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

Filing 214

DECLARATION of Daniel A. Rascher in Opposition to NCAA's Objections to Plaintiffs' Summary Exhibits filed byEdward C. O'Bannon, Jr.. (Isaacson, William) (Filed on 6/15/2014) Modified on 6/16/2014 (cpS, COURT STAFF).

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MICHAEL D. HAUSFELD (pro hac vice)
[e-mail]
HILARY K. SCHERRER (SBN 209451)
[e-mail]
SATHYA S. GOSSELIN (SBN 269171)
[e-mail]
SWATHI BOJEDLA (pro hac vice)
[e-mail]
HAUSFELD LLP
1700 K Street, NW, Suite 650
Washington, D.C. 20006
Telephone:
[phone]
Facsimile:
[phone]

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MICHAEL P. LEHMANN (SBN 77152)
[e-mail]
BRUCE J. WECKER (SBN 78530)
[e-mail]
HAUSFELD LLP
44 Montgomery Street, Suite 3400
San Francisco, California 94104
Telephone:
[phone]
Facsimile:
[phone]

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Plaintiffs’ Class Counsel

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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

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

Case No. 4:09-cv-3329 CW
DECLARATION OF DANIEL A.
RASCHER IN OPPOSITION TO NCAA’S
OBJECTIONS TO PLAINTIFFS’
SUMMARY EXHIBITS
Judge:
The Honorable Claudia Wilken
Courtroom: 2, 4th Floor
Trial:
June 9, 2014

Defendants.

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DECLARATION OF DANIEL A. RASCHER IN
OPPOSITION TO NCAA’S OBJECTIONS TO
PLAINTIFFS’ SUMMARY EXHIBITS
4:09-CV 3329 CW

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Qualifications
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My name is Daniel A. Rascher. I previously submitted a damages report, a

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damages reply report, and a declaration in this matter: Expert Report of Daniel A. Rascher

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Expert Reply Report of Daniel A. Rascher, and Declaration of Daniel A. Rascher in Support of

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Motion by Antitrust Plaintiffs for Class Certification (hereinafter Rascher Damages Report,

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Rascher Reply Report, and Rascher Declaration, respectively).

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Scope of Work
2.

On June 13, 2014, while I was on the stand, the NCAA objected to my

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presentation of certain summary exhibits made based on the materials that I also used in my

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work as an expert in this case. The summary exhibits in question are compilations of data filed

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by colleges and universities with the Department of Education under the Equity in Athletics

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Disclosure Act (hereinafter EADA), which is a commonly-used data source among sports

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economists who study college sports. In my various reports, I have cited these data extensively,

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in the materials I presented to the NCAA for class certification declaration in April 2013, in my

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merits report in September 2013, in my reply report in November 2013, and in an update of

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named plaintiffs’ damages that I compiled in March of this year. I specifically used these data

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in my report.

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Information on the EADA data and my reliance thereon
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3.

The EADA data on which these summary exhibits rely are published by the United

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States Department of Education, based on official disclosures of sport-by-sport spending by all
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colleges and universities in the United States, whether they are in the NCAA or not.
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4.

The data set published each year is massive. Each year’s publication has over

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2,000 schools, hundreds of which are not in the NCAA. Of those schools that are in the NCAA,
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only 351 (as of 2014) are in Division I.
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5.

Similarly, the data set has many more columns than I use in compiling these

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summaries. Many of the columns involve information unrelated to football or basketball. In all
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DECLARATION OF DANIEL A. RASCHER IN
OPPOSITION TO NCAA’S OBJECTIONS TO
PLAINTIFFS’ SUMMARY EXHIBITS
4:09-CV 3329 CW

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of these summary slides, I have excluded data on other sports. Just as the data has over 2,000

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rows per school, it has over 4,000 columns of information. Thus, in total, there are more than 8

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million observations in the data, what I present is a partial summary.
6.

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The NCAA’s expert, Daniel Rubinfeld, has also relied on these data, indicating in

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many instances that he received the data from me, through my production of backup materials.

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As an example, in his Declaration of December 12, 2013, Dr. Rubinfeld provided a “Table 2”

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for which his source was listed as “EADA Data provided in Professor Rascher’s Class

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Declaration.” In Exhibit A to that same report, Dr. Rubinfeld lists his source as “2006-07

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through 2011-12 EADA Data provided in the Rascher Class Certification Declaration backup
materials” as well as other EADA data Dr. Rubinfeld acquired on his own.

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7.

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In his most recently filed report, from June 3, 2014 (i.e., last week), Dr. Rubinfeld

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also relied on EADA data that he stated he had received from me. He wrote: “I matched the

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RPI team rankings to total team revenues and expenses reported in the Equity in Athletics

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Disclosure Act (“EADA”) school financials data for the years 2006-07 through 2011-12.” 1 And

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then he explained in a footnote that “The EADA data was provided in the Rascher Class

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Declaration backup materials. They are collected from each school that participates in the

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federal student financial assistance program. See: “Equity in Athletics Disclosure Act,” U.S.

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Department of Education, available at

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<http://www2.ed.gov/finaid/prof/resources/athletics/eada.html>, accessed May 16, 2014.” 2
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Below, I will go through each exhibit and explain what data it summarizes.

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The Summary Exhibits.

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The first summary exhibit in this set is entitled “Federally-Filed Revenue and

Expense Numbers for Major Conference Schools, 2012-2013.” Rascher_Demo_2B,

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Attachment A to June 12, 2014 Letter to Court from Plaintiffs’ Counsel (Dkt. No. 210); PX

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2537. It is the exact parallel of the football data provided in my original Rascher Declaration,

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Declaration of Daniel L. Rubinfeld (hereinafter Rubinfeld Supplemental), June 3, 2014, para 6,
p. 4.
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Rubinfeld Supplemental, June 3, 2014, n.13 (p. 4).
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DECLARATION OF DANIEL A. RASCHER IN
OPPOSITION TO NCAA’S OBJECTIONS TO
PLAINTIFFS’ SUMMARY EXHIBITS
4:09-CV 3329 CW

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with two differences. The first is that it covers basketball rather than football data, and the

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second is that these numbers reflect the 2012-13 year, which was not yet available when I filed

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my original declaration. This exhibit shows the reported men’s basketball revenues and

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expenses of the schools in the then-six major conferences, taken directly from the EADA data,

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and then provides a column listing the difference between revenue and expense, which I have

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labelled as “Net Surplus.” At the bottom of this exhibit, I provide a tally of the schools showing

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positive net surplus (61), zero net surplus (5), and negative net surplus (3).

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The second exhibit, entitled, “Division I Basketball and FBS Football Revenues,

2000-01 to 2012-13” is a graphical depiction of the exact reported-revenue figures for all

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Division I men’s basketball and FBS Football programs from the EADA data from 2000-01

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through 2012-13. Rascher_Demo_3A; PX 2538. I identified those schools in Division I and/or

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FBS, I summed their revenue figures for these two sports, and I plotted them as a column chart,

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showing total revenue for each year.

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The next three exhibits provide subset descriptions of the previous exhibit.
a) In the first of these three (the third overall), entitled “Football and

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Basketball Revenues, FBS Major Conferences” provides the subtotals from

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the previous exhibit for just schools that play in the then-six so-called “Big

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Six” conferences (the conferences which automatically qualified to have at

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least on team in the BCS post-season bowls). Rascher_Demo_3B; PX

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2539. These conferences were the ACC, Big Ten, Big Twelve, Big East

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(prior to its splintering), Pac-12 and SEC.

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b) The second (the fourth overall), entitled “Football and Basketball Revenue,

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FBS Other Conferences,” focuses on the rest of the FBS schools, i.e., those

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in conference that did not receive automatic bids for the BCS post-season.

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Rascher_Demo_3C; PX 2540. These include Conference USA, the

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Mountain West, Mid-American Conference (MAC), Sun Belt Conference,

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and (prior to its exit from FBS football), the Western Athletic Conference

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(WAC).
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DECLARATION OF DANIEL A. RASCHER IN
OPPOSITION TO NCAA’S OBJECTIONS TO
PLAINTIFFS’ SUMMARY EXHIBITS
4:09-CV 3329 CW

c) The third (the fifth overall), entitled “Basketball Revenue, Non-FBS

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Conferences” capture the remainder of the schools. Rascher_Demo_3D;

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PX 2541. These include schools that do not have a football team at all, or

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who participate in the FCS football subdivision rather than FBS. This only

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looks at men’s basketball revenue (even for schools that play FCS football)

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because these schools are not involved in this litigation with respect to their

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football programs.
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The final two summary exhibits are merely the data from which these graphical

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depictions were compiled. The first (the sixth overall) is entitled “Division I Men's Basketball

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Revenue, 2000-01 to 2012-13” and shows the precise EADA Data on revenue for each Division

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I school’s men’s basketball program. Rascher_Demo_3E; PX 2542. The second (the seventh

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and last overall), entitled “Division I Men's Football Revenue, 2000-01 to 2012-13” 3 lists the

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same revenue data for the FBS football programs within Division I. Rascher_Demo_3F; PX

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2543.
13.

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In addition, I prepared a summary exhibit using confidential information from

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three of Plaintiffs’ trial exhibits regarding revenues from March Madness contracts between the

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NCAA and CBS/Turner from 1995-2024.

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The chart would be more accurately labelled as Division I FBS Men's Football Revenue, 200001 to 2012-13
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DECLARATION OF DANIEL A. RASCHER IN
OPPOSITION TO NCAA’S OBJECTIONS TO
PLAINTIFFS’ SUMMARY EXHIBITS
4:09-CV 3329 CW

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CERTIFICATE OF SERVICE

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I hereby certify that on June 15, 2014, I electronically filed the foregoing document with the Clerk of

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the Court using the CM/ECF system, which will send notification to the e-mail addresses registered.

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/s/ William A. Isaacson
William A. Isaacson
Plaintiffs’ Class Counsel
BOIES, SCHILLER & FLEXNER, LLP
5301 Wisconsin Avenue, NW
Washington, DC 20015

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CERTIFICATE OF SERVICE
4:09-CV 3329 CW