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 B

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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IN RE NCAA STUDENT-ATHLETE

) CASE NO.

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NAME & LIKENESS LICENSING

) 4:09-cv-1967 CW (NC)

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LITIGATION

)

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The videotaped deposition upon oral

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examination of DAVID BERST, a witness produced and

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sworn before me, Debbi S. Austin, RMR, CRR, Notary

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Public in and for the County of Hendricks, State of

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Indiana, taken on behalf of the Plaintiffs, at the

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offices of Faegre Baker & Daniels, 300 North

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Meridian Street, 27th Floor, Indianapolis, Marion

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County, Indiana, on the 25th day of May, 2012,

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commencing at 9:00 a.m., pursuant to the Federal

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Rules of Civil Procedure with written notice as to

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time and place thereof.

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MR. CURTNER:

Good morning.

My name is

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Greg Curtner.

I'm with the firm of Schiff

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Hardin, and I represent the National Collegiate

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Athletic Association.

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MR. REMY:

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MR. LAURIDSEN:

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Donald Remy with the NCAA.
Adam Lauridsen with Keker &

Van Nest for Defendant Entertainment Arts.

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MR. BOYLE:

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Peter Boyle with Kilpatrick

Townsend & Stockton for Defendant CLC.

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DAVID BERST,

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having been duly sworn to tell the truth, the whole

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truth, and nothing but the truth relating to said

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matter, was examined and testified as follows:

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DIRECT EXAMINATION,

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Q

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Good morning, Mr. Berst.

For the record, can

you state your full name?

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A

Samuel David Berst, Jr.

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Q

You go by David Berst?

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A

Yes.

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Q

What's your current position title?

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A

I'm the vice president for Division I.

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Q

What do you do?

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A

I manage the governance structure of the

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association in Division I, and that means that

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issues that come up to the board of directors,

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the presidential group within Division I, I try

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to assess the thinking of conferences that have

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votes in Division I.

And I attempt to manage,

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then, the agendas and initiatives that are

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working their way through the association from

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the various committees, cabinets, councils,

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groups within the NCAA.

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professional bureaucrat.

I'm a facilitator, a

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Q

How long have you had your current job?

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A

About 13 years.

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Q

What was your job directly before that?

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A

I was the -- well, a whole host of titles, but I

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for 25 years worked in the enforcement area

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beginning as what you would call a field

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investigator with a different title and then

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directed that program with differing titles

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beginning in 1975 through '98, I believe.

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certainly.

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4

(Deposition Exhibit 267 marked for

Q

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I'm going to mark an excerpt -- excerpts of the
D-I manual.

Q

Looking at what's been marked as Exhibit 267,

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does this appear to you to be selected excerpts

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from the NCAA 2011-2012 Division I manual?

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MR. CURTNER:

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record what excerpts are here?

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MS. STEINER:

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The exhibit will be in the

record.

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MR. CURTNER:

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Can you identify for the

All right.

So the record

should reflect that we've just been handed

A

It appears to be excerpts at least related to

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bylaws 12, maybe 15.

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see 14, I don't think.

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to be a couple of the bylaws, yes.

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Q

All right.

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15, yes.

Not -- I don't

But okay, it does appear

If you could turn to what is

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A

Yes.

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Q

What does competitive equity mean?

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A

That's -- there are lots of ways to think about

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it.

The more up-to-date sort of conversations

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about fair competition and then possibly trying

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to give some clarity to competitive equity,

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there -- I mean, it's always a debate about what

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competitive equity is and what really does

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balance competitive equity.

But it is always a

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consideration among our Division I membership

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and influences, I think, their decisions.

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Q

Turning to page 61 of the manual, which is in a

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number -- which is in bylaw 12.

Bylaw article

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12 is titled "Amateurism"; correct?

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16

Q

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18

And according to the definition contained in the
Division I manual, what is an amateur?

A

Well, it's one who pursues athletics as an

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avocation and is part of -- well, does not use

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their name, reputation, or likeness for pay or

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promise of pay in any form.

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defines the grant-in-aid provisions that may be

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provided and begins to set forth some of the

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exceptions to -- to enhance the grant-in-aid.

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So it's a general description of what kinds of

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It is one that

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individuals are qualified or eligible to

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participate in an NCAA -- at an NCAA member

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institution.

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So bylaw 12 then, you know, affects the

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eligibility of student-athletes if they don't

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adhere to these guidelines or principles or

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rules, then that doesn't mean they can't do

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whatever it is that the action may be, but they

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are no longer eligible for competition at an

10

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NCAA member institution.

Q

There's no age limit to be an amateur under the

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NCAA rules?
A

There are some limitations related to organized

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competition after the age of 21 and when you can

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continue to participate on a Division I level.

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It's a different rule than what applies to

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Divisions II and III, where it's just based on

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enrollment and X number of semesters or

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quarters.

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say, you know, wait a minute, a cross country

But there is an effort to sort of

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runner who becomes mature and can beat everybody

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at 26 may not be the right kind of individual to

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fit into the competition on a collegiate level.

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So it's a different place that you would go.

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think actually bylaw 14.

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Q

All right.

I

Let's talk about men's basketball

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and football.

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sports in order to be considered an amateur?

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A

Is there any age limit in those

It would apply just the same way I described.

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If they're involved in organized competition,

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and it's pretty easy to be in organized

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competition, then you start ticking off years of

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eligibility.

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eligibility in a five-year period once you begin

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enrollment at a collegiate -- any collegiate

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institution.

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You only have four years of

So you -- by not being enrolled

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and participating in organized competition, you

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can use up some of those years.

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Q

Okay.

Let me --

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A

So the technical answer is you're right, but

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you'd have to not be playing, and then it's

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unlikely you're going to be good enough to be at

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a Division I institution.

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Q

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Okay.

Let's talk specifically -- let me give

you an example.

An 18-year-old can be drafted

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and sign with a professional baseball team, play

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baseball, let's say, for six years.

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He can then enter college and be considered an

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amateur for purposes of football; correct?

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A

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It's possible for that to occur, if all the
other caveats don't apply.

Q

So he's 24.

That's right.

Let's go back to that same multisport athlete,

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good baseball player, can sign a million dollar

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signing bonus to play baseball, play baseball

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for a number of years, then decide to enroll in

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college and be a football amateur; correct?

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A

Yes.

That person is considered a professional

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in the sport in which they were paid and not a

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professional in the sport that would be

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considered an avocation at that point, that's

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right.

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Again, that changed probably 1974.

But

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prior to that time, once you became -- actually,

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once you even thought about being a

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professional, you were.

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to be drafted, you just declared, you know what,

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I'm going to become a pro, you were in all

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sports, and that was the end of your collegiate

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career.

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So you didn't even have

So the rules have changed or evolved over

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that period of time where, yes, you can be a pro

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in one sport and not in another.

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MR. CURTNER:

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Are you at an appropriate

place for a break?

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MS. STEINER:

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second.

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I think I am.

Hang on a

questions and then.

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Let me just ask a couple hockey

MR. CURTNER:

Q

Am I correct that an individual can play

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professional hockey and then subsequently enroll

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in college and play collegiate hockey and be

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considered an eligible student-athlete?

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A

Unless I misheard you, I don't think so, no.

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Q

You can't play in the Canadian Junior League and

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be compensated and then enroll in college and

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play college hockey at the D-I level?
A

Not compensated, no.

You can sign a deleted

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contract and not be paid and still play amateur

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hockey.

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There's major junior A, major junior B, I think,

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and other programs.

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to do that.

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9

You can't play professional hockey.

But it would be complicated

In addition, if any of those people you're
talking about, gets an agent, they're out in all

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sports.

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describing it.

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hockey experience and come back and play hockey,

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but not on the professional level.

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So it doesn't quite work the way you're
There is a way to design a

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Q

Let me give you an example of a proposed consent

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form, and then I would like you to tell me if

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this consent form violates any NCAA bylaws.

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Okay.

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"When you sign this consent form, you will

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allow the University of Kentucky to promote NCAA

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championships or other NCAA events, activities

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or programs, or Kentucky basketball games in

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which you played.

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promises to share with you any revenues derived

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after your eligibility ends for the use of your

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name, image, or likeness."

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A

The University of Kentucky

Yes, that would violate NCAA rules.

That would

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be the promise of pay to a student-athlete who

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remains eligible.

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don't be a student-athlete anymore.

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fine to do that and move on.

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So you could do that, just
It would be

But the actual receive of pay for your

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athletic reputation or skill, either while a

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student-athlete or the promise of pay in the

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future is the same under our rules.

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frankly is the nonstarter I've been talking

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about with our membership.

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simply won't go there.

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And that

Our presidents

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Q

Kentucky -- can Kentucky have an institutional

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rule that says, at the University of Kentucky,

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we will share with our former student-athletes

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revenues derived from the use of their name,

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image, or likeness when they were a Kentucky

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student-athlete?

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A

My answer would be no, they could not do that.

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I think they're -- they're essentially

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establishing a contract that is a promise for

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pay for the reputation or skill of that

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particular student-athlete.

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the same answer.

Kentucky can't do that, nor

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can anyone else.

If -- yeah, I don't know

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how -- any form that you could end up doing

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that.

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I think it's really

I suppose there's -- yeah, I don't know
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how to get there from here.
Q

Can Kentucky -- I'm going to go back and give

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you a hypothetical first.

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starting five of Kentucky has -- of Kentucky's

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championship team from this last year's

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Division I championship, has all declared

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themselves eligible for the draft, have all

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retained agents.

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Let's say the

Can Kentucky issue those players, former

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players, checks, write out a check to them,

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saying, we're going to be using your name,

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image, and likeness in the future because, you

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know, we won and it's going to be on our website

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and we're going to show clips, we're going to

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give you a hundred thousand dollars each,

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thanks.

Can they do that?

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A

The --

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A

I think you need the academic and membership

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affairs group to help with that kind of thing.

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If you somehow can distinguish that sort of

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arrangement from the eligibility of a current

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student-athlete or some understanding that

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that's what's going to happen, if you go to

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Kentucky versus Memphis versus whatever the

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other schools are, then it's -- it's not

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inconceivable to me that you could do something

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like that.

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be a part of their professional life by using

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them down the road.

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You know, Kentucky is just going to

And so I can imagine how you could possibly

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conjure up that sort of a scenario, but I

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would -- I'd say you have to really make sure

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there's a disconnect between what the

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expectations are when you're a student-athlete

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and what's going to happen in the future, that

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connection -- there has to be a clear cut to the

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professional life.

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be agents for student-athletes and can't be the

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professional enterprise either for an enrolled

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student-athlete's -- student-athlete.

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enter into business relationships with -- with

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former student-athletes.

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Q

You know, our schools can't

They can

Can Kentucky issue a statement that says, we

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will share with any student-athlete who

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participated in men's basketball revenues

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Ms. Newman are currently working on the

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institutional issues that are listed there as A,

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B, and C.

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A

And none of this rings a bell.

I don't recall

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this meeting.

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something with Rachel Newman in this regard.

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She is someone who worked with agent issues and

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gambling, and so it doesn't compute.

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the -- the form of the agenda doesn't look like

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something I've seen or know of in our building,

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so I just can't help with you this one.

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(Deposition Exhibit 283 marked for

14

Q

And I don't recall doing

And even

I'm showing you what's been marked Exhibit 283,

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which is a two-page e-mail string Bates numbered

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NCAA production 00181574, 75.

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Can you take a moment to orient yourself to

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this document, please.

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A

Yes, I know what this is or have seen it, yes.

20

Q

What was the purpose in you writing this e-mail

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to Jim Isch?

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A

Isch.

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Q

Isch.

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A

It is -- I've got two copies here.

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They're

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Q

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Okay.

Why don't you -- since that's the

exhibit, let's --

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A

It's just two pages; right?

4

Q

Yeah, it should be just two pages.

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You have two

sets there?

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9

A

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The -- this was at least my attempt to give

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Jim Isch, who had been the acting president of

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the association, my take on issues.

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represents my thinking on various topics for his

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information.

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So it

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