IN RE: NCAA Student-Athlete Name and Likeness Licensing Litigation

Filing 1

MOTION to Compel non-party Turner Broadcasting System to Produce all Documents responsive to Plaintiffs' properly served Subpoena Duces Tecum with Brief In Support by Ed O'Bannon. (Attachments: # 1 Memorandum of Law, # 2 Declaration, # 3 Exhibit -A, # 4 Exhibit -B, # 5 Exhibit -C, # 6 Exhibit -D, # 7 Exhibit -E, # 8 Exhibit -F)(eop) (Entered: 12/15/2011)

IN THE UNITED STATES DISTRICT COURT
DEC I 3 2011

FOR THE NORTHERN DISTRICT OF GEORGIA JA~',Clerk

-

.W\lfloI1I

Civil Action No: 4:09-cv-0 967-CW
Pending in the United States District
Court/or the Northern District 0/
California

In re NCAA Student-Athlete Name
and Likeness Licensing Litigation

Misc. N0'1_.-+-+-c~-l-t---f'\-""""~

PLAINTIFFS' MEMORANDUM OF LAW IN
'X,;
SUPPORT OF THEIR MOTION TO COMPEL PRODUCTION V!

i
'f

Movants, by their attorneys, respectfully request this Court to enter an Order
pursuant to Rule 37(a)(1) and Rule 45(c)(2)(B)(i) of the Federal Rules of Civil
Procedure, and Local Rule 37,1(A)( 1), compelling non-party Turner Broadcasting
System ("TBS") to produce the documents requested in the subpoena duces tecum
served on TBS on August 2, 2011 (the "Subpoena").
The grounds for this motion are set forth below and in the Declaration of
Daniel Herrera (hereafter "Herrera Dec!."), filed herewith.
I.

INTRODUCTION

Movants ("Plaintiffs") filed the above-captioned federal antitrust class action
(the "Antitrust Action") in the Northern District of California against Defendants
National Collegiate Athletic Association ("NCAA"), Collegiate Licensing
1

<n
,"",
~-"

Company ("CLC") and Electronic Arts Inc. ("EA Sports") (collectively
"Defendants"). The Plaintiffs include basketball legends Bill Russell, Oscar
Robertson and UCLA basketball great Ed O'Bannon, among others.
In brief, the Complaint alleges that the NCAA, its member schools and
conferences, and various other co-conspirators have violated the federal antitrust
laws by conspiring to foreclose Plaintiffs and class members from receiving
compensation in connection with the commercial exploitation of their names,
images, and/or likenesses following their college playing days. (Comp!. ~ 9.)1 The
Complaint further alleges that the NCAA, its members, and its for-profit business
partners reap billions of dollars in annual revenue from the commercial
exploitation of student athlete images through, among other things, television
broadcasts and rebroadcasts, sales and rentals ofDVD game and highlight films,
on-demand streaming and sales of games and clips, video games, and other
business ventures. Plaintiffs and other former players, whose names, images and
likenesses are utilized to generate this revenue, receive absolutely no compensation
whatsoever and never will under the current regime. (Comp!. ~ 18.)

"Compl." refers to the Second Consolidated and Amended Complaint (Dkt. No.
327) in the consolidated action.
1

2

After the Court denied several rounds of dismissal motions, Plaintiffs began
merits discovery and, in that connection, served subpoenas on various non-parties,
including TBS. (Herrera Dec!. at ~ 2.) As described more fully below, among the
documents sought from TBS are: (1) agreements affecting or concerning the
broadcast, licensing or other use of all or any portion of Division I Football or
Division I Basketball games, as well as any related financial reports; (2) exemplar
waiver forms that purport to require student athletes to relinquish their rights to
their names, images and likenesses; (3) documents "relating to policies governing
when TBS must or should secure a likeness release or consent form from a student
athlete"; (4) documents "relating to policies regarding copyright, ownership and/or
licensing of game footage and photographs"; and (5) documents relating to EA
Sports video games. (Herrera Dec!. at ~ 4; Ex. C.)
Despite over two months of meet-and-confer discussions, during which
Plaintiffs expended significant time and effort both narrowing the scope of their
document requests and explaining the relevance of responsive documents, TBS
has refused to produce a single document. (Herrera Dec!. at ~ 17.)

TBS is an integral source of information regarding the antitrust claims in
the litigation. Plaintiffs allege that the NCAA, along with its member schools and
conferences, worked with various third parties, including networks like TBS, to
3

"monetize" the student athletes' images by selling, licensing and marketing them
to businesses and consumers, thus creating and controlling a lucrative collegiate
licensing market. (Compl.

~~

11,351.) TBS is a premier participant in the

collegiate licensing market through, among other things, its agreements to
broadcast the NCAA Division I Men's Basketball Tournament, and licensing
agreements through which TBS acquired the right to broadcast Division I Football
Games. These agreements and the other documents sought in the Subpoena are
plainly relevant to the litigation and should be produced to Plaintiffs.
II.

LITIGATION BACKGROUND

Plaintiffs in the consolidated Antitrust Action are various former college
basketball and football players who are pursuing claims on behalf of themselves
and a class of all others similarly situated? Defendant NCAA is an unincorporated
association of various colleges, universities and athletic conferences that governs
collegiate athletics. The association is subdivided into divisions. Plaintiffs' claims
concern practices and agreements related to NCAA "Division 1" men's basketball
The Complaint brings claims on behalf of two putative classes: an Antitrust
Damages Class consisting solely of former student athletes, and an Antitrust
Injunctive Relief Class consisting of both current and former student athletes. (See
Compl. ~ 8.) The Antitrust Injunctive Relief Class seeks to enjoin the NCAA (as
well as its member conferences and schools) from enforcing the rules and
regulations that foreclose Plaintiffs from being compensated for the exploitation of
their image and likeness after they have graduated. (See id.)
2

4

teams and NCAA "Football Bowl Subdivision" men's football teams (formerly
known as "Division I-A"). Defendant CLC handles NCAA's license agreements,
and Defendant EA develops, publishes and distributes video games featuring
NCAA teams and athletes (collectively, "Defendants").
Plaintiffs' claims are premised on the Defendants' alleged conspiracy to
restrain trade in violation of Section 1 ofthe Sherman Act. Plaintiffs allege that
the Defendants and their named and unnamed co-conspirators - including NCAA
member conferences - violated and continue to violate federal antitrust laws by
engaging in a price-fixing conspiracy and a group boycottJrefusal to deal that has
unlawfully foreclosed the class members from being compensated in connection
with the commercial exploitation of their names, images, and/or likenesses
following the end of their college playing days. (See Compl. ,-r,-r 9, 175.)
The Complaint alleges that the NCAA, its members, and its for-profit
business partners make billions of dollars from the commercial exploitation of
student athlete names, images and likenesses through, among other things,
television broadcasts and rebroadcasts, sales and rentals ofDVD game and
highlight films, on-demand streaming and sales of games and clips, video games,
and other outlets. (Compl.,-r 18.) Plaintiffs allege that the NCAA, acting by and
through its members, accomplishes the scheme in part by requiring all student
5

athletes, as a condition of their eligibility to compete in NCAA athletic events, to
sign a form each year that purports to require each ofthem to relinquish in
perpetuity all rights to the commercial use of their images even after they graduate
and are no longer subject to NCAA rules. See, e.g., Compl.

~

23. The release

language contained in these required forms mirrors the NCAA's Bylaw 12.5.1.1.1
which states:
The NCAA [or a third party acting on behalf of the
NCAA (e.g., host institution, conference, local
organizing committee)] may use the name or picture of
an enrolled student-athlete to generally promote NCAA
championships or other NCAA events, activities or
programs.
Id. ~ 283 (bracketed text in original).
Release forms such as Form 08-3a (attached to the Complaint as "Exhibit
A") and NCAA rules, such as Bylaw 12.5.1.1.1, are relied on by the NCAA and its
member conferences and schools to execute agreements with licensees and
broadcasters that purport to convey the rights to utilize footage containing the
images and likenesses of student athletes in order to create and collect a broad
range of multimedia revenue streams. This money flows from, among other
things, "classic" games shown on ESPN Classic and other cable television
networks, sales and rentals ofDVDs of game films, sales of on-demand game

6

films, "stock footage" for corporate advertisers and video games. (Compl.

~

307.)

The "collegiate licensing market" is dominated and controlled, through various
licensing and other agreements, by the NCAA and its members. (Compl.

~~

306­

09.) The NCAA and its members make billions from these arrangements while the
former players make nothing. Id.
In denying Defendants' motions to dismiss, Judge Claudia Wilken
confirmed that the Complaint adequately alleges a conspiracy to restrain trade
among the NCAA, its member schools and conferences, and the defendant
licensees CLC and EA. See 0 'Bannon v. Nat 'I Collegiate Athletic Ass 'n, No. C
09-1967 CW, 2010 WL 445190 (N.D. Cal. Feb. 8, 2010). Specifically, she
concluded that "O'Bannon ... pleads agreements among NCAA, its members,
CLC and various distributors of material related to college sports ... [relating to)
licenses to distribute products or media containing the images of O'Bannon
and other former student athletes." Id. at *3 (emphasis added). Judge Wilken
also held that the allegations of the Complaint "sufficiently support O'Bannori's
theory that, after NCAA and its members obtain releases from student athletes,
CLC [the licensing arm of the NCAA and its members] brokers agreements that do
not compensate him or the putative class members for the use of their images." !d.

7

Moreover, Judge Wilken specifically acknowledged that Plaintiffs' antitrust
claims were not predicated solely on licenses involving the use of image and
likeness in video games. To the contrary, Plaintiffs' § 1 claims "also encompass
agreements for rights to televise games, DVD and on-demand sales and rentals,

and sales of stock footage of competitions, to name a few." (See, e.g., id., Dkt. No.
325 at 12 (citing Compl.

~~

332-60 (emphasis added))). Judge Wilken further

acknowledged that Plaintiffs' allegations concerning the numerous agreements
entered into by NCAA and its members, including agreements for the broadcast
of athletics events, support Plaintiffs' allegations of a relevant product market

described as the "collegiate licensing market." 0 'Bannon, 2010 WL 445190, at *5
(emphasis added).

III. SERVICE OF THE SUBPOENA AND MEET AND CONFER
EFFORTS
Plaintiffs served the TBS Subpoena on August 2, 2011. (Herrera Dec!. at ~
2.) The Subpoena required TBS to produce responsive documents by August 26,

2011. (Id.; Ex. A.) On August 17,2011, Plaintiffs' counsel, Bryan L. Clobes
("Clobes"), received a letter from James Lamberth ("Lamberth"), counsel for TBS,
which contained TBS' objections to the Subpoena. (Herrera Dec!. at ~ 3; Ex. B.)
In an effort to address and respond to TBS' objections, Plaintiffs sent
Lamberth a letter on August 31,2011, narrowing the document requests in the
8

Subpoena (the "Narrowed Requests"). (Herrera Dec!. at ~ 4; Ex. C.) Plaintiffs
offered to limit TBS' response to eight categories of documents on the condition
that TBS produce all responsive materials. (!d.)
The parties first met-and-conferred on September 9, 2011. (Herrera Dec!. at
~

5.) During this call, Lamberth indicated that despite Plaintiffs' substantial

narrowing of the Subpoena, the requests still sought the production of documents
not relevant to Plaintiffs' claims. (Herrera Dec!. at ~~ 5-6.) Lamberth asserted
that his analysis of the various orders denying Defendants' motions to dismiss did
not support Plaintiffs' requests for agreements between TBS and NCAA member
schools and conferences, although he did not state whether TBS was party to such
agreements. (Herrera Dec!. at ~ 6.) Moreover, he informed Plaintiffs that TBS
would not produce agreements with the NCAA itself because they should instead
be produced by the NCAA. 3 (Herrera Dec!. at ~ 7.)
During this first discussion, Plaintiffs spent significant time and effort
responding to Lamberth's objections. (Herrera Dec!. at ~ 8.) Plaintiffs explained
in detail the Complaint's allegations that the NCAA conspired with its member

Plaintiffs subsequently acquired a copy of a redacted agreement between TBS,
CBS and the NCAA for the broadcast of the NCAA Division I Men's Basketball
Tournament. Accordingly, Plaintiffs require TBS to produce an unredacted
version of this agreement.
3

9

schools and conferences to foreclose former student athletes from receiving
compensation in connection with the use of their images and likenesses. (Id.)
Plaintiffs further explained that the NCAA and its members perpetuate this scheme
by imposing rules and regulations requiring student athletes to relinquish those
rights, and then proceed to exploit those rights through, among other things,
television agreements between the conferences and networks like TBS. (Id.)
Plaintiffs also made clear that any production must include accounting/financial
records sufficient to understand any payments made by TBS under their various
agreements. (Herrera Dec!. at ~ 9.)
The parties resumed discussions on September 27,2011. (Herrera Dec!. at ~
10.) During this call, Lamberth stated unequivocally that TBS would not produce
its responsive documents. (Id.)

In addition to the objections raised during the

initial meet-and-confer, Lamberth asserted that TBS' position also was premised
on Lamberth's "extreme view" regarding confidentiality. (Id.) Lamberth asserted
that despite the Stipulated Protective Order entered in the underlying litigation, he
assumes that anything produced eventually will be made public. (Id.) Plaintiffs
again explained the relevance of the requested materials, and noted that the
NCAA's eventual production was unlikely to contain documents responsive to the
Subpoena issued to TBS. (Herrera Dec!. at ~~. 11-12.)
10

The parties last met-and-conferred on October 3, 2011. (Herrera Decl. at 1
13.) During the call, Lamberth made it absolutely clear that TBS would not
produce responsive agreements or financial information for the reasons detailed
above. (ld.) However, Lamberth did agree to search for communications
concerning or referencing the litigation or the Subpoena. (Herrera Decl, at 114)
Because Lamberth asserted that TBS would claim privilege over any
communications involving attorneys, Plaintiffs requested that TBS prepare a
privilege log detailing any documents withheld on that basis. (ld.) Plaintiffs
informed Lamberth that the log need not include post-subpoena communications
between Lamberth and his client, TBS. (ld.)
Lamberth contacted Plaintiffs on November 3, 2011 to provide an update
regarding TBS' search for communications responsive to Modified Request No.8.
(Herrera Decl. at 1 15.) Thereafter, on November 16, 2011, Lamberth advised that
TBS does not possess documents responsive to this request. (Herrera Decl. at 1
16.) In light of the fact that (after over two months of discussion regarding the
subpoena and its scope) TBS refused to produce a single document, further meet­
and-confer efforts were not warranted. (Herrera Decl, at 1 17.)

11

IV.

ARGUMENT
As a result of the extensive meet-and-confer discussions described above

and in the Herrera Declaration, Plaintiffs narrowed their document requests on the
condition that TBS produce all responsive, discoverable documents. (Herrera Decl.
at 1 4; Ex. C.) These documents are, from January 1,2000 to the present:
1. Any television or broadcast contracts affecting or concerning men's
Division I basketball or Division I football.
2. Any Licensing Agreements with the NCAA or any of its member schools
or conferences in which the license granted includes rights to the name,
image, or likeness of student athletes competing (or who competed in the
past) in men's Division I football or basketball.
3. Any documents, including, but not limited to, reports relating to the
Licensing Agreements described above.
4. Any specific documents regarding the question of who has rights to
continue to license, use, or sell all products containing images of former
student athletes, including any name, image, or likeness release or consent
form used or administered by TBS. TBS need only produce exemplar
forms rather than copies actually signed by student athletes.
5. Any documents relating to policies governing when TBS must or should
secure a likeness release or consent form from a student athlete.
6. Any documents relating to policies regarding copyright, ownership and/or
licensing of game footage and photographs.
7. Documents relating to EA Sports games, including, but not limited to, any
materials or information provided by TBS to EA (footage, broadcasts,
player bios and stats, consents or licenses from players) and information
on payments by or from EA to TBS.

12

(the "Narrowed Requests"). (See id.) TBS objects to producing documents
responsive to these categories on grounds ofrelevance and confidentiality.
Plaintiffs address the requests, and TBS' baseless objections, below.
A.

Legal Standard

Federal Rule of Civil Procedure 45 provides that "[if] an objection is made
[to a request to produce documents] ... (i) At any time, on notice to the
commanded person, the serving party may move the issuing court for an order
compelling production ...." Fed. R. Civ. P. 45(c)(2)(B)(i). Because TBS refuses to
produce its responsive documents, Plaintiffs "may move for an order compelling
disclosure or discovery. The motion must include a certification that the movant
has in good faith conferred or attempted to confer with the person or party failing
to make disclosure or discovery in an effort to obtain it without court action." Fed.
R. Civ. P. 37(a)( I); N.D. Ga. LR 37.1(A)(I). Plaintiffs have done that here.

"The scope of discovery under a Rule 45 subpoena to non-parties is the same
as that permitted under Rule 26." Liles v. Stuart Weitzman, LLC, No. 09-61448­
CIY, 2010 WL 1839229, at *2 (S.D. Fla. May 6, 2010). "Pursuant to [Rule]
26(b)(I), parties may obtain discovery regarding any non-privileged matter that is
relevant to any party's claim or defense." Morris v. Sequa Corp., No. II-CY­
0053-SLB, 2011 WL 3300697, at *I (N.D. Ala. July 21,2011) (internal quotations
13

omitted). "Relevant information need not be admissible at trial so long as the
discovery sought appears reasonably calculated to lead to the discovery of
admissible evidence." Liles, 2010 WL 1839229, at *2. The documents requested
by Plaintiffs are highly relevant to Plaintiffs' Antitrust Claims and NCAA's
defenses, particularly under the broad criteria for relevance applied to non-party
subpoenas. See Coker v. Duke & Co., Inc., 177 F.R.D. 682, 685 (MD. Ala. 1998)
(noting that even "[w]here there is a doubt over relevancy, the court should still
permit discovery.").
"When ruling on motions to compel in the Rule 45 context, courts apply a
balancing test, weighing the probative value of the documents sought against the
burden of complying with the subpoena." SE. Mech. Servs. v. Brody, No. 09-CY­
0086-GET, 2009 WL 3095642, at * 3. (N.D. Ga. June 22, 2009). Among the
factors this Court may consider are the relevance of the information requested, the
requesting party's need for the documents, the breadth of the document request, the
time period covered by the request and the burden imposed on the non-party.
Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5 th Cir. 2004). A party
seeking to avoid discovery on the basis of burden "must substantiate that position
with detailed affidavits or other evidence establishing an undue burden ... [and]
cannot rely on simple conclusory assertions about the difficulty of complying with
14

the discovery requests." Coker, 177 F.R.D. at 686. Because Plaintiffs' need for
the requested relevant documents is great and the (alleged) burden imposed on
TBS is small, the Court should grant Plaintiffs' Motion to Compel.
B.

TBS' Television and Licensing Agreements and Related Revenue
Reports Are Relevant and Discoverable,"

Plaintiffs seek agreements affecting or concerning the broadcast, licensing or
other use of all or any portion of Division I Football or Division I Basketball
games, and financial reports detailing payments made pursuant to the agreements.
(Modified Request Nos. 1-3; Ex. C.) TBS refuses to produce agreements
pertaining to NCAA member conferences and schools, as well as related financial
records, on relevance grounds, claiming that that the agreements are irrelevant
because they are with non-parties, rather than the NCAA. Furthermore, TBS
contends that its agreements - including its agreement for the broadcast of the
NCAA Basketball Tournament - and financial data are confidential and
proprietary, and cannot be produced even if protected by a confidentiality order.
(Herrera Decl.

at~~

10, 13.)

Modified Request Nos. 1-3 seek TBS's television and licensing agreements, as
well as related financial reports. (Herrera Decl. at Ex. C.) Plaintiffs address these
requests together because of the significant overlap between the documents sought
by the requests and TBS' objections.

4

15

The broadcast and licensing agreements and related financial reports sought
by Plaintiffs are highly relevant to the claims and defenses in this suit. For
example, since 20 I I, TBS and its network affiliates have broadcast "March
Madness," the NCAA Men's Division I championship tournament. This
agreement, entered into between Defendant NCAA and TBS, is clearly relevant
and discoverable.
Moreover, although TBS has not identified additional responsive materials
in its possession, it certainly has other documents responsive to these requests.
From 2002-2006, TBS regularly broadcast games featuring athletes from the Big
12 and Pacific-12 conferences through its Big Play Saturday programming. News
reports indicate that TBS secured the rights to these lucrative properties through
licenses provided by FOX Sports.' TBS has neither confirmed the existence of
these agreements, nor indicated whether it possesses additional, similarly
responsive agreements. (Herrera Dec!. at ~ 7.)
In addition, TBS may be party to licensing agreements that grant the right to
use all or any portion of Division I Football or Division I Basketball games. As the
home of the NCAA Division I Men's Basketball Tournament, TBS may have
licensed footage from these contests, footage that contains the images and
5

See http://www.fanblogs.comlbigI2/006967.php
16

likenesses of former athletes. Similarly, TBS broadcasted Southeastern
Conference football games, as well as other Division I Football events, during the
1980s and 1990s. TBS may own the rights to the footage of these contests and,
thus, may have entered into licensing agreements during the relevant time period
that granted third-parties the right to utilize this footage. These documents are
relevant and must be produced.
First, as Judge Wilken has already determined, Plaintiffs' antitrust claims
"encompass agreements for rights to televise games, DVD and on-demand sales
and rentals, and sales of stock footage of competitions, to name a few." (Dkt. No.
325 at 12 (citing Compl.

~,-r

332-60)). Judge Wilken also confirmed that

"agreements for the broadcast of athletic events" are alleged to impact and define
the "Collegiate Licensing Market," the defined relevant market in the case. See

o 'Bannon, 2010 WL 445190,

at * 5 (O'Bannon "identifies numerous agreements

entered into by the NCAA and its members, including for the broadcast of athletic
events. These allegations suggest that the market exists.") Market definition is an
essential element of Plaintiffs' claims. GulfStates Reorganization Group, Inc. v.
Nucor Corp., No.1 :02--cV-2600-RDP, 2011 WL 5320620, at n. 41 (N.D. Ala.
Sep. 29, 2011) (Shennan Act §1 claims require plaintiffs to define the relevant

17

market and establish that defendants possessed power in that market (citing Levine
v. Cent. Fla. Med. Affiliates, Inc., 72 F.3d 1538,1551 (11 th Cir. I996»).
Second, another district court has already confirmed the discoverability of
the broadcast and licensing agreements requested by Plaintiffs. On November 15,
2011, Judge Marc Treadwell in the Middle District of Georgia granted Plaintiffs'
motion to compel the Atlantic Sun Conference to produce its broadcast and
licensing agreements, as well as related revenue reports and other documents.

Keller v. Nat 'I Collegiate Athletic Ass 'n, Case No.5: II-mc-00014-MTT, Dkt. No.
9 (M.D. Ga. Nov. 15, 2011) (attached hereto as Exhibit D). In response to
Plaintiffs' motion to compel, Atlantic Sun argued that the agreements were
irrelevant because "none of these contracts ... directly involve the Defendants or
any conspiracy to restrain trade." (!d., Dkt. No.7 at 7.) The court disagreed and
compelled production, noting that "at this point it's really not a question of
relevancy that we're looking at ... if it's just relevancy, you know, particularly
since we do have the protective order in the underlying case, I don't think that's
grounds for not producing it." (Nov. 15,2011 Hr'g Tr. at 3) (attached to Herrera
Decl. as Exhibit E).6

6 In addressing a related issue, the court also noted that "it seems to me that there is
a sufficient nexus between the claims against NCAA and the member
conferences...." (Ex. E to Herrera Decl. at 3.)
18

Third, Plaintiffs are entitled to the production of these television contracts
and licensing agreements because they help demonstrate how NCAA rules and
regulations are used to carry out this scheme and impair the future rights of student
athletes. As discussed above, release forms required by NCAA rules are
incorporated into their members' agreements with licensees and broadcasters (such
as TBS) and purport to convey the rights in perpetuity to utilize footage containing
the names, images and likenesses of student athletes. These agreements create a
broad range of multimedia revenue streams total ing tens of billions of dollars.
Fourth, Plaintiffs also seek money damages and require the production of the
agreements (and related financial information) to determine the value of the rights
conveyed as a consequence of the anticompetitive scheme. Bailey Indus. v. CLJP,

Inc., 270 F.RD. 662, 669 (N.D. Fla. 2010) (compelling production ofunredacted
invoices from a non-party and noting relevance of production to determining an
appropriate measure of damages in the underlying litigation).
TBS objects to producing these agreements to the extent that the
agreements are with NCAA member conferences, rather than the NCAA itself,
claiming that such agreements are irrelevant to Plaintiffs' claims against the
NCAA. (Herrera Decl. at '\)'\) 10, 13.) This objection is meritless. Plaintiffs' claim
(confirmed by Judge Wilken) is that the NCAA and its members, along with its
19

for-profit business partners, conspired to restrain trade by requiring student athletes
to relinquish their rights to compensation for the commercial exploitation of their
images and likenesses after their playing days are over. 0 'Bannon, 20 I0 WL
445190, at *3. While the NCAA itself enters into some broadcast or licensing
agreements/ most of the agreements that attempt to convey rights to use student
athlete names, images and likenesses are entered into by NCAA members, such as
the SEC. Thus, agreements relating to the broadcast or use of NCAA members'
athletic events are the by-product of the alleged conspiracy, entered into by an
alleged co-conspirator. (Compl. 118.) Their relevance cannot be questioned. See,
e.g.,

o 'Bannon, 2010 WL 445190, at *5 ("[O'Bannon] identifies numerous

agreements entered into by the NCAA and its members, including agreements

for the broadcast of athletics events.") (emphasis added)). In light of the broad
scope of discovery permitted by the Federal Rules, as well as the presiding court's
rulings, even ifthis Court has "doubt]s] over relevancy, the [Court] should still
permit discovery." Coker, 177 F.R.D. at 685.

For example, the NCAA Division I Basketball tournament contract is between
the NCAA and the Networks (TBS and CBS) that televise the games. As noted
above, Plaintiffs require an unredacted version of this agreement.
7

20

"

C.

Exemplar Student Release Forms And Documents Concerning
Policies Or Practices Regarding The Use Of Student Athletes'
Names, Images And Likenesses Are Relevant To The Plaintiffs'
Claims.s

Plaintiffs requested that TBS produce unsigned, exemplar waiver forms that
purport to require student athletes to relinquish their rights to their names, images
and likenesses; documents "relating to policies governing when TBS must or
should secure a likeness release or consent form from a student athlete; and
documents "relating to policies regarding copyright, ownership and/or licensing of
game footage and photographs." (Modified Reqs. Nos, 4-6; Herrera Dec!. Ex.

cl

There is no question that the waiver forms sought by Narrowed Request No.
4 are relevant to the claims or defenses in the suit, as they are the focus both of
specific allegations in the complaint,

(~~

22-24), and of several of the NCAA's

affirmative defenses. (See e.g., Dkt. 330 at 55 (Affirmative Defense 13)
("Plaintiffs' claims are barred, in whole or in part, because they acquiesced in,

Plaintiffs also address Narrowed Request Nos, 4-6 contemporaneously due to the
significant overlap between the requests.
8

Plaintiffs do not know whether TBS possesses documents responsive to these
requests, or Narrowed request No.8, discussed below. TBS neither confirmed nor
denied the existence of these documents during the meet-and-confer process, and
instead chose to focus only on the relevance of television and licensing agreements
to the underlying litigation.

9

21

consented to, waived, disclaimed, represented that they had no cognizable property

. nterest.... ")) .
I
Likewise, TBS's documents reflecting policies regarding the use of student
athletes' names, images and likenesses (Narrowed Request No.5) or ownership
and licensing of game footage (Narrowed Request No.6) are clearly relevant and
discoverable. Plaintiffs' claims focus on the conveyance of rights from student
athletes, to the NCAA and its members, and to third parties such as TBS and
licensees. The manner by which the rights to student athlete names, images and
likenesses are purportedly conveyed is an issue central to the litigation.
D.

Documents Relating to EA Sports Are Likewise Relevant and
Discovera ble.

Narrowed Request No.8 seeks documents related to EA Sports, including
agreements entered into by TBS, materials provided by TBS to EA, and royalty
reports detailing related revenues. (Herrera Dec!., Ex. C.) Plaintiffs' Complaint is
replete with references to Defendant EA Sports, an alleged coconspirator, and the
revenues that EA, the NCAA and NCAA member conferences derive directly from
the exploitation of current and former student athlete likenesses. See Comp!. ~ 40 I
("The NCAA, as well as individual schools and conferences, benefits financially
from the NCAA's license agreement with EA."); see generally Id. ~~ 371-419.
Documents relating to EA's use of player likenesses and biographical information
22

provided to EA by TBS are integral to the continuing exploitation of image and
likeness in EA Sports games.

E.

TBS Cannot Refuse To Produce Relevant Documents On The
Basis Of Confidentiality.

TBS objects to producing its responsive documents on the basis of
confidentiality (Herrera Decl. at ~ I0), even though its production of confidential
material may be made subject to the provisions of the broad Protective Order
entered in this case. (See Dkt. No. 320.)10 By its terms, that Order allows
documents produced by a non-party to be designated as confidential and even
provides for a "Counsel Only" designation for "the financial terms of a party's
licensing, broadcast or other commercial agreements ... the net revenues a party

10 The Middle District of Georgia and the Texas Attorney General's Office rejected
identical objections raised by the Atlantic Sun and Big 12, respectively. Based in
part on the Protective Order entered in the underlying litigation, the Judge in the
Middle District of Georgia ordered Atlantic Sun to produce its broadcast and
licensing agreements. (See Ex. Eat 4-11.) Indeed, Judge Treadwell noted that,
"I'm inclined, unless there's a specific document that you could make a particular
showing with regard to, I'm inclined to assume and rule that the protective order
gives [Atlantic Sun] the protection they need." (ld. at 7.) Similarly, the Texas
Attorney General ordered the University of Texas to produce broadcast and
licensing agreements and related revenue reports pertaining to the University of
Texas and the Big 12 in response to Plaintiffs' Open Records requests. Although
the University of Texas and the Big 12 contended that the requested information
was confidential and therefore should be withheld from production, the Texas
Attorney General overruled their objections and ordered production. (Nov. 4, 2011
Ltr. from J. Luttral to Z. Angadicheril, at 4-7 (attached as Ex. F to Herrera Decl.j).
23

receives for sales of products, licenses, rights, etc., and the royalty, licensing or
similar payments made or received by a party." (Id. at 1 II.) Moreover, the court
recently entered a stipulated Addendum to the Protective Order that provides an
"Outside Attorneys' Eyes Only" designation for materials that are "especially
sensitive such that the producing party believes in good faith that it would suffer
competitive harm if publicly known or known by agents and employees of other
parties or non-parties who would have access under the Stipulated Protective Order
to Confidential Material." (Dkt. No. 401 at'll 2.) As such, the Protective Order
contemplates and protects the production of the very documents that TBS refuses
to produce. In light of the broad scope of and protections provided by the
Stipulated Protective Order, including the various designations provided therein,
TBS' "confidentiality concerns are not sufficiently compelling." Festus & Helen
Stacy Found. v. Merrill Lynch, Pierce Fenner & Smith Inc., 432 F. Supp. 2d 1375,
1380 (ND. Ga. 2006) (compelling production of confidential financial information
because "there is no absolute privilege for trade secrets and similar confidential
information ... the appropriate solution is rather to compel discovery of the
documents subject to a protective order." (relying on Fed. Open MIa. Comm. of
Fed. Reserve Sys. v. Merrill, 443 U.S. 340,362 (1979)).11

II

Accord. SE. Mech. Svcs., 2009 WL 3095642, at *7 (ordering non-party to
24

CONCLUSION

Through its agreements with the NCAA and member institutions, TBS is a
major participant in the collegiate licensing market. Thus, its responsive
documents are highly probative of the claims and defenses raised in the underlying
litigation. Accordingly, this Court should not sanction TBS's complete refusal to
respond. Plaintiffs respectfully request that the Court enter an order compelling
TBS to produce its responsive documents.

Respectfully submitted,

This

~y of December 20 I I
~.,..._
')
./

~

~HEDS

CANFIELD

K

WLES, LLC

produce unredacted confidential contractual provisions since they "may be
produced pursuant to the parties' Consent Protective Order with the appropriate
confidential designation.") (internal citations omitted); Urim Corp. v. Krongold,
No. Civ.A. 05-CV-0633-GET, 2006 WL 22224012, at *3 (ND. Ga. Aug. 2, 2006)
("Accordingly, [the non-parties] have stated insufficient grounds to escape their
obligation to produce the requested documents ... in light of legitimate privacy
concerns for private financial information ... all documents produced ... are
subject to plaintiffs execution of a reasonable confidentiality agreement.");
Melder v. State Farm Mut. Auto. Ins. Co., No. 08-CV-1274-RWS, 2008 WL
4682180, at * I (N.D. Ga. Oct. 21,2008) (denying motion to quash 30(b)(6)
subpoena relating to "confidential and proprietary information" as "[the non­
party's] concerns about confidential proprietary information can be resolved by a
confidentiality agreement.")
25

•

Kenneth S. Canfield
Georgia Bar No. 10774
Kimberly J. Johnson
Georgia Bar No. 687678
1355 Peachtree Street, N.E.
Suite 1600
Atlanta, Georgia 30309-3238
Tel: [phone]
Fax: [phone]

Attorneys for Plaintiffs
Bryan L. Clobes
Ellen Meriwether
Daniel O. Herrera
CAFFERTY FAUCHER LLP
1717 Arch Street
Suite 3610
Philadelphia, PA 19103
Tel: [phone]
Fax: [phone]
[e-mail]
Jon T. King
HAUSFELD LLP
44 Montgomery Street
Suite 3400
San Francisco, CA 94104
Tel: [phone]
Fax: [phone]
[e-mail]
Michael D. Hausfeld
HAUSFELD LLP
1700 K Street, NW
Suite 650
Washington, DC 20006
26

Tel: [phone]

Fax: [phone]

[e-mail]

27

i

CERTIFICATE OF COMPLIANCE
Pursuant to N.D. Ga. L.R. 7.ID, I hereby certify that the foregoing brief
complies with the font and point selections approved by the Court in L.R. 5.1B. It
was prepared on a computer, using Times New Roman 14-point font.

28

CERTIFICATE OF SERVICE
I hereby certify that on December 13,2011, I caused a true and correct copy
of the Motion to Compel Production of Documents by Non-Party, Turner
Broadcasting System, Plaintiffs' Supporting Memorandum of Law and the
Declaration of Daniel Herrera to be served on Counsel for non-party Turner
Broadcasting System, by First Class U.S. Mail and electronic mail at the following
address:
James A. Lamberth, Esq.
TROUTMAN SANDERS LLP
Suite 5200, Bank of America Plaza
600 Peachtree Street, N.E.
Atlanta, GA 30308-2216
[e-mail]
Counsel to Turner Broadcasting System.

29