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

Filing 199

Declaration of Burke Magnus in Support of #178 Administrative Motion to File Under Seal filed byThe Big 12 Conference, Inc.. (Related document(s) #178 ) (Capps, Leane) (Filed on 6/9/2014)

1
2
3
4
5

DLA PIPER LLP (US)
FRANCIS W. RYAN (NY State Bar No. 2684058)
[e-mail]
1251 Avenue of the Americas, 27th Floor
New York, NY 10020-1104
Telephone: [phone]
Facsimile:
212.335.4501
Attorneys for Non-Party
ESPN

6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

OAKLAND DIVISION

11
12

EDWARD C. O'BANNON, JR., on behalf
of himself and all others similarly situated,

13
Plaintiffs,
14
V.
15

17

NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION (NCAA); ELECTRONIC
ARTS, INC.; and COLLEGIATE
LICENSING COMPANY,

18

CASE NO. 4:09-CV-3329 CW
DECLARATION OF BURKE MAGNUS IN
SUPPORT OF NON-PARTY THE BIG 12
CONFERENCE INC.'S
ADMINISTRATIVE MOTION TO SEAL
CONFIDENTIAL TRIAL EXHIBITS; DKT.
178

Defendants.

16

Judge:

Hon. Claudia Wilken

19
20
21

24
-)5
26
27
28
DLA

PIPER LLP (US)
NEW YORK

DECLARATION OF BURKE MAGNUS IN SUPPORT OF NON-PARTY THE BIG 12 CONFERENCE, INC.'S ADMINISTRATIVE
MOTION TO SEAL CONFIDENTIAL TRIAL EXHIBITS; DKT. 178; CASE NO. (19-CV-3329 CW (NC)

1

I, BURKE MAGNUS declare as follows:

2

1.

I am the Senior Vice President, College Sports Programming at ESPN, Inc.

3

("ESPN"). I have personal knowledge of the facts stated herein, and if called upon to testify, I

4

could and would testify competently to such facts.

5
6

7

2.

ESPN is a non-party in 0 'Bannon v. NCAA, el. al, Case No. 09-cv-3329-CW (the

-Action").
3.

On May 4, 2014, non-party The Big 12 Conference, Inc. ("Big 12") filed an

8

administrative motion to seal confidential trial exhibits, including Exhibit 2165,

9

BIG_12 NCAA_00000791 - BIG_12 NCAA 00000836 (ESPN Agreement) (hereinafter

10
11

"ESPN-BIG 12 Agreement).
4.

I understand that Big 12 produced the ESPN-Big 12 Agreement in the Action in

12

response to a subpoena served on Big 12 by Antitrust Plaintiffs. In doing so, I understand that

13

Big 12 designated the ESPN-Big 12 Agreement "Outside Attorneys' Eyes Only," because this

14

broadcast agreement contains highly sensitive commercial and proprietary information and trade

15

secrets, as well as confidentiality provisions protecting disclosure of the agreement's terms.

16

5.

For the reasons set forth below, public disclosure of the ESPN-Big 12 Agreement

17

would result in significant financial and competitive harm to ESPN, and therefore ESPN supports

18

Big 12's request to have this exhibit sealed.

19

6.

The Ninth Circuit recognizes that there are "compelling reasons" to maintain under

20

seal, and protect from disclosure to the public, documents that contain or amount to trade secrets

21

- which consist "of any formula, pattern, device or compilation of information which is used in
one's business, and which gives him an opportunity to obtain an advantage over competitors who do

73

not know or use it." In re Electronic Arts, 298 Fed. App'x 568, 569-70 (9th Cir.2008) (citing Nixon

24

v. Warner Comm 'ens, Inc., 435 U.S. 589, 598 (1978)).

25

7.

The ESPN-Big 12 Agreement, and the financial terms therein, are treated as

26

confidential by ESPN and Big 12, neither of which are parties to the Action. The highly

27

confidential financial information contained in the ESPN-Big 12 Agreement is protected from

28

public disclosure by a confidentiality agreement between ESPN and Big 12. See Ex. 2165, §
-2-

DIA PIPER LLP (US)
NEW YORK

DECLARATION OF BURKE MAGNUS IN SUPPORT OF NON-PARTY THE BIG 12 CONFERENCE, INC.'S ADMINISTRATIVE
MOTION TO SEAL CONFIDENTIAL TRIAL EXHIBITS; DKT. 178; CASE NO. 09-CV-3329 CW (NC)

1

24.9. Such information includes, among other things, the terms and amount of ESPN's payment

2

to Big 12 in exchange for the right to broadcast particular collegiate athletic events. See Ex.

3

2165, § 3. If this information is made public, ESPN would be harmed as its public disclosure

4

would allow other potential contracting partners and/or competitors to obtain an advantage over

5

ESPN in future negotiations. The public disclosure of this financial information could result in a

6

competitive prejudice to ESPN in future negotiations with partners, because contracting partners

7

would know the exact amounts that ESPN paid under the ESPN-Big 12 Agreement.

8
9

8.

The ESPN-Big 12 Agreement contains many more provisions that include unique,

proprietary and highly-sensitive information subject to the confidentiality agreement between

10

ESPN and Big 12 and which will competitively harm ESPN if publicly disclosed. Such

11

provisions include, but are not limited to, ESPN/ABC media rights (Ex. 2165 § 7); telecast and

12

distribution requirements (id. at §§ 4.3, 5.3 & 6.3); game selection procedures (id. at §§ 4.5, 5.4,

13

6.4 & Exhibit B); first negotiation and first refusal rights (id. at § 15); conference composition (id

14

at § 14); conference championship rights (id. at § 12); conference distribution rights and

15

restrictions (id. at §§ 8.4 & 8.5); and tickets (id. at § 19). If this information is made public,

16

ESPN would be harmed as its public disclosure would allow other potential contracting partners

17

and/or competitors to obtain an advantage over ESPN in future negotiations.

18
19
20
21

9.

For the foregoing reasons, ESPN respectfully requests that the Court grant non-

party Big 12's Administrative Motion to Seal Confidential Trial Exhibits.
I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct and that this declaration was e.

ted on June 9, 2014, at Bristol, Connecticut.

2")

24

urke agnus
for Vice Pr
at ESPN, Inc.

ent, College Sports Programming

25

26
27
28
DLA PIPER LLP (US)
NIAV YORK

-3DECLARATION OF BURKE MAGNUS IN SUPPORT OF NON-PARTY THE BIG !2 CONFERENCE, INC.'S ADMINISTRATIVE
MOTION TO SEAL CONFIDENTIAL TRIAL EXHIBITS; DKT. 178; CASE NO. 09-CV-3329 CW (NC)