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

Filing 186

RESPONSE (re #179 MOTION to Strike the Declaration of Daniel L. Rubinfeld ) filed byNational Collegiate Athletic Association. (Attachments: #1 Exhibit A, #2 Proposed Order)(Pomerantz, Glenn) (Filed on 6/6/2014)

1 GLENN D. POMERANTZ (State Bar No. 112503)
[e-mail]
2 KELLY M. KLAUS (State Bar No. 161091)
[e-mail]
3 ROHIT K. SINGLA (State Bar No. 213057)
[e-mail]
4 CAROLYN H. LUEDTKE (State Bar No. 207976)
[e-mail]
5 MUNGER, TOLLES & OLSON LLP
560 Mission Street
6 Twenty-Seventh Floor
San Francisco, California 94105-2907
7 Telephone:
[phone]
Facsimile:
[phone]
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Attorneys for Defendant
9 National Collegiate Athletic Association
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA, OAKLAND DIVISION

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14 EDWARD O’BANNON, et al.,

Case No. 4:09-CV-3329-CW

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NCAA’S OPPOSITION TO PLAINTIFFS’
MOTION TO STRIKE THE
DECLARATION OF DANIEL L.
RUBINFELD

Plaintiffs,
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v.
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NATIONAL COLLEGIATE ATHLETIC
18 ASSOCIATION; COLLEGIATE
LICENSING COMPANY; and
19 ELECTRONIC ARTS INC.,
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Judge: Hon. Claudia Wilken, Chief Judge

Defendants.

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NCAA’S OPPOSITION TO PLAINTIFFS’ MOTION TO STRIKE
CASE NO. 4:09-CV-3329-CW
ROHIT K.

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The NCAA respectfully opposes Plaintiffs’ motion to strike the Declaration of Daniel L.

2 Rubinfeld, dated June 3, 2014 (the “Rubinfeld Declaration”), Dkt. No. 179.
3 I.

INTRODUCTION

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The 5-page Rubinfeld Declaration (attached as Exhibit A) does not offer any new opinions

5 regarding competitive balance. Dr. Rubinfeld’s opinions are laid out in detail in his prior report.
6 The Rubinfeld Declaration presents further support for these existing opinions in the form of the
7 kind of statistical analysis that the Court stated in its summary judgment order would be useful.
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Plaintiffs cannot claim any harm or prejudice from the Rubinfeld Declaration. The NCAA

9 has already offered to make Dr. Rubinfeld available for a deposition this week on competitive
10 balance. Plaintiffs declined and filed this motion instead. But almost three weeks remain before
11 Dr. Rubinfeld is expected to testify. If a deposition is necessary, the time can be found. Notably,
12 Plaintiffs declined last Winter to depose Dr. Rubinfeld — or any of the NCAA’s other economic
13 experts — regarding their rebuttal reports. Dr. Rubinfeld’s rebuttal included extensive testimony
14 regarding competitive balance. So Plaintiffs cannot claim that they have been deprived of the
15 opportunity to depose Dr. Rubinfeld on his opinions.
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Nor can they claim surprise. Plaintiffs’ trial brief acknowledged that the NCAA would

17 submit further analysis on competitive balance in response to the Court’s summary judgment
18 ruling and explained that Plaintiffs are prepared to respond: “If the NCAA does come forward,
19 finally, with some competent evidence, the APs intend to respond by presenting statistical
20 evidence through Drs. Noll and Rascher.” Dkt. No. 172 at 16. Indeed, the economic consultant
21 who appears to have conducted much of the work supporting Dr. Noll’s opinions has written
22 extensively on the analysis he has been doing on competitive balance.1
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Nor can Plaintiffs complain that they have been deprived of a chance to file a Daubert

24 motion. Plaintiffs do not explain how they would have argued that adding additional support
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See Andy Schwarz, “The Competitive-Balance Argument Against Paying Athletes is Bullshit:
27 Death to the NCAA” (May 15, 2014), http://regressing.deadspin.com/the-competitive-balanceargument-against-paying-athlete-1576638830.
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-1NCAA’S OPPOSITION TO PLAINTIFFS’ MOTION TO STRIKE
CASE NO. 4:09-CV-3329-CW

1 undermined the reliability Dr. Rubinfeld’s opinions regarding competitive balance when Plaintiffs
2 did not challenge the reliability of those opinions without this additional support.
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There is also the question of fundamental fairness. Plaintiffs submitted a supplemental

4 report from Dr. Noll just 10 days before he is scheduled to testify. By contrast, Dr. Rubinfeld’s
5 Declaration was disclosed more than three weeks before his expected testimony. The NCAA
6 immediately offered a deposition; Plaintiffs have refused to provide one for Dr. Noll. Dr.
7 Rubinfeld’s report, as noted, merely provides additional statistical support for existing opinions.
8 Dr. Noll’s supplemental report provides an entirely new opinion based on NCAA governance
9 proposals that have been discussed in the popular press for years. In these circumstances, it would
10 be fundamentally unfair to preclude the new factual support for existing opinions proffered by Dr.
11 Rubinfeld.
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There is no unfairness here. The NCAA has given Plaintiffs notice and offered a

13 deposition, which is more than Plaintiffs have done with their own supplemental expert report.
14 Competitive balance is one of the NCAA’s more important remaining procompetitive
15 justifications. It is a factor widely recognized by the courts as important in sports cases. The
16 NCAA should have an opportunity to present the Court with a full evidentiary record on this issue,
17 so that the case is decided on the facts. Plaintiffs’ motion should be denied.
18 II.

THERE IS NO HARM TO PLAINTIFFS AND PLAINTIFFS CANNOT CLAIM
ANY UNFAIRNESS FROM THE RUBINFELD DECLARATION

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As Plaintiffs recognize, a party that provides expert disclosures after the deadlines set forth
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in the Court’s scheduling order is permitted to do so if “substantially justified or is harmless.”

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Fed. R. Civ. P. 37(c)(1). This standard is met here because Plaintiffs cannot claim any harm from
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the Rubinfeld Declaration. Nor can Plaintiffs claim any unfairness given their own conduct with
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respect to Dr. Noll’s supplemental expert report.

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A.
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There is No Harm to Plaintiffs

As this Court has noted, “[n]umerous courts, including the Supreme Court, have
recognized that promoting competitive balance among sports teams serves a ‘legitimate’

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procompetitive purpose and may justify the imposition by sports leagues of certain restraints on
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-2NCAA’S OPPOSITION TO PLAINTIFFS’ MOTION TO STRIKE
CASE NO. 4:09-CV-3329-CW

1 competition.” Dkt. No. 1025 at 33 (citing Am. Needle, Inc. v. NFL, 560 U.S. 183, 204 (2010)).
2 Dr. Rubinfeld thus provided an extensive discussion of competitive balance in his opening and
3 rebuttal expert reports. Keller v. NCAA, 09-CV-1967 (N.D. Cal.), Dkt. No. 925-8 at ¶¶ 83-102;
4 id., Dkt. No. 925-15 at ¶¶ 218-259; id., Dkt. No. 925-6 at ¶¶ 20-38. The NCAA made Dr.
5 Rubinfeld available for depositions regarding both reports, but Plaintiffs chose not to depose Dr.
6 Rubinfeld regarding his rebuttal report, or any of the NCAA’s economic experts regarding theirs.
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Nor can Plaintiffs claim that they have lost the opportunity to preclude Dr. Rubinfeld

8 pursuant to a Daubert motion. Since Plaintiffs never filed any such motion regarding Dr.
9 Rubinfeld’s opinions with the foundation presented in his prior reports, they cannot claim that they
10 would have filed—or succeeded—in such a motion if Dr. Rubinfeld had provided additional
11 support. In an event, Plaintiffs cannot seriously contend that Dr. Rubinfeld’s statistical analysis is
12 unreliable when Andy Schwarz—a partner of Dr. Rascher’s at the consulting firm OSKR who has
13 assisted both him and Dr. Noll in this litigation—recently conducted an analysis using the very
14 same metric (the Spearman Rank Correlation Coefficient) used by Dr. Rubinfeld. See supra n.1.
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In its summary judgment order, this Court denied Plaintiffs’ motion for summary judgment

16 on this procompetitive justification. Dkt. No. 1025 at 24. However, the Court specifically noted
17 that it would find statistical analyses of competitive balance useful. See id. at 34 n.14. The
18 Rubinfeld Declaration provides precisely the kind of analysis the Court identified, based on some
19 of the research literature cited by the Court.
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Indeed, Plaintiffs anticipated in their trial brief that the NCAA would provide this very

21 analysis and explained that they have responses ready: “If the NCAA does come forward, finally,
22 with some competent evidence, the APs intend to respond by presenting statistical evidence
23 through Drs. Noll and Rascher.” Dkt. No. 172 at 16. Having planned to offer analysis of their
24 own without disclosing it to the NCAA, Plaintiffs cannot claim to be outraged that the NCAA has
25 given them several weeks’ notice and made Dr. Rubinfeld available for deposition.
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B.

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Plaintiffs cannot complain about any unfairness when they have refused a deposition of Dr.

Plaintiffs Cannot Claim Unfairness Given the Noll Supplement

28 Noll regarding the Noll Supplement—even though it violates the Court’s recent order.
-3NCAA’S OPPOSITION TO PLAINTIFFS’ MOTION TO STRIKE
CASE NO. 4:09-CV-3329-CW

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The NCAA moved in limine to preclude Plaintiffs from relying on less restrictive

2 alternatives that had not been disclosed by their experts. As the Court’s Order explains, “Plaintiffs
3 represented at the hearing that they will not proffer any less restrictive alternatives at trial that their
4 experts did not discuss in their reports. To the extent that Plaintiffs’ experts intend to rely on any
5 ‘new facts’ to support their proffered less restrictive alternatives, as Plaintiffs indicated at the
6 pretrial conference, they must disclose those facts to the NCAA by 5:00 p.m. on May 30, 2014.”
7 Dkt. No. 166 at 11.2 The Court’s order permitted Plaintiffs to offer only “new facts” to support an
8 alternative that their experts had already “proffered.” Id. As Plaintiffs’ counsel told the Court,
9 “We don’t have any new theories, but there are new facts.” Hr’g Tr., May 28, 2014 at 69:16-17.
In the Noll Supplement, however, Dr. Noll offers “new theories” that are not based on any

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11 “new facts.” Chiefly, he purports to find an alternative in certain “governance reforms” that
12 would allow five conferences—the ACC, Big Ten, Big 12, Pac-12 and SEC—to adopt rules
13 permitting additional support for student-athletes’ (“SAs’) educational expenses. Setting aside
14 that none of these proposals has anything to do with SAs’ names, images or likenesses (“NIL”),
15 Dr. Noll did not discuss this new purported alternative in any of his four prior expert reports.
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However, these reform proposals were well documented in public sources years before Dr.

17 Noll submitted those reports. For example, Dr. Noll cites a proposal to “[r]aise the cap of athletic
18 scholarships to full cost of attendance.” For several years prior to Dr. Noll’s previous merits
19 reports in this litigation on September 25 and November 5, 2013, major news outlets reported that
20 the NCAA’s members were debating various forms of this proposal on the cost of attendance:
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On November 3, 2011, the Associated Press reported that the Division I Board of
Directors had recently approved a proposal to provide this assistance.3

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On December 16, 2011, ESPN reported that the Division I Board of Directors
delayed implementation of the proposal because the proposal had not been affirmed
by the Division I membership.4

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Counsel for the NCAA told the Court: “Our concern is with new theories of less restrictive
26 alternatives that have not been raised before.” Hr’g Tr., May 28, 2014, at 69:10-12.

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http://www.ncaa.com/news/ncaa/article/2011-11-03/stipend-not-%E2%80%98payplay%E2%80%99-move.
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CASE NO. 4:09-CV-3329-CW



On December 6, 2012, the Associated Press reported that NCAA officials expected
renewed debate on the proposal in 2013.5

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On January 1, 2013, CBS Sports reported that the NCAA planned to submit a
proposal regarding this kind of support to the Division I Board of Directors.6

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On April 10, 2013, CBS Sports reported on the NCAA Division I membership’s
continuing debate regarding the proposal.7

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Dr. Noll also points to proposals to provide these conferences with some autonomy

7 regarding various forms of support for SAs’ educational expenses and other costs such as
8 expanded insurance policies. Discussions regarding these “autonomy” proposals were also widely
9 reported on prior to when Dr. Noll submitted his previous reports.8 Indeed, last July, the NCAA
10 announced a 2014 convention to discuss the proposals that Dr. Noll relies upon.9
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Dr. Noll submitted his new opinions on new less restrictive alternatives on May 30, 2014,

12 just ten days before his testimony at trial. Yet Plaintiffs have refused to make Dr. Noll available
13 for a deposition regarding these opinions. In those circumstances, Plaintiffs should not be heard to
14 complain about having several weeks to prepare to respond to the Rubinfeld Declaration that
15 simply provides further statistical support for opinions that Dr. Rubinfeld has already offered.
16 III.

CONCLUSION

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Plaintiffs’ motion to strike the Rubinfeld Report should be denied.

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http://espn.go.com/college-sports/story/_/id/7357868/ncaa-puts-2000-stipend-athletes-hold.

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http://www.ncaa.com/news/ncaa/article/2012-12-05/ncaa-president-emmert-fights-student20 athletes-right-more-funds.
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21 http://www.cbssports.com/collegefootball/writer/jeremy-fowler/21483211/ncaa-president-markemmert-hopes-to-unveil-new-stipend-plan-in-april;
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http://www.cbssports.com/collegefootball/eye-on-college-football/22045180/ncaa-official23 continuing-opposition-to-2000-stipend.
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http://sportsillustrated.cnn.com/college-football/news/20130725/college-sports-braces-for-more24 change/; http://www.usatoday.com/story/sports/ncaaf/2013/07/22/conference-commissionerssuper-division/2576521/; http://www.cbssports.com/collegefootball/writer/dennis25 dodd/23874003/faculty-athletics-representatives-formally-proposes-division-4-for-ncaa;
http://www.insidehighered.com/news/2013/08/09/ncaa-restructuring-imminent-pac-12s-larry26 scott-muses-why-and-how-it-might-happen#sthash.8tWxLqdy.dpbs.
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27 http://www.usatoday.com/story/sports/college/2013/07/25/ncaa-president-mark-emmert-majorchange-on-the-way/2588099/.
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-5NCAA’S OPPOSITION TO PLAINTIFFS’ MOTION TO STRIKE
CASE NO. 4:09-CV-3329-CW

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2 DATED: June 6, 2014

MUNGER, TOLLES & OLSON LLP

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By:

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/s/ Glenn D. Pomerantz
GLENN D. POMERANTZ

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Attorneys for Defendant
National Collegiate Athletic Association

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CERTIFICATE OF SERVICE

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I hereby certify that on June 6, 2014, I electronically filed the foregoing document with the

12 Clerk of the Court using the CM/ECF system which will send notification to the e-mail addresses
13 registered.
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By:
/s/ Glenn D. Pomerantz
MUNGER, TOLLES & OLSON LLP
Attorneys for NCAA

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CASE NO. 4:09-CV-3329-CW