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

Filing 203

Declaration of Tina K. Shah in Support of #200 Administrative Motion to File Under Seal Confidential Trial Exhibits Second Declaration of Tina K. Shah In Support of Defendant NCAA's Administrative Moton to Seal Confidential Trial Exhibits filed byNational Collegiate Athletic Association. (Related document(s) #200 ) (Pomerantz, Glenn) (Filed on 6/11/2014)

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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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Attorneys 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.,

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

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Plaintiffs,

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v.

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

SECOND DECLARATION OF TINA K.
SHAH IN SUPPORT OF DEFENDANT
NCAA’S ADMINISTRATIVE MOTION TO
SEAL CONFIDENTIAL TRIAL EXHIBITS
Judge:

Honorable Claudia Wilken

Defendants.

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I, TINA K. SHAH, declare and state as follows:

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1.

I am an Assistant General Counsel with Turner Broadcasting System, Inc. (“TBS,

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Inc.”). I am over 18 years of age and competent to give this declaration. The following facts are

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based on my personal knowledge.

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2.

This declaration supplements the declaration I submitted on June 9, 2014 in

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

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Motion to Seal Confidential Trial Exhibits. This second declaration responds to the Plaintiffs’

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opposition to the NCAA’s motion to seal. In their opposition brief, Plaintiffs identify specific

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provisions of the the Multi-Media Agreement between TBS, Inc., CBS Broadcasting Inc.

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(“CBS”), and the NCAA dated April 22, 2010 (the “Multi-Media Agreement”) and the the Digital

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Rights Agreement between Turner Sports Interactive, Inc. and the NCAA dated August 23, 2010
SECOND DECLARATION OF TINA K. SHAH IN
SUPPORT OF NCAA’S MOTION TO SEAL
CASE NO. 4:09-CV-3329-CW

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(the “Digital Rights Agreement”) that they seek to admit on the public record in this case. I

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understand that the Plaintiffs are not seeking to disclose any other previously sealed or redacted

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provisions of the Multi-Media Agreement or the Digital Rights Agreement in the versions of

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those agreements used at trial. As I explained in my first declaration dated June 9, 2014, those

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redacted provisions of the Multi-Media Agreement and the Digital Rights Agreement were

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heavily negotiated by TBS, Inc. and/or its subsidiaries or affiliates and contain competitively

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sensitive information, and they should remain redacted from any publicly filed versions of those

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agreements. In this declaration, I focus specifically on certain provisions of the Multi-Media

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Agreement on which the parties have been unable to agree with respect to disclosure.

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3.

Specifically, the “Definitions” in Section 1 of the Multi-Media Agreement include

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certain terms that are specific to the Multi-Media Agreement and which were heavily negotiated

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by the parties and contain competitively sensitive information. In particular, the terms “(g)

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Broadcaster Multi-Sport Package” and “(h) Broadcaster Platform” are non-standard definitions

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that describe aspects of the scope of the broadcasting rights and restrictions on those rights that

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were heavily negotiated by the parties. Disclosure of these definitions would reveal

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competitively sensitive information to content providers and potential competitors and cause

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competitive harm to TBS, Inc.

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4.

The “Broadcaster Rights and Restrictions” provisions in Section 2 of the Multi-

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Media Agreement govern the scope of the broadcasters’ rights with respect to the telecast and

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distribution of the NCAA Division I men’s basketball tournament. These provisions are not

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standard contract provisions and were heavily negotiated by the parties, and their contents are

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competitively sensitive to TBS, Inc. Disclosure of these specific terms will harm TBS, Inc. in

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future contract negotiations for the distribution of similar sports content. Specifically, if the

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provisions in Section 2 of the Multi-Media Agreement are publicly disclosed, other content

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providers will use their knowledge of these provisions in their negotiations with TBS, Inc.,

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including by potentially demanding similar provisions in their own rights agreements with TBS,

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Inc. Similarly, TBS, Inc.’s competitors will use their knowledge of these provisions to offer

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similar provisions in their negotiations with content providers, undermining TBS, Inc.’s
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SECOND DECLARATION OF TINA K. SHAH IN
SUPPORT OF NCAA’S MOTION TO SEAL
CASE NO. 4:09-CV-3329-CW

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competitive position.
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The “Promotional Inventory” provisions in Section 9.5 of the Multi-Media

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Agreement govern promotional obligations, and they represent an important part of the value

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provided in the agreement. These terms are not standard terms and were heavily negotiated by

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the parties. Disclosure of these specific terms concerning promotional obligations will harm

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TBS, Inc. in future contract negotiations for the distribution of similar sports content.

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Specifically, if the provisions in Section 9.5 of the Multi-Media Agreement are publicly

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disclosed, other content providers will use their knowledge of these provisions in their

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negotiations with TBS, Inc., including by potentially demanding similar provisions in their own

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rights agreements with TBS, Inc. Similarly, TBS, Inc.’s competitors will use their knowledge of

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these provisions in their negotiations with content providers, undermining TBS, Inc.’s

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competitive position.

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6.

Exhibit B to the Multi-Media Agreement (“NCAA Royalties”) describes the

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amount of payments made by the parties and the schedule upon which those payments are made.

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These issues were heavily negotiated by the parties. Although the Plaintiffs contend that the

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NCAA has publicly disclosed the total amount of the payments it is owed under the Multi-Media

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Agreement, the payment schedule is variable over time and the schedule of payments is

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competitively sensitive information for TBS, Inc. Disclosure of the payment schedule will harm

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TBS, Inc. in future contract negotiations for the distribution of similar sports content.

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Specifically, if the terms of Exhibit B to the Multi-Media Agreement are publicly disclosed, other

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content providers will learn what payment structure TBS, Inc. was willing to accept and use that

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knowledge to their advantage when negotiating the payment terms of their own rights agreements

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with TBS, Inc. Similarly, TBS, Inc.’s competitors will use their knowledge of the payment

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structure to undermine TBS, Inc.’s competitive position.

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7.

While the NCAA also has sought to protect the Multi-Media Agreement and the

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Digital Rights Agreement from public disclosure, TBS, Inc., as a telecaster, has different

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competitive interests than the NCAA and would suffer different harm than the NCAA if the

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competitively sensitive provisions of those agreements are disclosed.
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SECOND DECLARATION OF TINA K. SHAH IN
SUPPORT OF NCAA’S MOTION TO SEAL
CASE NO. 4:09-CV-3329-CW

I declare under penalty of perjury under the laws of the United States that the foregoing is
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true and correct.

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Executed on June II, 2014.
Tina K. Shah

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SECOND DECLARATION OF TINA K. SHAH IN
SUPPORT OF NCAA'S MOTION TO SEAL
CASE NO. 4:09-CV-3329-CW