER OF MADDEN, AS I UNDERSTAND. HE'S GOING TO GET A SPECIAL PAYMENT FOR THAT, BUT

HE'S ALSO GOING TO GET HIS EQUAL SHARE IF HE'S AN ACTIVE PLAYER. THE COURT: WAIT. JUST STICK WITH THIS ONE GAME FOR

WAS THERE ANY LICENSING MONEY PAID BY EA FOR THE 148

GAME ABOVE AND BEYOND THE MONEY PAID FOR THE AD HOC LICENSE? MR. KATZ: NO, IT'S NOT JUST THE 148 PLAYERS. THERE'S A LOT MORE THAN 148.

THAT'S WHAT I'M GETTING TO NEXT.

JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

29

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

THAT'S MY NEXT POINT. THE COURT: UNDERSTAND IT. MR. KATZ: THE COURT: NO. OF COURSE. NO, NO. DON'T LEAVE THIS POINT UNTIL I

BUT IT DOES SOUND LIKE A HUNDRED PERCENT

OF THE LICENSING MONEY THAT WAS GENERATED THROUGH THE EA GAME WITH 148, ONE HUNDRED PERCENT OF THAT WENT TO THE RETIRED PLAYERS. MR. KATZ: THE COURT: MISSING? WRONG. THE 148 SIGNED AD HOC AGREEMENTS. LICENSING MONEY. EA PAID SOME NO, THAT'S INCORRECT, YOUR HONOR. UNDER THE AD HOC AGREEMENTS? WHAT AM I

LET ME EXPLAIN MY CONFUSION, AND YOU TELL ME WHY I'M

THE NFLPA THEN -- BY THE WAY, WERE THESE AD

HOC AGREEMENTS WITH EA OR WERE THEY AD HOC AGREEMENTS WITH THE NFLPA? MR. KATZ: I BELIEVE THAT EA MAKES AN AGREEMENT WITH IT'S

THE NFLPA WHO MAKES AN AGREEMENT WITH THE HALL OF FAME. SORT OF A THREE-WAY AGREEMENT. THE COURT:

SO, IN ANY EVENT, PURSUANT TO THE --

WHAT YOU'RE SAYING, I THOUGHT YOU WERE SAYING, IS THAT A HUNDRED PERCENT OF THE MONEY THAT WAS PAID FOR THE USE OF THEIR IMAGES WENT BACK TO THESE INDIVIDUALS, BUT NOW YOU'RE SAYING, NO, THAT'S NOT TRUE. MR. KATZ: MAY I SHOW YOUR HONOR WHAT HAS BEEN

JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

30

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MARKED AS EXHIBIT Q TO THE HILBERT DECLARATION, WHICH IS FROM THE NFL -- DEFENDANT'S WEBSITE. THE COURT: POINT. MR. KATZ: THE COURT: MR. KATZ: THE COURT: IT IS ON THIS POINT, YOUR HONOR. SO I CAN UNDERSTAND -I'M GOING TO JUST MARK --- THIS ISSUE BETTER, LET'S STICK WITH ALL RIGHT. I WANT THIS TO BE ON THIS

THE 148 UNTIL I GET TO THE BOTTOM OF IT. MR. KATZ: I'M GOING TO MARK THE LANGUAGE. I'LL

HAND UP THE ONE PAGE AND MAKE IT EASY. MR. KESSLER: MR. KATZ: YOUR HONOR TO -THE COURT: I'LL READ IT OUT LOUD. THIS IS Q TO HILBERT? I MARKED THE LANGUAGE THAT I WANTED

YES.

"ANY PLAYERS WHO ARE SINGLED OUT TO PROMOTE LICENSED PRODUCTS ARE PAID ADDITIONAL FEES FOR BEING HIGHLIGHTED ON PRODUCT PACKAGING, POINT OF SALE, PRINT ADS OR OTHER COLLATERAL MATERIAL FOR AUTOGRAPHS, APPEARANCES, PRODUCT ENDORSEMENTS, ET CETERA." MR. KATZ: RIGHT. SO WHAT THAT MEANS, LET ME PUT IT

IN THE CONTEXT OF THE ACTIVE, BECAUSE THEY KEEP SAYING EVERYTHING IS ABSURD, NOTHING MAKES SENSE, IT'S THE EXACT SAME THING THEY DO FOR THE ACTIVES, YOUR HONOR. WHAT THEY DO FOR

JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

31

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

THE ACTIVES IS, IF YOU'RE PART OF THE GROUP, YOU GET AN EQUAL SHARE, NO MATTER IF YOU ARE THE BEST OR THE WORST, BUT THEN YOU ALSO GET EXTRA IF YOU ARE HIGHLIGHTED. ARE HIGHLIGHTED. SO MR. ADDERLEY, JUST LIKE TOM BRADY, SHOULD HAVE GOTTEN HIS EQUAL SHARE, AND HE GETS EXTRA BECAUSE HE'S HIGHLIGHTED, AND THERE'S A BUNCH OF OTHER NAMELESS, FACELESS PEOPLE I'M GOING TO TELL YOU ABOUT RIGHT NOW. THE COURT: SHARE? MR. KATZ: HE GOT HIS INDIVIDUAL SHARE. HE GOT HIS OKAY? YOU GET EXTRA IF YOU

DID MR. ADDERLEY GET HIS INDIVIDUAL

INDIVIDUAL SHARE, BUT HE DID NOT GET HIS EQUAL SHARE. THE COURT: AND TRACE THROUGH FOR ME THE FUND OF

MONEY AND WHERE IT WAS OR SHOULD HAVE BEEN THAT WOULD HAVE BEEN THE FUND OF MONEY HE WAS SUPPOSED TO GET AN EQUAL SHARE OF. MR. KATZ: GLA. WELL, THE FUND OF MONEY COMES FROM THE THEY SAY, WE ARE GOING

IT SHOULD BE AN ESCROW ACCOUNT.

TO DIVIDE IT BETWEEN THE PLAYER AND AN ESCROW ACCOUNT. THE COURT: START -- GO BACK TO THE EA, AND THE

MONEY -- LET'S FOLLOW THE MONEY FROM EA BACKWARDS SO I CAN SEE WHERE THE MONEY WENT ASTRAY, IF IT DID. MR. KATZ: GOES TO THE NFLPA. THE MONEY GOES TO -- 40 PERCENT OF IT

TWENTY-THREE PERCENT OF IT GOES TO PLAYERS, AND THE REMAINDER IS SPLIT UP AMONG THAT'S

INC., THE OTHER DEFENDANT.

THE PLAYERS FROM AN ESCROW FUND THAT IS EQUAL SHARE. JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

32

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

WHAT WE SHOULD HAVE BEEN SHARING.

THAT'S THE ONLY ESCROW FUND.

YOUR HONOR EXPRESSED CONFUSION IN YOUR CLASS CERTIFICATION ORDER ABOUT, YOU KNOW, LIKE, WHERE IS THIS ESCROW FUND, WHAT ARE THEY TALKING ABOUT, WE ARE NOT EVEN SURE AN ESCROW FUND WAS CREATED. THE COURT: I WISH YOU HAD A DIAGRAM. DO YOU HAVE A

DIAGRAM SOMEPLACE THAT WOULD DRAW THE FLOW OF THE MONEY SO I CAN SEE WHERE THESE ACCOUNTS ARE. THAT ONE OVER THERE. MR. KATZ: THE COURT: SURE. WE ARE IN A TRIAL, SO YOU'LL NEED TO JUST FIND A -- YOU CAN USE

KEEP THOSE PAGES INTACT, BUT USE A DIFFERENT -- I WANT TO UNDERSTAND ONE EXAMPLE, JUST ONE EXAMPLE, AND WE'LL STICK WITH THE 148, OF HOW THERE'S MONEY OUT THERE THAT SHOULD HAVE GONE TO THE RETIREDS BUT DIDN'T. I THINK THERE'S A MAGIC MARKER THERE. MR. KATZ: YOU HAVE TO UNDERSTAND TWO THINGS.

THERE'S SHARED AGREEMENTS, SHARED MONEY, AND THERE'S SIDE DEALS. OKAY. SO THIS CASE IS NOT ABOUT THE SIDE DEALS. IT'S ABOUT THE EQUAL SHARE. AND THEY GET MONEY, AND IT'S

NOT ABOUT THEM.

SO YOU HAVE A LICENSEE, EA. THEY GET LOTS OF MONEY.

THEY'RE PAYING THE NFLPA $300,000,000, THAT'S $3 OR $400,000,000

$400,000,000, SO YOU CAN IMAGINE. FOR THE CONTRACT.

YOU CAN IMAGINE HOW MUCH THEY'RE MAKING.

EA MONEY COMES, AND PA, THE UNION, GETS 40 PERCENT. JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

33

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

THE PI GETS 23 PERCENT.

AND THEN THERE'S AN ESCROW FUND, AND PLAYERS.

THE PLAYERS GET SHARES FROM THAT. THE COURT: MR. KATZ: THE COURT: MR. KATZ:

WHICH PLAYERS, ACTIVE OR WHAT? PARDON? ACTIVE OR -YEAH, THIS IS THE WAY -- IT'S SUPPOSED TO BUT THIS IS -- LET'S JUST TAKE ACTIVE,

WORK THIS WAY FOR BOTH.

BECAUSE WE KNOW IT WORKS THIS WAY FOR ACTIVE. THE COURT: ACTIVE. MR. KATZ: SIMPLE. THE COURT: THERE? MR. KATZ: THE COURT: MR. KATZ: FROM EA? YES. IT IS A MINIMUM GUARANTEED PAYMENT OF, I HOW MUCH IS GOING INTO THAT ESCROW ALL RIGHT. THIS IS IT. OKAY? IT'S ALL RIGHT. SHOW ME HOW IT WORKS FOR THE

THINK, 25, $30 MILLION A YEAR, REGARDLESS OF WHETHER YOUR IMAGE IS USED. A LOT OF MONEY. THE COURT: ACTIVE PLAYERS? MR. KATZ: LION'S SHARE OF IT. THE COURT: BUT WHATEVER IS LEFT OVER, IT LOOKS LIKE OH, YEAH. OF COURSE, PA AND PI TAKE THE IS THAT MONEY BEING PAID OUT TO THE

TWO-THIRDS, ONE-THIRD IS LEFT OVER. JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

34

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ESCROW. THAT.

MR. KATZ:

THIRTY-SEVEN PERCENT, RIGHT.

THEY SPLIT

THE COURT: MR. KATZ:

THAT GOES TO ESCROW? THAT'S AN EQUAL SHARE. IT GOES TO

THAT'S WHAT HAPPENS. YOU KNOW, YOU SAY, IS TOM BRADY GETTING PAID --

BRETT FARVE, LET'S TAKE BRETT FARVE. COVER THIS YEAR.

HE'S GOING TO BE ON THE HE GETS HIS EQUAL

IS HE GETTING PAID TWICE?

SHARE, AND HE GETS PAID BECAUSE HE'S SINGLED OUT, WHAT I JUST SHOWED YOUR HONOR. THAT'S NOT GETTING PAID TWICE.

MR. ADDERLEY GOT PAID FOR BEING HIGHLIGHTED, BUT HE DIDN'T GET HIS EQUAL SHARE. FUND. OKAY? NOW LET'S TALK ABOUT THE ESCROW IT'S IN

THEY -- I DIDN'T MAKE UP ESCROW ACCOUNT.

THEIR AGREEMENT.

THEY SAID THE MONIES WILL BE DIVIDED BETWEEN

THE PLAYER AND AN ESCROW ACCOUNT. SO THE GAME WE ARE GOING TO PLAY IS, WHERE IS THE ESCROW ACCOUNT? WHERE IS IT? OKAY. HE SAYS THEY NEVER THAT'S NOT

CREATED IT BECAUSE THEY PAID OUT ALL THE MONEY. TRUE EITHER.

I'LL GET TO THAT EVIDENCE IN A MOMENT. THIS IS THE ONLY

THERE'S ONLY ONE ESCROW ACCOUNT. ESCROW ACCOUNT IN THE WORLD.

SO WHEN HE SAYS, WE HAVE NO

EVIDENCE THAT THIS IS THE ESCROW ACCOUNT, I SAY WE HAVE OVERWHELMING EVIDENCE THAT THERE'S -- THAT THIS IS THE ESCROW ACCOUNT, BECAUSE IT'S THE ONLY ESCROW ACCOUNT. NOW, WHAT HAS TO HAPPEN, THIS HAS TO BE TRIGGERED. JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

35

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

THIS AGREEMENT HAS TO BE TRIGGERED.

HOW IS IT TRIGGERED?

IT'S

TRIGGERED IF THERE'S SIX OR MORE ACTIVE OR PRESENT -- PRESENT OR FORMER MEMBERS. OKAY?

AND THEY SAY, OH, THAT DOESN'T MEAN WHAT IT SAYS; IT DOESN'T MEAN PRESENT OR FORMER, IT JUST MEANS FORMER. FINE. IT JUST MEANS FORMER? WE GOT THE FORMER. OKAY.

WE GOT 148

FORMER PEOPLE. SO ONCE THAT'S IN THERE, THEN THE AGREEMENT IS TRIGGERED. NO PAYMENTS WERE MADE. NO EQUAL SHARE PAYMENTS

WERE MADE TO ANY RETIREE. THE COURT:

THERE'S A BREACH. HERE ON THE 148, WAS MONEY

ALL RIGHT.

PAID FROM EA FOR THE 148 INTO THE E, INTO THE E BOX? MR. KATZ: INTO THE E BOX. THE COURT: MR. KATZ: WHERE DID THE MONEY THEN GO? IT WENT -- I'M NOT SURE WHETHER IT WENT I DON'T BELIEVE, NO, THEY DID NOT PAY IT

TO PI AND THEN WENT TO HALL OF FAME AND THEN WENT TO THE PLAYERS, OR -- IT DIDN'T GO INTO THE ESCROW FUND, I KNOW THAT FOR SURE. BUT THERE'S SOME COMBINATION OF, YOU KNOW, MONEY

FLOWING TO PI AND TO THE HALL OF FAME. THE COURT: MR. KATZ: THE COURT: THEN DID IT GO TO RETIRED PLAYERS? RETIRED PLAYERS GOT THAT MONEY. SO IF THE RETIRED PLAYERS EVENTUALLY GOT

IT ANYWAY, WHAT'S THE PROBLEM? MR. KATZ: THEY DIDN'T GET THEIR EQUAL SHARE. THEY

JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

36

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

DIDN'T GET THEIR EQUAL SHARE. THE COURT:

THAT'S A DIFFERENT --

WHAT DO YOU MEAN THEY DIDN'T -- IF

INSTEAD OF GOING INTO -MR. KATZ: THE COURT: THEY DIDN'T GET THEIR SHARE OF THIS. THAT MONEY GOT DIVERTED TO THEM GOING

THROUGH THE HALL OF FAME. MR. KATZ: THE COVER THIS YEAR. WE HAVE BRETT FARVE OVER HERE. HE'S ON OKAY?

LET'S SAY HE'S AN ACTIVE PLAYER.

HE'S GOING TO GET MONEY. SINGLED OUT.

HE'S GETTING MONEY BECAUSE HE'S

HE ALSO GETS HIS EQUAL SHARE. BEING PAID TWICE.

DOESN'T MEAN HE'S

IT JUST MEANS THAT HE'S GETTING PAID EXTRA

FOR BEING SINGLED OUT, BUT THEY ARE NOT PAYING RETIRED PEOPLE. THEY ARE NOT TREATING THEM THE SAME. IT'S NOT -- IT'S THE

SAME -- THE AGREEMENT IS TRIGGERED, BUT WE DON'T GET ANY PAYMENT. WE DON'T GET OUR EQUAL SHARE PAYMENT. THERE'S NO REASON ON EARTH WHY WE WOULDN'T GET BOTH. WHY WOULDN'T YOU GET EXTRA IF YOU WERE SINGLED OUT? IF YOU GO

AND PLAY THIS GAME, YOU'LL SEE A CLIP OF MR. ADDERLEY, YOU'LL SEE A PICTURE OF MR. ADDERLEY. HE'S SINGLED OUT. WE CAN

YOUR HONOR, MAY I PLEASE GO THE NEXT POINT? COME BACK HERE, BUT I THINK IT WILL HELP YOU. THE COURT: MR. KATZ: ALL RIGHT. GO AHEAD.

SO THERE'S A BREACH.

THEY DIDN'T PAY.

BUT, YOUR HONOR, SOMETHING MUCH MORE INSIDIOUS WAS JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

37

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

GOING ON, AND THAT IS -- AND I HAVE GOT A SMOKING GUN DOCUMENT TO PROVE IT. I WOULDN'T SAY THAT LIGHTLY TO YOUR HONOR.

IT IS CLEAR THAT DEFENDANTS ACTUALLY CONSPIRED WITH EA TO ALTER FORMER PLAYERS' IMAGES AND NUMBERS SO THAT AN ARGUMENT COULD LATER BE MANUFACTURED BY DEFENDANTS THAT EA DID NOT ACTUALLY LICENSE OR USE GLA RETIRED PLAYER IMAGES. AND I WOULD DIRECT YOUR HONOR TO EXHIBIT MMM OF THE HILBERT DECLARATION. THE COURT: YOU ARE GOING TO HAVE TO HAND THAT UP

BECAUSE I DON'T KNOW IF I HAVE THAT HERE. MR. KATZ: THE COURT: MR. KATZ: ALL RIGHT. ALL RIGHT. SO IN THESE VINTAGE GAMES, AS I SAY, IF

YOU ARE A FOOTBALL FAN -- I DON'T KNOW WHETHER YOUR HONOR IS OR NOT. THE COURT: MR. KATZ: PROBABLY NOT AS MUCH AS YOU ARE. I KNOW YOUR HONOR IS FROM MISSISSIPPI.

YOU'RE PROBABLY A BIGGER FOOTBALL FAN -THE COURT: IN THOSE DAYS I WAS A BIG FOOTBALL FAN,

BUT MY TEAM NEVER GOT VERY FAR. MR. KATZ: WASN'T HE OLE MISS? THE COURT: HE WAS OLE MISS, YES. BRETT FARVE, OF JOHNNY VAUGHT, I REMEMBER JOHNNY VAUGHT.

COURSE, IS FROM MISSISSIPPI. MR. KATZ: RIGHT.

JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

38

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

THE COURT:

I THINK THE QUARTERBACK FOR THE INDIANA

COLTS, WHAT'S HIS NAME? MR. KATZ: THE COURT: PEYTON MANNING. HE IS FROM MISSISSIPPI. A NUMBER OF

FAMOUS QUARTERBACKS FROM MY HOME STATE. MR. KATZ: I'M QUITE SURE -- I'M FROM MISSOURI, SO

WE DON'T HAVE FAMOUS QUARTERBACKS. THE COURT: MR. KATZ: I WAS A PRETTY GOOD RECEIVER MYSELF. MY MOTHER WOULDN'T LET ME PLAY, SO I WAS

IN A SLIGHTLY DIFFERENT POSITION. BUT, IN ANY EVENT, SO WE HAVE THESE GAMES AND IF YOUR HONOR IS A FAN -- YOUR HONOR MIGHT BE A 49ER FAN OR YOU MIGHT BE A RAIDER FAN. THE COURT: MR. KATZ: I DON'T KNOW. BACK IN THE EARLY '80S I WAS A 49ER FAN. SO YOU MIGHT WANT TO BE THE '84 49ERS.

THAT WAS A GREAT TEAM. THE COURT: MR. KATZ: IT WAS. SO WHAT HAPPENED, IF YOU LOOK AT

EXHIBIT MMM AND YOU'RE PLAYING THIS GAME -- THE FIRST ONE IS BRENT JONES. YOUR HONOR PROBABLY REMEMBERS BRENT JONES WHO WAS OKAY? YES. SO THE FIRST ONE IS BRENT JONES, AND THE

A GREAT TIGHT END.

THE COURT: MR. KATZ:

SECOND DOCUMENT THERE IS ACTUALLY -- IT'S NOT FROM THE GAME. IT'S JUST -- IT'S A REFERENCE DOCUMENT THAT TELLS YOU ABOUT JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

39

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

BRENT JONES, BECAUSE THE GAME DOESN'T TELL YOU ANYTHING ABOUT BRENT JONES. RIGHT NUMBER. BUT WE MADE UP A GRAPHIC, YOUR HONOR, THAT ACTUALLY MAKES IT A LITTLE BIT EASIER FOR YOU TO READ. UP? MAY I HAND THAT HE'S FACELESS. HE'S NAMELESS. DOESN'T HAVE THE

YOU CAN SEE THAT IF YOU COMPARE THE STATISTICS ON THE

SECOND PAGE, WHICH ARE THE REAL STATISTICS, WITH THIS NAMELESS, FACELESS PERSON THAT THEY'VE STRIPPED OF HIS IDENTITY, THEN IT TURNS OUT TO BE BRENT JONES. GOT THE SAME WEIGHT. HE'S GOT THE SAME HEIGHT. HE'S

HE PLAYS THE SAME POSITION, HE'S BEEN IN

THE LEAGUE THE SAME NUMBER OF YEARS. EVERYTHING IS THE SAME FOR ALL THESE VINTAGE TEAMS, THE TEAMS YOU WOULD WANT TO BE. CHAMPIONSHIP TEAMS, THE COWBOYS. THE COURT: I DON'T GET IT. WHAT YOU HANDED UP TO THE RAIDERS, THEIR

ME, THE FIRST ONE SAYS BRENT JONES. TURNER. MR. KATZ: THE COURT: MATERIALLY ALTERED. MR. KATZ: LOOKING -THE COURT: MR. KATZ: THE COURT:

THE SECOND ONE SAYS KEENA

THAT'S ANOTHER EXAMPLE. I DO NOT SEE WHERE YOU SAY IT WAS

LOOK AT MMM, YOUR HONOR.

YOU'RE NOT

I'M LOOKING AT MMM, THE FIRST PAGE. MMM, THE FIRST PAGE SAYS TE 89. YEAH.

JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

40

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IT. SORRY. DOES IT?

MR. KATZ: THE COURT: MR. KATZ:

SO -SO? AND IT GIVES STATISTICS, AND IT'S THE

STATISTICS WE'VE SHOWN YOU THERE, THE ACTUAL STATISTICS ARE ON THE SECOND PAGE OF THE DOCUMENT. JUST STRIP HIM. THE COURT: MR. KATZ: THE COURT: MR. KATZ: YOU ARE SAYING THIS PAGE RIGHT HERE? YES. THAT'S NOT FROM THE GAME. THAT'S WHAT? IT'S BRENT JONES, BUT THEY

THAT'S NOT FROM THE GAME?

THAT'S A REFERENCE WORK ON PRO FOOTBALL.

THERE'S A LOT OF REFERENCE WORKS OUT THERE ON PRO FOOTBALL. THE COURT: YOU ARE SAYING THE PEOPLE PLAYING THE

GAME JUST GET THIS PAGE THAT HAS 89 TE WITH NO NAME ON IT? MR. KATZ: RIGHT. SO IT'S THE WRONG NUMBER.

EVERYTHING ELSE IS THE SAME, THE WEIGHT, THE HEIGHT, EVERYTHING, BECAUSE IF YOU WANTED TO PLAY -- FIRST OF ALL, YOU KNOW WHO PLAYED TIGHT END ON THE '84 49ERS. THE COURT: BUT IT DOESN'T EVEN SAY 49ERS ON HERE,

WHERE DOES IT SAY 49ERS? MR. KATZ: THIS IS '92 49ERS. IT SAYS TEAM -- I'M

THIS WAS '92, YOUR HONOR, RATHER THAN '84. THE COURT: MR. KATZ: THE COURT: WHERE DO YOU SEE '92 EVEN? IT'S RIGHT HERE, YOUR HONOR (INDICATING). I SEE '94. IS THAT IT? OH, OH, I SEE

THAT BOX.

NINETY-TWO 49ERS. JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MR. KATZ: THAT'S JUST A RIPOFF.

SO ANYBODY WOULD KNOW THAT'S BRENT JONES. OKAY? THEY DID IT BECAUSE THEY

SO WHY DID EA DO THIS?

WERE TOLD TO DO IT BY THE DEFENDANTS, AND THAT'S THE SMOKING GUN, YOUR HONOR. I HAVE IT HERE. I'LL HAND IT UP.

MR. KESSLER: SUMMARY JUDGMENT? MR. KATZ: DISCOVERY DOCUMENTS. LAST FEW DAYS.

IS THIS DOCUMENT IN YOUR OPPOSITION TO

NO, IT'S NOT.

IT'S PART OF YOUR

WE DID NOT FIND THIS DOCUMENT UNTIL THE

THIS WAS PART OF THEIR SO-CALLED ROLLING

PRODUCTION WHICH TOOK TEN MONTHS TO ROLL. MR. KESSLER: MR. KATZ: YEAR, I BELIEVE. HOW MANY MONTHS HAVE YOU HAD THIS?

I THINK IT WAS PRODUCED IN APRIL OF THIS

BUT BECAUSE IT WAS PRODUCED IN THE TENTH

MONTH, AS YOU PROBABLY CALCULATED, WE JUST DIDN'T HAVE MUCH TIME TO DEAL WITH IT. MR. KESSLER: YOUR HONOR, I WOULD ALSO NOTE THIS IS

OUTSIDE OF THE LIMITATIONS PERIOD, WHERE WE HAVE A STIPULATION WITH COUNSEL, WHICH HE INSISTED UPON, THAT NO EVIDENCE COULD BE USED OUTSIDE OF THE LIMITATIONS PERIOD. SO NOT ONLY IS THIS

NOT IN HIS PAPERS AND PRESENTED HERE, BUT IT'S SOMETHING THAT'S NEVER BEEN IN THE CASE AND WE HAVE A STIPULATION CAN'T BE USED AT TRIAL. SO IT CANNOT BE CONSIDERED ON SUMMARY JUDGMENT. MR. KATZ: WE HAVE NO SUCH STIPULATION, YOUR HONOR. WE HAVE

I WOULD CHALLENGE HIM TO PRODUCE SUCH A STIPULATION. JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

42

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

NONE.

THIS IS SOMETHING, IT'S TRUE, IT HAPPENED IN 2001, BUT THEY'RE STILL DOING

YOU CAN SEE IT'S STILL HAVING AN EFFECT. THIS.

THEY'RE USING ALL THOSE PLAYERS, HUNDREDS OF PLAYERS,

HUNDREDS OF RETIRED PLAYERS THEY'RE USING, BEYOND THE 148, AND THEY'RE JUST RIPPING THEM OFF. BRENT JONES. BECAUSE EVERYBODY KNOWS IT'S

AND THEY DID IT WITH MALICE AFORETHOUGHT. WHO IS LASHON LAWSON (PHONETIC)? I BELIEVE SHE IS A MARKETING PERSON, BUT

THE COURT: MR. KATZ:

THE COPIES, IF YOU NOTICED, THE CCS WERE SENT TO MR. DOUG ALLEN, WHO IS THE NUMBER TWO PERSON, AND TO JOEL LINZNER, WHO IS TOP PERSON ON THIS ACCOUNT FOR ELECTRONIC ARTS. THIS IS COLD-BLOODED RIPPING OFF OF RETIRED PLAYERS. THE COURT: MR. KATZ: ALL RIGHT. WHAT ELSE?

ALSO, IN TERMS OF THE PAYMENTS, YOUR

HONOR, MR. KESSLER HAS CONTRADICTED HIMSELF IN WHAT HE HAS SAID TO THE COURT, WHAT HE SAID AT THE CLASS CERTIFICATION HEARING, QUOTE -- THE COURT SAYS: "ALL RIGHT. BUT YOU'RE TELLING ME THAT NO

MONEY'S EVER BEEN PAID OUT UNDER THIS? "MR. KESSLER: HONOR. NO, IT'S BEEN DONE TWICE, YOUR

THERE'S A PHOTOFILE PROGRAM WHICH WAS PAID IT'S NOT A LOT

ACCORDING TO HOW THE IMAGE WAS USED. OF MONEY, BUT... "

AND THEN WHAT THEY SAY ON THEIR BRIEF, FOOTNOTE 79 OF THEIR OPENING BRIEF, MR. NAHRA, ONE OF THE IN-HOUSE LAWYERS JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

43

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

SAYS, "THIS ESCROW ACCOUNT LANGUAGE -- " THE ESCROW ACCOUNT LANGUAGE WAS REMOVED BECAUSE IT DIDN'T MAKE ANY SENSE TO HAVE IT ANY LONGER BECAUSE IN APPROXIMATELY TEN YEARS OF LICENSING EFFORTS WE WERE NOT ABLE TO GENERATE ANY MONEY FOR AN ESCROW ACCOUNT, SO THERE WAS NEVER ONE SET UP. SO WAS MONEY GENERATED? WAS MONEY NOT GENERATED? I

TAKE THE POSITION, YOUR HONOR, ZERO, ZERO DOLLARS WERE PAID OVER THE YEARS, ZERO. AND WHERE IS THE MISSING ESCROW ACCOUNT?

IT'S NOT AS IF THEY SAID IT ONCE; YOU KNOW, WE'RE GOING TO CREATE AN ESCROW ACCOUNT, AND THEN THEY SORT OF FORGOT ABOUT IT. EVERY YEAR THEY SAID IT, YOUR HONOR. EVERY YEAR, WE

ARE GOING TO CREATE AN ESCROW AND THE MONIES WILL BE DIVIDED. WHY COULDN'T THEY WAKE UP AND SAY, WELL, GUESS WHAT, THERE'S NO ESCROW ACCOUNT? BECAUSE THERE WAS AN ESCROW ACCOUNT. THERE'S

ONLY ONE ESCROW ACCOUNT IN THIS CASE, AND IF THAT'S NOT UNDISPUTED, IT'S AT LEAST AN ISSUE OF FACT. THERE IS NOTHING MR. KESSLER SAID THAT IS NOT AN ISSUE OF FACT, AND I WROTE DOWN EVERYTHING HE SAID. I'M I

PREPARED TO GO THROUGH THOSE NOW, YOUR HONOR, IF YOU WISH. DON'T WANT TO BURDEN THE COURT'S TIME. THE COURT: MR. KATZ: THE COURT: THE THING IS I HAVE OTHER ITEMS -I UNDERSTAND. WE'VE GONE ON A LONG TIME.

I WANT TO

GIVE MR. KESSLER -- WHY DON'T YOU TAKE A MOMENT AND MAKE JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

44

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

WHATEVER LAST POINT YOU WOULD LIKE TO LEAVE ME WITH, AND THEN WE'LL HEAR FROM MR. KESSLER? MR. KATZ: LET ME JUST SEE WHAT I THINK THE MOST

OUTRAGEOUS THING HE SAID -- IT'S HARD TO CHOOSE. WELL, HERE'S ONE. IT'S JUST A LITTLE MORE LIGHT

HEARTED THAN THE OTHERS, BUT FOOTBALL IS A LIGHT-HEARTED PURSUIT, SO WHY NOT. MR. KESSLER IS A GREAT ONE FOR SAYING, THIS IS AN ABSOLUTE, I MEAN THERE'S NO ONE ELSE COULD BELIEVE THIS, AND IF MR. KATZ BELIEVED THIS, HE'S JUST AN IDIOT, MAKE HIM GIVE YOU THE EVIDENCE. I HEARD THAT. FULL OF IT. STICK AT. BUT AN EXAMPLE IS, HE SAID, THIS COULDN'T MEAN THE GLA'S. HE SAID I'M CALLING EVERYBODY A LIAR. I'M NOT CALLING AS IF I DON'T KNOW I HAVE TO GIVE YOU EVIDENCE. I HAVE TO BRING EVIDENCE HERE. OUR PAPERS ARE

THEY'VE GOT MORE EVIDENCE THAN YOU CAN SHAKE A

THEM A LIAR.

THEY SIGNED AN AGREEMENT THAT SAID RETIRED IT SAYS RETIRED PLAYERS. IT SAYS THOSE

PLAYERS WERE COVERED. WORDS.

NOW THEY'RE TRYING TO SAY SOMETHING DIFFERENT. WELL, MAYBE IF I WAS MAKING TENS OF MILLIONS OF DOLLARS, MAYBE I WOULD SAY SOMETHING DIFFERENT, TOO. THE COURT: MR. KATZ: PLAYERS. I DON'T KNOW.

THEY SIGNED THE EA AGREEMENT? YEAH, THE EA LICENSE SAYS RETIRED

THERE'S NO QUESTION ABOUT IT. JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

45

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 TRIAL?

SO HE SAYS THAT'S ONLY FOR DESIGNATED PROGRAMS, AND "DESIGNATED" MEANS FOR SURE NOT GL -- I MEAN, IT'S NOT A TERM OF ART. IT'S NOT A DEFINED TERM. SO I WENT BACK TO THE COLLEGE EDITION OF THE WEBSTER'S NEW WORLD DICTIONARY -- WHICH IS ACTUALLY WHAT GOT ME THROUGH COLLEGE, WE DIDN'T HAVE SPELL CHECKING AT THAT TIME -AND I LOOKED UP "DESIGNATED" JUST TO FIGURE OUT WHETHER SOMEHOW THE GLA COULD MEET THIS HIGH THRESHOLD OF BEING DESIGNATED, BECAUSE IT'S SO HARD TO BE A DESIGNATED PROGRAM. PRACTICALLY IMPOSSIBLE, RIGHT? HERE'S WHAT IT SAYS. "DESIGNATED: IT SAYS: I MEAN, IT'S

TO POINT OUT, MARK OUT, INDICATE,

SPECIFY, TO NAME." WELL, THE GLA PROGRAM WAS POINTED OUT, IT WAS MARKED OUT, IT WAS INDICATED, AND IT WAS NAMED. PROGRAM. IT'S CALLED THE GLA

SO HOW CAN IT BE THAT HE IS SAYING WITHOUT A DOUBT THAT'S HIS MODE OF ARGUMENT. HE SHOULD

THAT EXCLUDES THE GLA PROGRAM? FINE. LET HIM TRY IT.

LET HIM TELL IT TO THE JURY.

HAVE TO TELL IT TO THE JURY.

BUT IT DOESN'T PROVE ANYTHING

UNDISPUTEDLY, AND, AS I MENTIONED BEFORE, THEY WROTE THIS CONTRACT. IT'S THEIR BOILERPLATE. IT HAS TO BE CONSTRUED

AGAINST THEM, AND THERE'S NO QUESTION THAT THEY BREACHED. THE COURT: IS THIS A JURY CASE IF IT DOES GO TO

MR. KATZ:

IT IS A JURY CASE.

JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

46

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RIGHT. HONOR. HONOR.

THE COURT:

THAT'S WHY?

BECAUSE IT'S WHAT?

WHAT IS

THE LEGAL -- IS IT FIDUCIARY DUTY, IS THAT THE BREACH OF FIDUCIARY DUTY, IS THAT -- I WANT TO -MR. KATZ: WE HAVE A RIGHT TO A JURY TRIAL ON A

CONTRACT CLAIM AND ON THE BREACH OF FIDUCIARY DUTY CLAIM, I BELIEVE, YOUR HONOR. THE COURT: ALL RIGHT. OKAY, MR. KESSLER, I CAN

GIVE YOU LIKE FIVE MINUTES. MR. KESSLER: I'M GOING INCREDIBLY EFFICIENT, YOUR

MY MODE OF ARGUMENT IS ALL ABOUT EVIDENCE, NOT ABOUT

THE DICTIONARY. THE COURT: CHANCE TO SIT DOWN. MR. KATZ: HE CAN'T LIVE WITH THE DICTIONARY, YOUR WAIT. I WANT TO GIVE MR. KATZ THE

THE COURT:

PLEASE, PLEASE.

JUST HAVE A SEAT.

ALL

MR. KESSLER:

YOUR HONOR, EVERYTHING MR. KATZ SAID

IS AN ILLUSTRATION WHY SUMMARY JUDGMENT IS APPROPRIATE IN THIS CASE. HE MAKES THINGS UP. LET'S START FIRST WITH HIS

STATEMENT THAT MR. EYRICH, WHO WAS THE ACCOUNTANT OF THE PLAYERS ASSOCIATION, TESTIFIED THERE WAS AN ESCROW FUND. READING FROM MR. EYRICH'S DEPOSITION. HAVE A CITATION AND A QUOTE. "OKAY. I'M I

HE HAS NO CITATION.

HERE IS THE QUESTION: "

ARE YOU AWARE --

JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

47

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

I'M READING, SO YOU KNOW, ON PAGE -- IF I CAN FIND A PAGE NUMBER HERE, SORRY, YOUR HONOR -- PAGE 61. LINE -- FROM LINE SIX. "OKAY. CREATED?" THIS WAS A QUESTION THAT THEY ASKED. "ANSWER: NO, NOT THAT I AM AWARE OF. AND DIRECTING YOUR ATTENTION THEN TO ARE YOU AWARE OF ANY ESCROW ACCOUNT BEING OKAY? FROM

"QUESTION:

EXHIBIT 90, ARE THOSE INDIVIDUALS THAT RECEIVED MONEY PURSUANT TO A GLA, MONEY FROM EA? ARE YOU AWARE OF

ANY ESCROW ACCOUNT BEING CREATED WITH RESPECT TO THOSE MONIES? "I AM NOT AWARE OF ANY ESCROW ACCOUNT." THAT'S THE ONLY SWORN TESTIMONY FROM AN OUTSIDE ACCOUNTANT, NOT AN EMPLOYEE, A CPA, WHO WE HAVE NO REASON TO THINK WAS PERJURING HIMSELF. IT'S THE ONLY EVIDENCE IN THE I

CASE, AND HE COMES IN AND SAYS HE TESTIFIED TO THE OPPOSITE. DEFY HIM TO FIND A CITATION TO THE OPPOSITE OF THIS. HE TELLS YOU ABOUT THE HALL OF FAME. FRANKLY, HE LIED TO YOU ABOUT THIS. YOUR HONOR, HE

HERE'S THE EVIDENCE:

SAID THESE PAYMENTS TO THE PLAYERS WERE BECAUSE THEY WERE HIGHLIGHTED. YOU REMEMBER HIM TELLING YOU THAT, BECAUSE THEY FALSE.

WERE HIGHLIGHTED?

THE UNDISPUTED EVIDENCE IS THEY WERE PAID MONEY, $2,000 A PIECE, NOT CHUMP CHANGE, $2,000 A PIECE BECAUSE JUST JOAN MARIE COLUMBINI, CSR, RPR OFFICIAL COURT REPORTER, USDC 415-255-6842

48

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

TO BE INCLUDED IN THE HALL OF FAME GAME.

NOW, WHY?

BECAUSE EA

ALREADY WAS PAYING ITS RIGHTS TO PLAYERS, INC., 25 MILLION A YEAR, AS HE SAID, 25 MILLION A YEAR, BUT THAT DIDN'T INCLUDE ANY RETIRED PLAYER RIGHTS. SO WHAT THEY HAD TO DO IS THEY NOW SAID, I WANT SOME RETIRED PLAYERS FOR HALL OF FAME, I'M GOING TO PAY THEM EXTRA. WHY PAY THEM EXTRA? PERCENT WENT THERE. TWO THOUSAND DOLLARS A PLAYER. NOW, HOW DO I KNOW THIS? A HUNDRED

I'M READING

NOW -- I ONLY HAVE ONE COPY, YOUR HONOR.

I WILL HAND IT TO THE

COURT AFTER I READ IT -- A DOCUMENT THAT HAS THE BATES STAMP NUMBER PL 126889 AND PL 1138786. THIS WAS THE DOCUMENT SENT TO PEOPLE LIKE MR. ADDERLEY TO GET THEM TO JOIN THE HALL OF FAME GAME, AND HERE'S WHAT IT SAID: "THIS CONTRACT IS A NONEXCLUSIVE FOR FOUR YEARS AND COULD GENERATE OVER 1.34 MILLION FOR OUR MEMBERS." IT'S COMING FROM THE HALL OF FAME. "AND UP TO 200,000 FOR THE PRO FOOTBALL HALL OF FAME ASSISTANCE FUND. THE PROPOSAL WOULD BE AN

ANNUAL PAYMENT OF 2,000 A YEAR FOR A FOUR-YEAR PERIOD, OR A TOTAL OF 8,000 OVER THE TERM OF THE AGREEMENT." EACH PLAYER GOT $8,000 FOR DOING THIS. "HIS NAME, LIKENESS MAY BE USED ONLY