O'Bannon, Jr. v. National Collegiate Athletic Association et al

Filing 166

ORDER RESOLVING MOTIONS IN LIMINE (Docket Nos. 1063, 1069 in case no. 09-1967 CW). Signed by Judge Claudia Wilken on 5/30/2014. (ndr, COURT STAFF) (Filed on 5/30/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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EDWARD O’BANNON, et al.
Plaintiffs,

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United States District Court
For the Northern District of California

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ORDER RESOLVING
MOTIONS IN LIMINE
(Docket Nos. 1063,
1069)1

v.

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No. C 09-3329 CW

NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION; ELECTRONIC ARTS
INC.; and COLLEGIATE LICENSING
COMPANY,
Defendants.
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On May 28, 2014, the Court held a pretrial conference and

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heard arguments regarding the parties’ motions in limine.

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considering the parties’ submissions and oral argument, the Court

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resolves the motions in limine as set forth below.

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I.

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Plaintiffs’ Motions in Limine
A.

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After

No. 1: Motion to Exclude Non-Expert Live Witnesses from
Testifying in the NCAA’s Case Who Were Not Made
Available for Live Testimony in Plaintiffs’ Case-inChief

Plaintiffs move to preclude three of the NCAA’s witnesses -Mark Emmert, David Berst, and Wallace Renfro -- from testifying at
trial unless the NCAA makes them available to testify during
Plaintiffs’ case-in-chief.
This motion is DENIED.

As explained at the pretrial

conference, each live witness will only be called to testify once,
at which time each side will conduct both its direct and crossexaminations.

Accordingly, it is not necessary to ensure that the

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All citations in this order to docket numbers refer to the docket
in case no. 09-1967.

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NCAA’s non-expert witnesses be made available to testify during

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Plaintiffs’ case-in-chief.

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question these witnesses fully when the NCAA presents its defense

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case.

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Berst, then it shall notify Plaintiffs by 11:00 a.m. on June 4,

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2014, as set forth below, and Plaintiffs may use their

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depositions.

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B.

If the NCAA does not intend to call Mr. Renfro or Mr.

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United States District Court
For the Northern District of California

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Plaintiffs will have an opportunity to

No. 2: Motion to Exclude Testimony of Previously
Undisclosed NCAA Witnesses, or Requiring the NCAA to
Produce Them for Deposition Prior to Trial

Plaintiffs move to preclude nine of the NCAA’s non-party
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witnesses from testifying at trial.

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NCAA failed to disclose these witnesses under Federal Rule of

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Evidence 26 and that, as a result, they have not had an

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opportunity to depose any of these witnesses.

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Plaintiffs contend that the

This motion is GRANTED in part and DENIED in part.

The NCAA

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may call the following six witnesses at trial: Britton Banowsky,

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David Brandon, Mary Sue Coleman, Mark Hollis, Bernard Muir, and

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Harris Pastides.

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these witnesses might be called to testify at trial because each

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of them submitted a declaration in support of the NCAA’s motion

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for summary judgment in December 2013.

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pretrial conference, the NCAA shall make each of these witnesses

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available, by video-conference if necessary, for a deposition of

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up to four hours no less than seventy-two hours before the witness

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is called to testify at trial.

Plaintiffs have known for several months that

As discussed at the

These witnesses will only be

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Plaintiffs originally moved to preclude twelve of the NCAA’s
witnesses from testifying but the NCAA, in its opposition brief,
withdrew three of those witnesses: Dustin Page, Kendall Spencer, and
Wendy Walters.

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permitted to testify on the matters discussed in their summary

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judgment declarations and only to the extent permitted by the

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ruling on Plaintiffs’ motion in limine no. 7.

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The NCAA may not call Kevin Anderson, Michael Drake, and Rod

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McDavis because it did not provide Plaintiffs with adequate notice

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that these witnesses might testify at trial.

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C.

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This motion is GRANTED.

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United States District Court
For the Northern District of California

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The NCAA has proffered no relevant

testimony from Mr. Vaccaro on any disputed issues of fact in this
case.
D.

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No. 3: Motion to Exclude Testimony of John Paul “Sonny”
Vaccaro

No. 4: Motion to Exclude Witnesses, Except for One Party
Representative, from the Courtroom Unless They Are
Testifying

This motion is DENIED as moot in light of the NCAA’s
representation that only one of its testifying corporate
representatives will be present during the trial.
E.

No. 5: Motion to Exclude Evidence of Failure to Mitigate

Plaintiffs have withdrawn this motion.
F.

No. 6: Motion to Preclude Evidence and Argument That
There Is No Restraint on Former College Athletes

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Plaintiffs have withdrawn this motion.

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G.

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No. 7: Motion to Preclude Speculative Testimony From
Conference Commissioners and University Administrators

Plaintiffs move to exclude the testimony of Division I
conference commissioners and university administrators regarding
the NCAA’s procompetitive justifications of (1) competitive
balance, (2) amateurism, and (3) the integration of academics and
athletics.

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This motion is GRANTED in part and DENIED in part.

Both the

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conference commissioners and university administrators may testify

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about amateurism and the integration of academics and athletics.

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However, only the conference commissioners may testify about

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competitive balance.

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Federal Rule of Evidence 701 precludes lay witnesses from

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offering opinion testimony on matters that are not “rationally

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based on the witness’s perception.”

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this rule, the university administrators who submitted summary

Fed. R. Evid. 701(a).

Under

United States District Court
For the Northern District of California

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judgment declarations are not qualified to offer their opinions on

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whether the challenged restraint enhances competitive balance

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among Division I football or basketball teams.

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administrators -- many of whom do not even work in the athletic

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department of their respective universities -- cannot express

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probative opinions about the level of competitive balance between

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schools based solely on their experience implementing the

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challenged NCAA rules or observing how they operate within

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individual schools.

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may potentially offer probative testimony on this subject because

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their work regularly exposes them to competition between schools.

These

The conference commissioners, in contrast,

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H.

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Plaintiffs have withdrawn this motion.

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No. 8: Motion to Preclude Evidence of Offsets

No. 9: Motion to Preclude Evidence of Aggregate College
Athlete Graduation Rates

This motion is DENIED.

Plaintiffs’ contention that this

evidence is irrelevant and prejudicial does not justify excluding
it at this stage.

Concerns about relevance and prejudice are

reduced significantly when, as here, a case is tried to a judge
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instead of a jury.

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(9th Cir. 1994) (“[I]n a bench trial, the risk that a verdict will

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be affected unfairly and substantially by the admission of

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irrelevant evidence is far less than in a jury trial.”).

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J.

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United States District Court
For the Northern District of California

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See EEOC v. Farmer Bros. Co., 31 F.3d 891, 898

No. 10: Motion to Permit Presentation of National Labor
Relations Board Factual Findings

This motion is DENIED.

Plaintiffs may not introduce the

factual findings set forth in the recent decision of the Chicago
Regional Director of the National Labor Relation Board (NLRB) in
Northwestern University & College Athletes Players Association,
No. 13-RC-121359, 2014 WL 1246914 (Mar. 26, 2014).
K.

No. 11: Motion to Preclude Evidence and Argument
Regarding the Promoting-Other-Sports Justification and
Require an Offer of Proof on the Integration-ofAthletics-and-Education Justification

This motion is DENIED.

Although the NCAA may not argue that

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the challenged restraint helps promote women’s sports or less

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prominent men’s sports, it will not be precluded from presenting

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evidence merely because it relates to women’s sports or less

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prominent men’s sports.

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disputed issues of fact and, like the evidence discussed above,

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carries a minimal risk of prejudice because this case will not be

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tried to a jury.

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regulate the admission of evidence at trial to ensure that time is

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not wasted on the presentation of irrelevant evidence or

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previously rejected arguments concerning women’s sports and less

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prominent men’s sports.

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exclude any evidence or arguments on this subject at the present

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stage nor to require an offer of proof on the NCAA’s argument that

This evidence may be relevant to other

The Court may exercise its traditional power to

Accordingly, it is not necessary to

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the integration of academics and athletics is a legitimate

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procompetitive justification.

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This motion is DENIED as moot.

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United States District Court
For the Northern District of California

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No. 12: Motion to Preclude Evidence and Argument
Regarding Single Enterprise Defense
The NCAA has represented

that it will withdraw its single-enterprise defense and “will not
introduce evidence that it is a single enterprise” at trial.
Opp. MILs at 21.

NCAA

These representations shall not preclude the

NCAA from presenting evidence or arguing that it operates as a
joint venture.
M.

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No. 13: Motion to Preclude Evidence and Argument
Regarding Affirmative Defense of Consent

This motion is DENIED.

As explained at the pretrial

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conference, motions in limine are not a proper vehicle for

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resolving dispositive issues of law.

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II.

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NCAA’s Motions in Limine
A.

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No. 1: Motion to Exclude Evidence and Argument About
Injuries in College Sports

This motion is DENIED.

Plaintiffs may present evidence of

injuries suffered by student-athletes to the extent that it is
relevant to their claims in this case.

Once again, this evidence

carries a minimal risk of prejudice because this case will be
tried to a judge instead of a jury.
B.

No. 2: Motion to Exclude Evidence and Arguments about
Licensing Unrelated to Live Broadcasts, Rebroadcasts or
Clips, or Videogames

This motion is DENIED.

Plaintiffs may present evidence or

arguments concerning licensing unrelated to live broadcasts,
archival footage, and videogames to the extent that they are
relevant to their claims in this case.
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C.

No. 3: Motion to Exclude References to the NLRB Decision
Regarding College Athlete Unionization

This is GRANTED.

As noted above, Plaintiffs may not

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introduce as evidence any of the factual findings or legal

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conclusions contained in the NLRB Chicago Regional Director’s

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decision in Northwestern University, No. 13-RC-121359, 2014 WL

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1246914.

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extent that it is relevant, as non-binding legal authority in

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their trial brief.

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D.

United States District Court
For the Northern District of California

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Plaintiffs may, however, cite this decision, to the

No. 4: Motion to Exclude Reports of Third-Party
Observers and Media About Collegiate Athletics

This motion is GRANTED in part and DENIED in part.
Plaintiffs may not introduce any media reports or reports produced
by third-party groups, such as the Knight Commission,
truth of the matter asserted in those reports.

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for the

Plaintiffs’

experts, however, may refer to certain facts or data contained in
these reports to explain how they formed their opinions.

Federal

Rule of Evidence 703 permits an expert witness to rely on
inadmissible facts or data if “experts in the particular field
would reasonably rely on those kinds of facts or data in forming
an opinion on the subject.”

Here, experts for both parties relied

on facts and data contained in media reports and the Knight
Commission report; accordingly, these experts may refer to
relevant portions of those reports to explain how they formed
their opinions.
As noted at the pretrial conference, Plaintiffs may also
introduce statements from the Knight Commission report for
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The NCAA also moved to preclude Plaintiffs from introducing any
reports produced by the Drake Group but Plaintiffs, in their opposition,
indicated that they do not intend to introduce any such reports.

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impeachment purposes.

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introduced for the truth of the matter asserted therein unless

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Plaintiffs can show that they were made “under penalty of

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perjury.”

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declarant’s prior statement does not constitute hearsay if it “is

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inconsistent with the declarant’s testimony and was given under

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penalty of perjury at a trial, hearing, or other proceeding or in

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a deposition”).

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while a witness’s prior inconsistent statements may always be used

Those statements, however, may not be

See Fed. R. Evid. 801(d)(1)(A) (providing that a

The Federal Rules of Evidence make clear that,

United States District Court
For the Northern District of California

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for impeachment purposes, they may only be introduced as

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substantive evidence if they were made under oath.

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Savings Bank of Puget Sound, 850 F.2d 1345, 1356 (9th Cir. 1988)

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(noting that “prior inconsistent statements given in a prior

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proceeding under oath may come in as substantive evidence” under

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Rule 801(d)(1)(A) (emphasis added)).

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E.

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See Pope v.

No. 5: Motion to Bar Admission of Walter Byers’ Book,
Unsportsmanlike Conduct

This motion is GRANTED.

Mr. Byers’ book constitutes

inadmissible hearsay and, as such, may not be introduced for the
truth of the matter asserted therein.

As noted above, however,

under Federal Rule of Evidence 703, Plaintiffs’ experts may refer
to any facts or data contained in the book to the extent that they
actually relied on those facts or data in forming their opinions
and experts in their field would have reasonably relied on the
same facts and data.
F.

No. 6: Motion to Preclude Expert Testimony by Taylor
Branch and Ellen Staurowsky

The NCAA moves to preclude two of Plaintiffs’ experts, Taylor
Branch and Ellen Staurowsky, from testifying.
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First, it moves to

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preclude Mr. Branch from offering expert opinion testimony under

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Federal Rule of Evidence 702 on whether or not amateurism is a

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legitimate procompetitive justification for the challenged

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restraint.

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testifying because it contends that she is merely a conduit for

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the admission of hearsay evidence.

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Second, it moves to preclude Dr. Staurowsky from

This motion is GRANTED in part and DENIED in part.

Mr.

Branch is precluded from testifying as an expert under Rule 702

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because his testimony will not “help the trier of fact to

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United States District Court
For the Northern District of California

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understand the evidence or to determine a fact in issue.”

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Evid. 702.

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historian, his expert report consists mostly of historical facts,

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etymological information, and quotations from secondary sources,

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none of which appears to be in dispute.

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information that appears in the reports of Plaintiffs’ other

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experts.

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in understanding any of the evidence or determining any facts in

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issue, his testimony cannot satisfy the requirements of Rule 702.

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As discussed at the pretrial conference, Plaintiffs may propose a

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narrative of historical facts and etymological information to be

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included in the parties’ statement of undisputed facts.

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NCAA objects to the inclusion of any of these facts without a

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principled basis, the Court will reconsider allowing Mr. Branch to

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testify.

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Fed. R.

Although Mr. Branch is a renowned writer and

The report also contains

Thus, because Mr. Branch’s report will not aid the Court

If the

Unlike with Mr. Branch, the NCAA does not challenge Dr.

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Staurowsky’s qualifications under Rule 702.

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therefore testify on any of the subjects discussed in her expert

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report.

Dr. Staurowsky may

As explained above, she may refer to facts or data
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contained in media reports or reports produced by third parties

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provided that she actually relied on those facts and data to form

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her opinion and experts in her field would also reasonably rely on

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the same facts and data.

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G.

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United States District Court
For the Northern District of California

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No. 7: Motion to Bar Admission of Walter Byers’
Deposition Testimony from the White v. NCAA Case

This motion is GRANTED in part and DENIED in part.

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See Fed. R. Evid. 703.

Plaintiffs may present portions of Mr. Byers’ White deposition
testimony that concern subjects on which the NCAA had a “similar
motive” to cross-examine him as it would have had in the present
case.

Fed. R. Evid. 804(b)(1)(B).

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Plaintiffs may not, however,

introduce any portions of Mr. Byers’ deposition testimony
concerning any other subject nor may they use Mr. Byers’
deposition testimony as a conduit for the admission of any
evidence that would otherwise be inadmissible, such as Mr. Byers’
book.
H.

No. 8: Motion to Bar References to Wealth or Income of
any Defense Witness or NCAA or University Employee

This motion is DENIED.

Evidence of income or wealth derived

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from revenue generated by college athletics is potentially

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relevant and carries a minimal risk of prejudice because this case

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will proceed as a bench trial.

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The NCAA notes that the magistrate judge in this case previously
ruled that Plaintiffs could not rely on Mr. Byers’ deposition testimony
from White under Federal Rule of Civil Procedure 32(a)(8) because White
involved different subject matter from the present case. See Fed. R.
Civ. P. 32(a)(8) (“A deposition lawfully taken and, if required, filed
in any federal- or state-court action may be used in a later action
involving the same subject matter between the same parties”). Even if
the magistrate judge’s decision were binding on this Court, however, it
would be inapposite here because it was decided under a different legal
standard before Plaintiffs had fully developed their theory of the
present case.

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This motion is DENIED.

United States District Court
For the Northern District of California

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conferences; however, Plaintiffs must present some evidence of a
nexus between these forms and the NCAA.
J.

No. 10: Motion to Exclude Evidence Concerning
Adjudicated or Alleged Criminal Conduct Unrelated to the
Rules at Issue Here

This is GRANTED.

Plaintiffs failed to provide a substantive

opposition to this motion and have not identified any instances of
alleged or adjudicated criminal conduct relevant to this case.
K.

No. 11: Motion to Exclude References to Whether the NCAA
Called any Current or Former Student-Athletes

This motion is DENIED as moot.

Plaintiffs represented that

the parties have reached an agreement to resolve this motion.
L.

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Plaintiffs may introduce student-

athlete eligibility forms produced by NCAA Division I schools or

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No. 9: Motion to Exclude the Admission of StudentAthlete Eligibility Forms Authored by Schools or
Conferences

No. 12: Motion to Preclude Evidence or Argument About
Supposedly Less Restrictive Alternatives That Dr. Roger
Noll Has Not Analyzed

This motion is DENIED.

Plaintiffs represented at the hearing

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that they will not proffer any less restrictive alternatives at

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trial that their experts did not discuss in their reports.

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extent that Plaintiffs’ experts intend to rely on any “new facts”

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to support their proffered less restrictive alternatives, as

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Plaintiffs indicated at the pretrial conference, they must

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disclose those facts to the NCAA by 5:00 p.m. on May 30, 2014.

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M.

To the

No. 13: Motion to Exclude Testimony of Mary Willingham
if the Court Excludes the Testimony of NCAA Witnesses
not Listed by Name in Rule 26 Disclosures

This motion is DENIED as moot in light of Plaintiffs’

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representation at the hearing that they do not intend to call

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Willingham as a witness.
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CONCLUSION
The parties’ motions in limine (Docket Nos. 1063, 1069) are
resolved as set forth above.
Before 5:00 p.m. on May 30, 2014, Plaintiffs shall disclose

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to the NCAA any new facts on which their experts intend to rely to

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support their proffered less restrictive alternatives.

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shall file a list of every witness it intends to call at trial by

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11:00 a.m. on June 4, 2014.

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language for the injunction that they are seeking by 4:00 p.m. on

The NCAA

Plaintiffs shall file proposed

United States District Court
For the Northern District of California

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June 6, 2014.

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joint statement of undisputed facts -- including any narrative of

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historical facts -- which they shall submit to the Court no later

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than June 6, 2014.

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The parties shall work in good faith to produce a

The deadline for the NCAA to submit its trial brief is hereby

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continued to June 5, 2014.

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pages in length.

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The brief shall not exceed twenty-five

A bench trial of no more than fifteen days shall commence at
8:30 a.m. on June 9, 2014.
IT IS SO ORDERED.

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Dated: 5/30/2014

CLAUDIA WILKEN
United States District Judge

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