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

Filing 233

Deposition Designations by Edward C. O'Bannon, Jr. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F, #7 Exhibit G, #8 Exhibit H, #9 Exhibit I)(Bojedla, Swathi) (Filed on 6/20/2014) Modified on 6/23/2014 (kcS, COURT STAFF).

EXHIBIT A

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1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3
4

IN RE NCAA STUDENT-ATHLETE ) Case No. 4:09-CV-1967 CW
NAME & LIKENESS LICENSING

5

)

LITIGATION

)

___________________________)
6
7
8

VIDEOTAPED DEPOSITION OF

9

ROBERT DANIEL BEEBE

10

JANUARY 8, 2013

11
12
13

VIDEOTAPED DEPOSITION of

14

ROBERT DANIEL BEEBE, produced as a witness at the

15

instance of the Plaintiffs, and duly sworn, was taken

16

in the above-styled and -numbered cause on the 8th day

17

of January, 2013, from 9:39 a.m. to 4:34 p.m., before

18

Therese J. Casterline, Registered Merit Reporter,

19

Certified Realtime Reporter, Certified Shorthand

20

Reporter in and for the State of Texas, reported by

21

machine shorthand, at the offices of Polsinelli

22

Shughart, 2501 North Harwood Street, Suite 1900, in the

23

City of Dallas, County of Dallas, State of Texas,

24

pursuant to the Federal Rules of Civil Procedure and

25

the provisions stated on the record.

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antitrust plaintiffs.

2
3

MS. DEAN:

Cathy Dean on behalf of

Mr. Beebe.

4

MR. WIERENGA:

Bob Wierenga on behalf of

5

the NCAA and on behalf of the witness to the extent

6

he's questioned in his capacity as someone who had

7

served on NCAA committees.

8
9

MR. HENDERSON:
Collegiate Licensing Company.

10
11

MR. LAURIDSEN:

Adam Lauridsen for

Electronic Arts.

12
13

Harris Henderson for the

THE VIDEOGRAPHER:

The court reporter,

Therese Casterline representing Veritext, will swear in

14

23

Q.

Would you state your name, please.

24

A.

Robert Daniel Beebe.

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Q.

All right.

15

A.

Here in Dallas.

16

Q.

All right.

17

A.

I'm self-employed.

18
19
20

Where do you currently reside?

And where do you work?
I've formed a -- a risk

management firm called BMT Risk Management.
Q.

And you have two partners with that; is that

correct?

21

A.

I do, yes.

22

Q.

And what -- what is the business of BMT?

23

A.

It is misconduct risk management where we go

24

to organizations -- my two partners have done this for

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14
15
16

Q.

Did you ever become the director of

enforcement in NCAA?
A.

I did.

I returned in -- from Wichita State in

1987 and then became a director shortly after that.

17

Now, that's -- there were a few directors.

18

It wasn't just -- it wasn't just I who was a direc- --

19

the director of the whole department.

20

Q.

All right.

21

A.

There were four of us, I think, at the time.

22

Q.

And -- and who were they?

23

A.

At that point, I think it was me, Chuck

24

Smrt -- hmm.

25

know, there are a lot of folks in and out.

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So how many --

I don't remember who the other two -- you

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2
3
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don't remember who the other two were.
Q.

And -- and how long did you stay as director

of enforcement in NCAA?
A.

Then I -- I left in -- I think in June of 1989

5

to become the commissioner of the Ohio Valley

6

Conference.

7

Q.

All right.

What were your general job

8

responsibilities as far as being either an -- an

9

enforcement officer or the director of enforcement?

10

MR. WIERENGA:

11

MR. HOWARD:

Objection, compound.
Okay.

We'll do it one at a

12

16
17
18
19

What were your job responsibilities as
director of enforcement?
A.

Overseeing investigations by investigators or

enforcement representatives who reported to me.

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Q.

So now let me give you a clean question.

10

Back when you were working at the NCAA

11

during the 1980s, did you have an understanding of what

12

an amateur athlete was?

13

A.

Yes.

14

Q.

And what was that?

15

A.

It was an enrolled student who -- you know,

16

whose avocation was participating in athletics, and --

17

you know, and then there were certain rules that the

18

membership adopted, which, as an enforcement

19

representative, I had the responsibility to enforce --

20

Q.

All right.

21

A.

-- that -- that pertained to those

22

So --

student-athletes.

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Q.

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Okay.

Do you -- as you sit here today, do you
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believe that if athletes that play either football or

2

basketball receive some type of compensation beyond

3

grant-in-aid, that that will destroy college athletics?

4
5

19

A.

Destroy college -- yeah, I think it would have

a huge detrimental effect.

Q.

What's the basis for your opinion that

20

compensation beyond grant-in-aid will be detrimental to

21

NCAA sports?

22

A.

My personal opinion is it -- it would become

23

indistinguishable from the professionals, that the

24

student -- we have to -- you know, as commissioners,

25

I -- I always said, as commissioners, when I was a

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commissioner in college athletics, we had a different

2

responsibility than the commissioners in the

3

professional leagues that were just focused on the

4

entertainment value.

5

we saw last night -- well, it wasn't much

6

entertainment -- in the national championship game,

7

and -- and the -- the role of the student-athlete.

We had both entertainment, which

8

And having been one myself and been

9

afforded that opportunity, I think it's -- it was

10

critical to ensure that there was a relationship with

11

the student and the university, and I thought a

12

grant-in-aid was a fair -- a fair provision for

13

student-athletes and it didn't need to go beyond that.

14

That's, again, all my personal view on that.

15

Q.

Okay.

Okay.

I'm just going to follow up on a

16

couple of things that you -- you said in your last

17

answer.

18

And -- and, again, the record speaks for

19

itself, so I'm not going to come back and ask you about

20

something you just said; I just want to ask you a

21

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15

Q.

Do you believe the grant-in-aid is a form of

pay for play?

16

A.

No.

No.

17

Q.

Why not?

18

A.

I -- I view it as similar to what,

19

unfortunately, none of the Beebe kids were able to

20

obtain, which is a -- some type of award for a talent,

21

either, you know, strictly academic or musical or some

22

other form that an institution provides to attract --

23

to attract students with special talents.

24

Q.

Do you -- do you think --

25

A.

So -- and, I guess, to fill that out, I don't

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view that -- you know, there are students that my son

2

is going to school with who are being provided grants

3

at institutions -- not related to athletics -- for

4

other talents, and I'd love for him to have one, but I

5

don't view those to be pay for singing on the --

6

singing in the -- in the choir or being a chemist or

7

any of that kind of stuff.

8
9
10
11

So I -- I -- my viewpoint is that the
student-athlete grant-in-aid is -- is similar to those
arrangements.
Q.

Just so I understand, is it your position that

12

if someone receives a grant because they're a talented

13

musician, that's the same as someone getting

14

grant-in-aid because they're a good football player?

15

A.

Yes.

16

Q.

And you don't think that's pay for play?

17

A.

No.

18
19

And I guess the government doesn't either

because they're not taxing it.
Q.

Yeah, but -- well, that's -- we'll see.

20

Did you read Walter Byers' book?

21

A.

Yes.

22

Q.

How long ago did you read it?

23

A.

Two years ago, maybe.

24

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4

Q.

Do you believe that the collegiate model can

evolve without it harming the collegiate game?

5

A.

Yes.

7

Q.

How -- how could it evolve?

8

MR. WIERENGA:

Go ahead.

9
10
11
12

A.

I was a supporter of the -- of increasing the

grant-in-aid limit to approach cost of attendance.
Q.

Okay.

And -- and by that, you mean that

13

the -- the amount of grant-in-aid would be level with

14

the actual expense of attending school for an athlete?

17
18

A.

Not necessarily level at all -- because you

have the fluctuation between institutions.

19

Q.

Yes, I --

20

A.

So --

21

Q.

-- understand.

22

A.

So increase it closer to that, with a

23

common -- with a common -- the $2,000 limit was one

24

that I supported where the -- a grant-in-aid would be

25

redefined as room and board, tuition fees and books and

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up to $2,000 for cost of attendance.

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Q.

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Okay.

As you sit here today, do you have any
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facts which you believe would support a position that

2

payment to players, once they've exhausted their

3

eligibility for the use of their names, image and

4

likenesses, will be detrimental to college athletics?

6

A.

No.

7

Q.

Did you -- going back to when you worked at

8

the NCAA, did you attend committee meetings of any

9

kind?

10

MR. WIERENGA:

Object --

11

A.

When I worked at the NCAA?

12

Q.

At the NCAA, yes.

13

A.

Yes.

14

Q.

And what were the committee meetings that you

15

attended?

16

give you a preface.

17
18

And let me just -- I'm going to -- I have to
Let me just say it.

You have counsel here who's representing
you in the capacity for things that you did in

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A.

Yes.

2

Q.

And you were the commissioner there, right?

3

A.

I believe -- when was the suit --

4

Q.

Okay.

5

A.

-- filed?

8

Q.

You started at Big 12 in 2007; is that right?

9

A.

2003.

10

Q.

2003.

11

A.

Yeah.

12

Q.

Okay.

13

2000 --

14

A.

'11.

15

Q.

-- '11?

16

A.

Yes, uh-huh.

17

Q.

Okay.

6

I apologize.

And you were there from 2003 until

So at some point during your tenure as

18

the commissioner, this dispute came up about the video

19

games, right?

20

A.

Yeah.

I don't remember -- did it come up

21

while I was commissioner or deputy commissioner?

22

can't remember.

23

Q.

Well, let's --

24

A.

I

What year --

25

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5

You were -- when you joined the Big 12 in
2003, you were deputy commissioner?

6

A.

7

associate --

8

Q.

I should --

9

A.

-- commissioner.

10

Q.

I should have done this earlier.

11

A.

That's right.

12

Q.

I apologize.

13

A.

Yeah.

14

Q.

And when did you become commissioner?

15

A.

In September of 2007.

16

Q.

Okay.

17

A.

Okay.

18

Q.

-- 2007.

19

A.

Okay.

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I was chief operating officer and senior

That's -- that was why I said --

All right.

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Q.

If we go a little bit into your job

10

responsibilities between 2003 and 2011 -- I want to get

11

through it as fast as I can.

12

A.

Sure.

13

Q.

So maybe we could just start with your entry

14

position in 2003 as COO.

15

responsibilities at that time?

16

A.

What were your job

I was primarily responsible for the staff,

17

operation of the staff, internal operations.

18

the work of the outside legal counsel.

19

I oversaw

primary liaison to the board of directors.

I was the

20

Q.

The Big 12 board of directors?

21

A.

Correct.

22

Q.

Okay.

23

A.

In terms of fashioning the agendas and -- and

24

then -- and taking the minutes, compiling the minutes,

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Q.

2

change?

3

A.

When I became commissioner in September of

5

Q.

2007?

6

A.

I mean -- I'm sorry.

4

Okay.

And when did your job responsibilities

2011.

I became interim

7

commissioner in July of 2011, and then full-time

8

commissioner in. --

9
10

MS. DEAN:
A.

Not '11.

I mean '7, '7, sorry, 2007.

July of 2007

11

became interim commissioner, and then September was

12

named full-time commissioner.

13

Q.

Who did you replace?

Q.

And how did your job responsibilities change,

14
15
16
17

if at all?
A.

I was in -- responsible for all activities of

18

the conference and, you know, charged staff with

19

carrying out various responsibilities.

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A.

Yes.

2

Q.

Okay.

3

A.

ESPN, I'm sorry, for -- for basketball, not

4

football.

FOX for --

5

Q.

FOX Sports?

6

A.

FOX Sports South for football, ESPN for

7
8
9
10
11

basketball.
Q.

You negotiated two contrac- -- two television

contracts total; is that fair?
A.

I don't -- I think it's -- I mean, there

were -- you know --

12

Q.

18

Q.

19

Okay.

Now, when was the first time you

negotiated a television contract at the Big 12?

20

A.

Probably 1989 -- oh, Big 12, I'm sorry.

21

Q.

Yes.

22

A.

I was thinking OVC.

Well, I was involved with

23

the negotiation with the commissioner when I first got

24

there in 2003.

25

television deal on our secondary football rights.

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We did an extension of our FOX

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Then I was involved with him again in the

2

spring of 2007 with an extension of our ABC/ESPN

3

agreement.

4

the spring of 2011, we did an extension with FOX for

5

our secondary football rights.

And then I -- when I became commissioner in

6
7

MS. DEAN:

You just said you became the

commissioner in the spring of 2011.

8

THE WITNESS:

I did again?

9

Q.

You did that again.

10

A.

Sheesh.

11

know.

It's 2007.

12
13

Why is '11 and -- and -- I don't

THE WITNESS:

Thank you.
you

Keep track on

that.

14

MR. HOWARD:

Thank you, Counsel.

15

THE WITNESS:

16

I'll probably do it about 15 more times.

Keep track on that because

17

Q.

Okay.

18

A.

I don't know why that's stuck in my head.

19

21

Remember, I have brain damage from football and rugby,

Q.

On any of the occasions that you've just

22

listed, the 2003 FOX extension, the 2007 ABC/ESPN

23

agreement, and the -- the last extension with FOX that

24

you negotiated --

25

A.

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In 2011?
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Q.

-- in 2011 --

2

A.

Yeah.

4

A.

Yeah, that one was in 2011.

6

Q.

-- was there anybody involved in any of those

7

9

negotiations on behalf of the student-athletes?

A.

Well, I would say that all of us who were, you

10

know, responsible for considering student-athletes in

11

that -- in the negotiations.

12
13
14

Q.

Okay.

And when you say all of us, you're

referring to who?
A.

Me, the committee, the -- I mean, the -- the

15

board of directors that ultimately approved the

16

contract, athletics directors who ultimately approved

17

the contract.

18
19

Q.

Okay.

And did you consider at that time that

you were representing their interests?

20

A.

Yes.

21

Q.

Okay.

22

A.

Well, if -- we wouldn't agree to playing games

And how were you doing that?

23

at inordinate times that would, you know, provide a

24

hardship for student-athletes.

25

Q.

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What else?
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A.

The -- you know, student-athletes are

2

attracted to as much exposure as they can get.

3

part of what helps in recruiting to institutions.

4

It's

Coaches, when they recruit, you know,

5

report that they might have lost a student-athlete to

6

another conference because of the exposure that

7

conference got versus what your conference has.

8

there was a -- a -- you know, a dedication to try to

9

provide the most exposure that we could.

10

So

You know, women's basketball and baseball

11

and soccer and all those sports that needed to have as

12

much -- I mean, you know, they wanted -- those

13

student-athletes wanted as much exposure, and it got

14

down to when you recru- -- as crass as it was in

15

recruiting, a volleyball player out of Lake Highlands,

16

which has a great volleyball program, you know, you

17

wanted to try to get as much -- as much -- as many of

18

those games on as you could.

19

And in the high-profile sports, you know,

20

it made a difference in recruiting student-athletes

21

that you had exposure.

22

you know, student-athletes will attend some schools

23

versus others.

That's part of the reason why,

24

Q.

Because the games are on television?

25

A.

Yeah.

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That's a big -- a big deal for
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student-athletes, yeah.

2

Q.

Okay.

3

A.

Unless they're going to Michigan.

4

don't care.

5
6

Then they

MR. WIERENGA:

Just being in Ann Arbor

is compensation enough.

7

THE WITNESS:

8

THE REPORTER:

I'm sorry?

9

MR. WIERENGA:

You don't need to report

10

that.

11

13

Yeah.

THE WITNESS:

Q.

Okay.

We have to have some levity

Well, Mr. Beebe, thank you.

Is that a

14

complete list of how you represented the interests of

15

the student-athletes during the negotiations of these

16

contracts?

17
18

A.

As I sit here now, yes.

I mean, I might think

of more things later, but ...

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Q.

When you were negotiating the contracts in

14

2003, 2007 and 2011, did you have an understanding that

15

those contracts would touch upon rebroadcasts of

16

athletic events?

19

A.

Yes.

20

Q.

Was that true for -- on each occasion?

21

A.

I don't remember the earlier --

22

Q.

Okay.

23

A.

-- negotiations.

24

Q.

But at least for 2007 and 2011, rebroadcast

25

was one of the issues that was on the table?

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A.

Yes.

8

A.

And there -- you know, and there wasn't deemed

9

It was a very important one.

to be much value.

I think probably when ESPN Classic

10

came on-line and started to rebroadcast games, there

11

became more of an interest in the value of the

12

rebroadcast, and so it was a -- a big item in

13

negotiations for conferences and institutions to try to

14

recapture those rights -- or I shouldn't say

15

recapture -- to capture those rights.

16

Q.

And -- and you understood, I take it, that

17

that -- that important issue of capturing the rights to

18

the rebroadcasts was not something that was just

19

inherent to the Big 12; it was also true of other

20

conferences, right?

23

A.

That -- that was my understanding, yes.

24

Q.

When you were negotiating the contracts, did

25

you have an opportunity to see other contracts from

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oth- -- from -- between networks and other conferences?

2

A.

I did not.

6

Q.

Okay.

Now, during this -- during the time the

7

negotiated -- negotiation of the contracts, let's just

8

say between the 2007 and 2011 period, did you

9

understand that some of these rebroadcasts would

10

include the use of images of athletes who had already

11

exhausted their eligibility?

14

A.

Yes.

15

Q.

In other words, people, for example, had

16

graduated and they couldn't play anymore, and then the

17

games would be shown on TV and there they would be,

18

right?

19

A.

Yes.

20

Q.

Okay.

Was there any discussion that those

21

athletes that had exhausted their eligibility would be

22

entitled to compensation?

23

A.

No.

24

Q.

Why not?

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3
4

A.

I don't think it entered our minds, at least

not mine.
Q.

Is the reason for that because you were under

5

the impression, as you are today, that the -- the

6

athletes are not entitled to receive anything beyond

7

the grant-in-aid that they get from the universities?

10

A.

Yeah, I think that's too broad.

11

Q.

Okay.

12

A.

Well, I mean -- you mean in perpetuity they're

13

Can you narrow it for me?

not allowed to get -- to -- no, I never had that view.

14

Q.

Well, what was your view?

15

A.

Well, as participants in a contest that was

16

televised --

17

Q.

Right.

18

A.

-- you know, they -- they -- you know, by

19

walking on the field or court or, you know, sand

20

volleyball court or baseball diamond or softball

21

diamond, you know, they -- they agreed -- in fact, you

22

know, like I reported earlier, they wanted and demanded

23

that they get as much exposure as they could.

24

Q.

Right.

25

A.

So -- so for that -- for that purpose, then,

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there was never -- and for the rebroadcast of that

2

contest that they were in, you know, my feeling was

3

always that's what they -- you know, that's what they

4

came to school for, that's what they -- that's what

5

they actually demanded in a lot of ways.

6

The -- the -- however, if there was a

7

broadcast of a tremendous event, you know, that Vince

8

Young in the Rose Bowl kind of a deal, and later, as a

9

student-athlete, he was -- you know, he went to the

10

rights holders for that game and he wanted to, you

11

know, put together clips of that game and other games

12

or him in high school or whatever else he could get

13

together to have a Vince Young show, then, and profit

14

from that, I didn't -- that's not a problem.

15

outside of his eligibility, and, you know, so if he

16

wanted to gain -- if he wanted to get clips, like

17

anybody else -- you know, I've come -- there are a lot

18

of producers that say, hey, we'd like to get clips of

19

this, this and this, and we go to CLC and how much is

20

that -- you know, how much do we sell it for or

21

whatever --

He was

22

Q.

Yeah.

23

A.

Yeah, right.

24

Q.

Okay.

25

A.

So -- so that -- that -- yeah, that -- that

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You've got to pay for that, right?
Exactly.

So --

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was never -- so -- so when you talk in those broad

2

terms, no, I never got the -- I never had the view that

3

outside of their athletics eligibility they couldn't --

4

you know, they couldn't use their use and image for

5

whatever kind of profit that they could get, you know.

6

Q.

All right.

Well, just to -- just to follow

7

the line on that, if -- if I hear what you're saying,

8

you were of the mind-set that if a -- a player who had

9

exhausted his eligibility wanted to purchase clips or a

10

game or whatever he wanted to do, he -- he had the --

11

the wherewithal to -- to go to whoever held the rights

12

and to get those clips, right?

13
14

A.

Yeah.

They may not be purchased.

It may just

be that they just provide it to him.

15

Vince went to University of Texas.

You

16

know, Texas may say, oh, Vince, here, here's you know,

17

15 minutes of your --

18

Q.

Okay.

19

A.

-- of your game.

20

Q.

Okay.

21
22

MR. HOWARD:
tape.

We're going to change the

Just hold the --

23

THE WITNESS:

24

MR. HOWARD:

Sure.
-- thought for a second.

25

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MR. HOWARD:

2

MS. DEAN:

3

THE VIDEOGRAPHER:

4

Okay.
I'd like to take a break.
Off the record at

10:44 a.m.

5

(Recess 10:44-10:54 a.m.)

6

THE VIDEOGRAPHER:

7
8
9

12

number 2.
Q.

This begins media

We're back on the record at 10:54 a.m.
We were talking about the negotiation of the

TV contracts in 2007 and 2011, so I'd like to come back

Q.

Did -- and I think we had agreed that you

13

understood at the time that there would be rebroadcasts

14

where players would be -- would be on television in a

15

rebroadcast situation where they had exhausted their

16

eligibility; you --

17

A.

Yes.

18

Q.

-- understood that?

19

Okay.

And then just to pick up the

20

thread, you -- you had explained that you understood

21

the clips, if requested, could be made available to a

22

player that had exhausted its elig- -- his eligibility?

23

A.

Yes.

24

Q.

Did you -- did you ever consider whether or

25

not the players would be entitled to compensation for

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the use of their name, image and likeness where they

2

were no longer athletes, but their image was still

3

being used in a rebroadcast situation?

4

A.

No.

5

Q.

Why not?

6

A.

I can't tell you why not.

7

Q.

It was just something that you -- you

8

understood that --

9

A.

No.

10

Q.

-- was the way it was going to be?

11

A.

Correct.

12

Q.

Was there anybody -- was there any effort made

13

to include the -- the athletes as being able to

14

participate in the compensation that was being paid by

15

the networks in connection with these contracts?

19
20

A.

More than their student -- their grant-in-aid,

no.

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eligibility?

2

A.

Beyond --

3
4

MR. WIERENGA:

THE WITNESS:

6

A.

I apologize.

I'm -- I'm trying to re- -- reformulate the

question.

8
9

Object to the form,

asked and answered.

5

7

Sorry.

MS. DEAN:

She can read it back, if you

want.

10

THE WITNESS:

11

back.

12

Yeah.

Go ahead, read it

I think it was a good -- I just don't remember.

Go ahead.

13

(Record read.)

14
15

Q.

As you sit here today, do you believe that if

16

some portion of the rebroadcast royalties, for lack of

17

a better word, were provided to athletes that were no

18

longer eligible, that that would have any detrimental

19

effect on college sports?

23
24
25

A.

Yeah, I -- I -- I don't know.

First of all,

the value of those rebroadcast rights isn't very high.
Q.

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Okay.
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A.

So I don't think we really thought about any

2

of that beyond, you know, what all was being provided

3

for -- of that money that would go toward grant-in-aid

4

for all the student-athletes, you know, not just the

5

ones that were appearing in the broadcast.

18

Q.

I'm just looking for your best answer --

19

A.

Yeah.

20

Q.

-- today.

21

A.

Yeah.

I mean --

25

A.

Yeah.

I -- I just -- there's too many -- too

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2

many variables that I have to consider.
Q.

Could -- for the record, could you just

3

provide the variables to me, and then we'll move on to

4

another topic?

7

A.

Yeah, I -- I think as -- maybe this is from my

8

old -- you know, the -- the foundation of a lot of that

9

intercollegiate athletics is the -- is recruiting and

10

the fact that you try to make it as level as you can

11

for institutions to recruit.

12

So I always come at it -- and being an old

13

enforcement guy, too -- from the position of, could

14

School A provide a lot more incentive to a recruit to

15

come because of, you know, saying, well, if you come

16

here and the rebroadcast rights are going to be worth X

17

and you're going to have, you know, 50,000 more dollars

18

than if you go to School B, and then -- and then that's

19

going to --

20

Q.

In a different conference?

21

A.

Well, even in the same conference.

22

Ohio --

Iowa State versus Texas --

23

Q.

Right.

24

A.

-- you know.

25

And even if it wasn't defined --

I mean, there's -- that's what I mean by the variables.

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So that would have to be understood.

2

It's not -- we don't have a draft, you

3

know.

And I think everybody would be -- object to

4

drafting 17-year-olds to say, sorry -- I mean, God --

5

they'd have to go to Michigan or Penn, for God sakes.

6

And so -- so I -- so I think that

7

that's -- that's -- that's the prism that you have to

8

view a lot of that stuff through.

9
10

Q.

You think there would be less fan interest if

that were to occur?

11

A.

Absolutely.

12

Q.

Why is that?

13

A.

Because then if it imbalances the recruiting,

14

then you'll have only a handful -- you can -- the Boise

15

States of the world may not exist.

16

Q.

Do you think that the money is so significant

17

that it would have a material impact on either

18

recruiting or fan interest?

19

A.

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No question.

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2

A.

Yes.

So they can access the marketplace like

any other student.

3

Q.

But that's not true, though, right?

4

MR. LAURIDSEN:

5

MS. DEAN:

Objection --

Objection, arguing with the

6

Re:
9
Book,
Drop
10
per 5:20
Order

Q.

I think the point that I'm just trying to

generally get at
is that when you

12

play college football and basketball, there are certain

13

constraints put on your ability to market your name,

14

image and likeness.

Would you agree with that?

16

A.

I would agree --

18

A.

Yeah, I would agree.

20

Q.

Okay.

21

A.

If that's the route you choose, there are

19

22

Yes, I would agree.

Yeah.

certain constraints.

23

Q.

And who makes those constraints?

24

A.

The membership of the NCAA.

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Do you recall whether there was an
13

issue at the Big 12 about whether or not the football

14

players and basketball players were graduating at a --

15

at a rate comparable to nonfootball and nonbasketball

16

players?

17

A.

It -- yes.

That was always part of the

18

discussion, and the genesis for the Group of Six is to

19

try to continue to improve the graduation rates for all

20

student-athletes, and there was a focus on football and

21

men's basketball.

22
23

25

Q.

And -- and why are the football and basketball

players lagging behind?

A.

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Yeah.

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Q.

Uh-huh.

2

A.

-- a number of those athletes have come into,

3

you know, institutions that are prominent institutions

4

that are -- with -- with -- and they're not as prepared

5

necessarily as the regular student body.

6

some -- there's some -- there's a lot of effort,

7

energy, resources committed to providing those

8

student-athletes with the -- catching up with the

9

preparedness.

10
11
12

And a number of them are not as focused

on academics as they are on the -- on the sport.
Q.

In other words, some of them are just there to

play sports and not to go to school, right?

13

MR. WIERENGA:

14

MS. DEAN:

15

MR. WIERENGA:

16

MS. DEAN:

18
19

So there's

A.

Objection --

Object --- foundation.

Object to the form of the

I mean, some, perhaps, but I don't -- I'd have

to talk to them about that.

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Q.

-- right?

2

Did you -- in the normal course and scope

3

of your duties as either an associate commissioner or

4

the commissioner of the Big 12, did you receive reports

5

on the status of television negotiations?

6

A.

Yes, sir.

7

Q.

And this would be typical of such a report you

8

might get?

9

A.

Yes, sir.

10

Q.

And you would get updates both verbally and

11

written, right?

12

A.

13

Q.

17

Q.

18

Yes, sir.

Okay.

What -- when -- when did you actually

become the commissioner of the Big 12?

19

A.

Sep -- well, September 5, 2007.

20

Q.

All right.

And in the calendar year 2007, one

21

of your job responsibilities included participating in

22

the negotiations with FOX, right?

23

A.

Yeah.

24

Q.

I'm sorry.

25

A.

Yeah.

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It was with ABC/ESPN.

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Q.

Yes, ABC --

2

A.

Right.

3

Q.

-- ESPN, and later on with -- with FOX, right?

4

A.

In 2 -- in 2003, with FOX; 2007 with ABC/ESPN;

5

and 2000 --

6

Q.

'11.

7

A.

-- '11 with FOX --

8

Q.

Right.

9

A.

-- right.

10

Q.

Okay.

Now, let's take a look at the third

11

full paragraph, beginning with Mr. Weiberg providing

12

the directors with an overview of the contractual

13

obligations.

14

Do you see that paragraph?

15

A.

Yes, sir.

16

Q.

We had talked earlier about the desire on the

17

part of the Big 12 to -- for lack of a better word,

18

capture the rebroadcast rights.

19

A.

Yes, sir.

20

Q.

Okay.

21

A.

Our member institutions wanted to use them on

Why was that valuable to the Big 12?

22

their own either, you know, distribution systems,

23

networks, Web sites, whatever it was.

24

Q.

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Okay.

And was there a monetary value attached

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Q.

Do NCAA rules prohibit EA from paying former

7

student-athletes for the use of their name, image or

8

likeness?

10

A.

My understanding is they do not.

11

Q.

Do Big 12 -- any Big 12 conference rules

12

prohibit such compensation being paid to former

13

athletes?

14

THE REPORTER:

I'm sorry.

Could you

15
16

Q.

Do any -- well, it's the same question as to

17

the Big 12.

18

from paying former student-athletes for the use of

19

their name, image or likeness?

20

A.

Does -- do any Big 12 rules prohibit EA

And my answer is the same:

21

MS. DEAN:

22

MR. HOWARD:

23

THE VIDEOGRAPHER:

24

No.

I think lunch is here.
Okay.

Let's take a break.
Off the record,

12:49 p.m.

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9
10

Q.

All right.

And I take it that, again,

throughout this -- well, let me back up.

11

In negotiating this -- this contract that

12

you signed, you had an understanding that there was no

13

need to consult with the players on the issue of

14

compensation -- former players, because by

15

participating in the contest, there was no need to

16

compensate them for any fashion, even if there was a

17

rebroadcast under this contract?

18
19

MR. HENDERSON:
answered.

20

23

Objection, asked and

MR. WIERENGA:

A.

And foundation and -- well,

There were no former players that were at the

24

point in time of this contract -- that were subject to

25

this contract.

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Q.

Okay.

2

A.

Because this was all about future football

3

There were -- this contract --

games.

4

Q.

I understand.

5

A.

Okay.

6

Q.

Okay.

7

It's a 13-year contract or a 12-year

contract?

8

A.

Yes.

9

Q.

Okay.

10

A.

Correct, of future games.

11

Q.

Of future games --

12

A.

Okay.

13

Q.

-- right.

14

And it called for rebroadcasts, right?

And so by -- by definition, at some point,

15

as I think you've explained, you understood that they

16

would -- there would -- there was the potential for

17

rebroadcasts, including rebroadcasts of games where

18

players would be shown on television that were no

19

longer eligible, right?

20

A.

That's correct.

21

Q.

And you -- everybody understood that, right?

22
23
24

MR. WIERENGA:

Object to the form,

foundation.
A.

Well --

25

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2

A.

I don't even know if everybody even thought

about that, but -- so I can't really --

3

Q.

Okay.

4

A.

-- speak for everybody.

5

Q.

Okay.

6

It certainly was a logical starting

point?

7

A.

To my logic.

8

Q.

Okay.

9

Well, you're -- you're the logic that I

want to know about.

10

A.

11

Okay.

Q.

17

All right.

So, again, from your perspective, no need

18

to consult with the -- with any players who might

19

become former players in the future because by virtue

20

of participation in the live broadcasts, there was no

21

obligation to pay them anything in the future, right?

24

A.

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Yes.

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A.

2

And I wouldn't even know who those players

3

were.

How would I know which players were coming into

4

the Big 12 institutions and which ones I would have to

5

talk to?

6

consultation by legal counsel --

The other thing is I didn't have any -- any

7

Q.

Right.

8

A.

-- that there was any issue with that either.

9

Q.

Right.

10

Well, you understood that at some point

11

players that were on the roster as of April 1, 2011,

12

when this was signed, would be participating in live

13

games, right?

14

A.

Well, how would I know they wouldn't transfer

15

or quit or something like that or leave in some form or

16

fashion?

17

Q.

Okay.

Well, I'm -- I -- I think my -- I'm

18

just kind of trying to say something that's inherently

19

logical here, which is that, basically, you understood

20

that this contract was going to be covering both live

21

broadcasts --

22

A.

Yes.

23

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Q.

Back up.

2
3

When you left the Big 12, was it something
that was still being considered?

4

A.

I don't remember that either.

5

Q.

Okay.

6

So you just didn't really work on that

project?

7

A.

No, I wasn't engaged in that.

8

Q.

Okay.

9
10

MR. HOWARD:

MR. WIERENGA:

I thought you were at the

end.

13
14

So let's take a break,

because I'm getting to the end.

11
12

Okay.

THE VIDEOGRAPHER:

Off the record,

4:02 p.m.

15

(Recess 4:02-4:10 p.m.)

16

THE VIDEOGRAPHER:

17
18

number 7.

This begins media

We're back on the record at 4:10 p.m.

Q.

21

Are you aware of any facts, as opposed to

22

maybe perhaps opinion, that paying former athletes

23

either for rebroadcasts, royalties or the use of their

24

images -- name, image and likeness in video games would

25

somehow upset the competitive balance that presently

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3

exists in college football and college basketball?

A.

I mean, you'll have to tell me if this is a

4

fact, but in my 30 years of experience, including being

5

an investigator, and then talking to a number of

6

student-athletes and understanding their -- and my own

7

experience as a student-athlete and the background I

8

came from without having any resources whatsoever

9

available to me --

10

Q.

Uh-huh.

11

A.

-- and having to not only just be on a partial

12

scholarship, which was challenging, but also work, that

13

that -- that fact and the fact of statements that

14

those -- those student-athletes, prospective

15

student-athletes told me, I know for sure that the

16

ability to -- to receive more money would have been a

17

factor in what school they would have chosen and,

18

therefore, disrupting the competitive balance within

19

the NCAA.

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14

Do you have any objective facts like

15

research or, you know, polls or any of those kind of

16

things?

19

A.

20

No, other than my own facts that I've

gathered.

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