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

Filing 200

Administrative Motion to File Under Seal Confidential Trial Exhibits filed by National Collegiate Athletic Association. (Attachments: #1 Exhibit 400, #2 Exhibit 400, #3 Exhibit 2218, #4 Exhibit 2218, #5 Declaration of Scott Bearby ISO, #6 Declaration of Nathan Rehn ISO, #7 Exhibit A to Rehn Decl., #8 Exhibit B to Rehn Decl., #9 Declaration of Daniel Weinberg ISO, #10 Declaration of Tina Shah ISO, #11 Proposed Order)(Pomerantz, Glenn) (Filed on 6/10/2014) Modified on 6/10/2014 (cpS, COURT STAFF).

EXHIBIT A

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James A. Lamberth (Ga. Bar No. 431851)
TROUTMAN SANDERS LLP
600 Peachtree Street, N.E.
Suite 5200
Atlanta, Georgia 30308
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Counsel for Non-Party Turner Broadcasting System, Inc.

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

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EDWARD O’BANNON, et al.,

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Plaintiffs,
v.

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

Case No. 4:09-CV-3329-CW
NON-PARTY TURNER BROADCASTING
SYSTEM, INC.’S BRIEF IN SUPPORT OF
DEFENDANT NCAA’S ADMINISTRATIVE
MOTION TO SEAL CONFIDENTIAL TRIAL
EXHIBITS
Judge:

Hon. Claudia Wilken

Defendants.

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Non-party Turner Broadcasting System, Inc. (“TBS, Inc.”) respectfully submits this brief

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in support of the Defendant National Collegiate Athletic Association’s (“NCAA”) Administrative

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Motion to Seal Confidential Trial Exhibits. Specifically, TBS, Inc. seeks to prevent the public

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disclosure of the terms of two highly confidential agreements between TBS, Inc. and the NCAA

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that the parties in the above-captioned case have indicated they may seek to admit in whole or in

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part during the trial of this matter: (1) the Multi-Media Agreement Between TBS, Inc., CBS

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Broadcasting Inc. (“CBS”), and the NCAA dated April 22, 2010 (the “Multimedia Agreement”)

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and (2) the Digital Rights Agreement between Turner Sports Interactive, Inc. and the NCAA

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dated August 23, 2010 (the “Digital Rights Agreement”). Both of these agreements were

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designated “Highly Confidential – Outside Counsel Only” pursuant to the protective order

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entered in this case, and the parties previously agreed to redact the highly confidential provisions
NON-PARTY TBS, INC.’S BRIEF IN SUPPORT
OF THE NCAA’S MOTTION TO SEAL
CASE NO. 4:09-CV-3329-CW

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of these agreements when relying on them for their claims or defenses. This Court previously

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recognized that portions of both of these agreements contain competitively sensitive information

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and that public disclosure of the full terms of the agreement would harm the parties to the

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agreements, including TBS, Inc. See Case No. 09-CV-1967-CW, ECF No. 576 at 4-5; id., ECF

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No. 626 at 8; id., ECF No. 645 at 3-4. TBS, Inc. will be irreparably injured if the highly

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confidential parts of these agreements are admitted into the public record.

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It is not apparent how any of the redacted terms of the Multi-Media Agreement or the

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Digital Rights Agreement are relevant to the issues that will be litigated at trial. This is illustrated

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by the fact that when the parties previously relied on these agreements in this case, they used

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excerpts of these agreements in which most of the substantive terms were omitted or redacted.

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Despite this fact, counsel for TBS, Inc. understands that the parties have been unable to reach an

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agreement to use the previously redacted versions of these agreements already in the record as

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exhibits at trial. Given the highly confidential nature of the Multi-Media Agreement and the

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Digital Rights Agreement and the limited relevance they have in these proceedings, TBS, Inc.

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respectfully requests that the Court order the parties to rely on the previously redacted versions of

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the Multi-Media Agreement and the Digital Rights Agreement already on file in the record or, in

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the alternative, to admit the terms of the Digital Rights Agreement under seal so as to protect the

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competitive interests of TBS, Inc., which is not a party to this litigation.

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A.

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The Multi-Media Agreement is the current agreement between TBS, Inc., CBS, and the

The Multi-Media Agreement

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NCAA relating to the distribution rights for the NCAA Division I Men’s Basketball

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Championship. See Decl. of Tina K. Shah dated June 9, 2014 (filed contemporaneously with this

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brief) (“Shah Decl.”), ¶ 5. The Multi-Media Agreement was heavily negotiated and is considered

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highly confidential by TBS, Inc. Id., ¶¶ 7, 9. The NCAA designated the Multi-Media Agreement

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as “Highly Confidential – Outside Counsel Only” under the terms of the protective order in this

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case. See Decl. of Robert J. Wierenga in Supp. of Antitrust Pls.’ Mot. to Seal (Case No. 09-CV-

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1967, ECF No. 539), ¶ 64.

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Both the Antitrust Plaintiffs and the NCAA previously have relied on heavily excerpted
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NON-PARTY TBS, INC.’S BRIEF IN SUPPORT
OF THE NCAA’S MOTION TO SEAL
CASE NO. 4:09-CV-3329-CW

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and redacted versions of the Multi-Media Agreement. In support of their motion for class

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certification, the Antitrust Plaintiffs filed an exhibit containing excerpts of the Multi-Media

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Agreement with redactions that disclosed only the table of contents and selected provisions on

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four pages out of the forty-seven page agreement. See Case No. 09-CV-1967, ECF No. 655. The

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Court recognized that these redactions covered “competitively sensitive portions” of the Multi-

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Media Agreement and agreed that they “balance[d] the public interest in judicial records against

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the interests of the NCAA and nonparties Turner and CBS in protecting their competitive

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standing.” See id., ECF No. 626 at 8. The NCAA also filed a redacted version of an excerpt from

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the Multi-Media Agreement in support of its motion for summary judgment, containing only one

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page from the Multi-Media Agreement. See id., ECF No. 931-8. In ruling on the NCAA’s

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motion to seal the redacted provisions in this excerpt from the Multi-Media Agreement, the Court

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agreed that paragraph 13.1 of the agreement “could be used by competing broadcasters to gain a

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competitive advantage over TBS in future negotiations for broadcast distribution rights.” Id.,

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ECF No. 989 at 11.

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B.

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The Digital Rights Agreement is the current agreement between the NCAA and Turner

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Sports Interactive, Inc., a subsidiary of TBS, Inc., relating to the distribution of certain content

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across digital platforms. See Shah Decl., ¶ 4. The redacted provisions of the Digital Rights

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Agreement contain highly confidential information. Id., ¶ 5. The NCAA designated the Digital

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Rights Agreement as “Highly Confidential – Outside Counsel Only” under the terms of the

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protective order in this case. See Decl. of Robert J. Wierenga in Supp. of Antitrust Pls.’ Mot. to

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Seal (Case No. 09-CV-1967, ECF No. 539), ¶ 31.

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The Digital Rights Agreement

The Antitrust Plaintiffs previously relied on the redacted version of the Digital Rights

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Agreement. Specifically, in support of their motion for class certification, the Antitrust Plaintiffs

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filed an exhibit that redacted the key provisions of the Digital Rights Agreement. See Case No.

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09-CV-1967-CW, ECF No. 653. The Court found that there was good cause to redact these

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provisions to protect the interests of TBS, Inc. See id., ECF No. 645 at 3-4.

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NON-PARTY TBS, INC.’S BRIEF IN SUPPORT
OF THE NCAA’S MOTION TO SEAL
CASE NO. 4:09-CV-3329-CW

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C.

Public Disclosure of the Redacted Terms of the Multi-Media Agreement and
the Digital Rights Agreement Will Cause Competitive Harm to TBS, Inc.

TBS, Inc. is in the business of managing and distributing content on multiple television

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programming services and other platforms. See Shah Decl., ¶ 3. TBS, Inc. is also in the business

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of managing and operating digital businesses, including distributing content on digital platforms

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and creating applications and services for those platforms. See id., ¶ 4. TBS, Inc. frequently

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negotiates rights agreements with third party content providers in the sports, entertainment, and

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news industries, which provide TBS, Inc. and its subsidiaries and affiliates with rights to manage

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and distribute such content on various television programming services and platforms. Id., ¶ 3.

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TBS, Inc. also frequently negotiates digital rights agreements with third party content providers in

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the sports, entertainment, and news industries, which provide TBS, Inc. and its subsidiaries and

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affiliates with rights to distribute such content on behalf of such third parties across digital

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platforms (e.g., NBA.com, PGA.com, BleacherReport.com). Id., ¶ 4. TBS, Inc. competes with a

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number of different entities in its effort to obtain rights to manage and distribute content across its

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television programming services and digital platforms. Id., ¶ 8. Many of the terms of the rights

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agreements that TBS, Inc. enters into with content providers are heavily negotiated. Id., ¶ 9. In

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particular, the redacted terms of the Multi-Media Agreement and the Digital Rights Agreement

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were heavily negotiated, and their contents are competitively sensitive to TBS, Inc. Id., ¶¶ 7, 9.

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TBS, Inc. takes steps to ensure that the Multi-Media Agreement and the Ditigal Rights

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Agreement are not disclosed outside of a group of persons within TBS, Inc. who have a business

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reason to know their contents. Id., ¶ 7.

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If the heavily-negotiated provisions of the Multi-Media Agreement are publicly disclosed,

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the terms to which TBS, Inc. agreed will be available to both those entities with which TBS, Inc.

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negotiates for distribution rights and those entities with which TBS, Inc. competes to obtain

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distribution rights. Id., ¶ 11. Knowledge of those terms could then be used strategically to TBS,

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Inc.’s detriment by a content provider in its negotiations with TBS, Inc. or by a competitor in its

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efforts to obtain the same distribution rights for which TBS, Inc. is negotiating. Id. If the content

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of these redacted provisions is disclosed to the public, TBS, Inc. is likely to be harmed in its
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NON-PARTY TBS, INC.’S BRIEF IN SUPPORT
OF THE NCAA’S MOTION TO SEAL
CASE NO. 4:09-CV-3329-CW