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 C

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page1 of 95

WALTER BYERS, JULY 24, 2007
Page 1
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

JASON WHITE, BRIAN
POLAK, CHRIS CRAIG and
JOVAN HARRIS, on Behalf
of Themselves and All
Others Similarly
Situated,

)
)
)
)
)
)
)
)
)
) Case No.
) CV 06-0999 VBF (MANx)
)
)
)
)
)
)
)

Plaintiffs,
vs.
NATIONAL COLLEGIATE
ATHLETIC ASSOCIATION,
an unincorporated
association,
Defendant.

VIDEOTAPE DEPOSITION

OF
WALTER BYERS

Taken on behalf of the Plaintiffs pursuant to Notice of
Deposition on the 24th day of July 2007, beginning at
the hour of 8:40 a.m. CST, at the Byers Ranch,
25695-25709 Aiken Switch Road, Emmett, Kansas 66422;
Dana Burkdoll, Shorthand Reporter.

Esquire Deposition Services, LLC
[phone]

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page7 of 95

WALTER BYERS,

JULY 24, 2007
Page 7

4

Q.

Can you state your name for the record, sir.

5

A.

Walter Byers.

6

Q.

How old are you now, Mr. Byers?

7

A.

Eighty-five.

8

Q.

I understand that you're retired, now, sir; is

9

that correct?

10

A.

That's correct.

11

Q.

And how long, sir, have you been retired?

12

A.

Well, I guess from the NCAA, if that's what

13

you're talking about, not the cattle business, I retired

14

in '90 -- 36 years there from '51 to '87.

15

two years as an emeritus and retired at that point after

16

the two years emeritus.

20
21
22

Q.

And then had

Sure, can you tell me when you first started

working at the NCAA?
A.

Well, I started in 1947, I think, I worked

23

part-time for both the NCAA and the Big Ten Conference

24

and shared a secretary, one secretary, and worked

25

approximately 50 percent of my time both places.

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And

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page8 of 95

WALTER BYERS,

JULY 24, 2007
Page 8

1

then I became -- I was NCAA Executive Assistant during

2

those years, and then I became Executive Director in the

3

fall of '51, and then I worked full-time for the NCAA

4

thereafter.

5

Q.

Let's start with your first position at the NCAA.

6

Can you tell us a little bit -- I know it was long ago,

7

but can you tell us generally what your duties and

8

10
11
12

Q.

Yes, sir.

You said from about 1947 up until you

became Executive Director of 1951 -A.

I did a lot of jobs that nobody else wanted to

13

do, I'll say that, starting out.

14

publicity.

15

the commissioner, who was Kenneth L. (Tug) Wilson, who

16

was also the Secretary/Treasurer of the NCAA at that

17

time.

18

and I guess that's about it.

19

Q.

And I handled the

I handled meeting arrangements.

Assisted

I assisted him at any jobs he wanted to perform,

Now, you stated, sir, that you became the

20

Executive Director of the NCAA in 1951.

21

a little bit about what it is that you did as the

22

Executive Director?

23

A.

24

Can you tell us

Well, you're talking about 36 years now or are

we --

25

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Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page9 of 95

WALTER BYERS,

JULY 24, 2007
Page 9

1
2

How long did you hold the position of Executive
Director?

3

A.

Well, from '51 to '37 -- '87.

4

Q.

And as Executive Director, Mr. Byers, were you

5

the NCAA's highest ranking official?

6

A.

That's true.

7

Q.

Basically, the CEO, sir, of the NCAA?

8

A.

Yeah.

9
10
11
12

Roughly speaking, I was the manager so to

say.
Q.

For those 36 years, sir, can you give us a sense

of your duties and responsibilities?
A.

Well, starting out it was a new organization

13

really, and we started out trying to hold the thing

14

together because it was -- it was kind of a rough birth

15

for the organization.

16

enforcement -- well, we ran championships to start with.

17

We had a whole series of championships that we took care

18

of at those early years.

19

And we had -- television had not come on forcefully, but

20

it was raising its head, so we had television

21

negotiations.

22

the rules and finally had to have a major enforcement

23

department in that area.

24

topsy.

25

one secretary, and I suppose in the -- in the last year,

And we gradually moved into

I'm talking about in the 50s.

Then we finally got into enforcement of

And it kind of grew like

We started out with one full-time employee and

Esquire Deposition Services, LLC
[phone]

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page10 of 95

WALTER BYERS,

JULY 24, 2007
Page 10

1

I suppose, we had 165 to 70 full-time employees.

2

a growth situation.

3
4

Q.

It was

And to be clear, sir, by the last year, you're

talking about 1987?

5

A.

Yeah.

6

Q.

You mentioned enforcement, sir, can you tell us

7
8
9

what you mean by "enforcement"?
A.

Well, the NCAA had a, starting out, had an honors

program more or less.

The people would agreed to abide

10

by the rules and wouldn't cheat on them.

11

a pledge of honor, I guess.

And so there was good faith

12

acceptance of that premise.

And then, of course, once

13

more rules came into play, there was less belief, at

14

least within the organization, that those who said they

15

were following the rules, weren't actually doing it.

16

we started an enforcement program.

17

really, and it grew until -- it was a major element of

19

Q.

That was just

So

I guess, one person

You also mentioned television, sir.

As the

20

NCAA's Executive Director, did you have any involvement

21

in the negotiation of television contracts for college

22

sports?

23

A.

24
25

Yes.

I probably got involved from the first one

until the last one.
Q.

Does the NCAA, sir, hold annual meetings or did

Esquire Deposition Services, LLC
[phone]

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page11 of 95

WALTER BYERS,

JULY 24, 2007
Page 11

1

it at the time that you were there?

2

A.

Yes.

3

Q.

Did you attend those meetings, sir?

4

A.

Yes.

5

Q.

And did those meetings involve the legislative

6

process at the NCAA?

7

A.

Yes.

22

Q.

During your time at the NCAA, sir, did you have

23

occasion to become familiar with the NCAA's notion of

24

amateurism?

25

A.

Yes.

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Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page13 of 95

WALTER BYERS,

JULY 24, 2007
Page 13

2

Q.

How about the NCAA's financial aid rules,

3

Mr. Byers.

Did you have occasion to participate in the

4

legislation and enforcement of the NCAA's financial aid

5

rules during your time there, sir?

6

A.

Yes.

7

Q.

And can you tell us for how long, during your

8
9

time at the NCAA, the NCAA had financial aid rules?
A.

Well, the first, I guess, the standard, you call

10

it, which is -- I think took place in 1948, give or

11

take, the "Sanity Code" was the first effort, serious

12

effort, for the membership to the adopt rules that would

13

apply to athletes at the colleges in season.

14

Q.

Uh-huh.

15

A.

We had eligibility rules almost from day one that

16

applied to the NCAA championships.

17

place, I guess, at the time I came -- attached to the

18

NCAA.

19

adopt in-season standards that members would have to

21
22

Q.

And they were in

But the "Sanity Code" was the first effort to

And did the NCAA's financial aid rules change

during your time at the NCAA?

23

A.

Yes.

24

Q.

Did you have occasion, sir, to participate in

25

those changes?

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Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page14 of 95

WALTER BYERS,

JULY 24, 2007
Page 14

1

A.

Well, I had an opportunity to participate in

2

discussions leading up to those changes.

3

always were made on the floor of the convention or by

4

the NCAA counsel through interpretations, you know, so

5

with that explanation.

6
7

Q.

The changes

Sir, are you familiar with a book entitled,

Unsportsmanlike Conduct:

Exploiting College Athletes?

8

A.

Yes.

9

Q.

I'm going to mark this, Mr. Byers, as our first

10

exhibit.

This is Exhibit 398 for the record.

11

Actually,

I'll just go ahead and mark it.

12

(Exhibit No. 398 was marked for the record.)

13

MR. NAGY:

14

18
19
20
21

Do you need a copy, David?

MR. GRAND:

Q.

Can you tell us sir, who wrote this book,

Unsportsmanlike Conduct?
A.

I -- I authored the book with the assistance of

Charles Hammer.

22

Q.

How long did it take you to write this book, sir?

23

A.

Two years, I guess, something like that.

24
25

It --

it took longer than I expected, let me put it that way.
Q.

You mentioned earlier, Mr. Byers, that you worked

Esquire Deposition Services, LLC
[phone]

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page15 of 95

WALTER BYERS,

JULY 24, 2007
Page 15

1

as the NCAA's Executive Director until 1987 and then as

2

an emeritus until 1989.

3

have you continued to monitor and study the NCAA?

Since that time, since 1989,

4

A.

Since '89?

5

Q.

Yes, sir.

6

A.

Not particularly.

7

Q.

When did you publish this book, sir?

8

A.

Well, I'll have to look at the title page, I

9

guess --

10

Q.

Sure.

11

A.

-- because I don't recall exactly when it was

12
13

published.
Q.

It was copyrighted 1995.

So up until that time, sir -- I'm simply getting

14

to this point -- you discussed the NCAA's activities and

15

it's bylaws in this book --

16

A.

That's true.

17

Q.

-- through 1995.

So my question for you, sir,

18

is, were you doing any research at that time concerning

19

the NCAA?

20

MR. GRAND:

21

THE WITNESS:

Object to the form.
I did research leading up to

22

the book, extensive research.

And as you'll notice

23

there is a great amount of footnotes all these -- all

24

these statements I make, but I'm not clear, I guess, on

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Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page19 of 95

WALTER BYERS,

JULY 24, 2007
Page 19

1

MR. GRAND:

I do object to questions asking

2

this witness about the NCAA's overall understanding or

3

the NCAA's overall purpose in -- in taking any

4

particular conduct or not taking any particular conduct.

5

MR. NAGY:

Sure.

Why don't we agree right

6

now, you've got a running objection on the particular

7

point throughout the entire deposition because I'm going

8

to be asking questions like that all day.

9

MR. GRAND:

10

12

That's fine.

MR. NAGY:

Q.

Let's go back, sir, to Exhibit 343.

Can you tell

13

us, generally speaking, Mr. Byers, what was the purpose

14

of the NCAA manual?

15
16
17

A.

Well, it was to codify the rules and regulations

of the association that the members agreed to.
Q.

I want to talk, sir, for a moment about a rule

18

that's enforced today.

19

it's on a page in this manual that I've marked for you,

20

sir, with a flag.

21

record, I'm on NCAA199000.

22

It's called Bylaw 15.02.5 and

Again, sir, it's 15.02.05 and for the

Do you see that bylaw there, sir?

23

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Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page20 of 95

WALTER BYERS,

JULY 24, 2007
Page 20

5

Q.

Are you familiar with the term "grant-in-aid"?

6

A.

Yes.

7

Q.

Can you tell us, sir, what you understand that

8

term to mean?

9

A.

Based on this language or just grant-in-aids

11

Q.

Just grants in aids generally, sir?

12

A.

Well, a grant-in-aid is a -- I mentioned the

13

"Sanity Code" earlier, and when the "Sanity Code" failed

14

for reasons I'm -- not particularly relevant at the

15

moment, the NCAA adopted a grant-in-aid rule and it --

16

it legalized the grant-in-aid to student athletes for

17

all -- it could run for the full undergraduate period of

18

the recipient or it could run for any part of that full

19

-- full four or five years or it could run for only one

20

semester, that was up to the institution.

21

in place, and I think in '56, what I've described was a

22

full grant-in-aid.

23
24
25

But they put

Is that responsive to your question?
Q.

Yes, sir.

I think what I'm getting at is when

you say "grant-in-aid," sir, are you referring to an

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Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page21 of 95

WALTER BYERS,

JULY 24, 2007
Page 21

1

athletic's based scholarship?

2

A.

Correct.

3

Q.

And did you use that term, "grant-in-aid

4

scholarship," with that meaning back during your time at

5

the NCAA?

6
7

A.

Yes.

Well, scholarship was not part of the term

"grant-in-aid."

8

Q.

Uh-huh.

9

A.

Just interpose them all.

The individual's --

10

recipients scholarship performance was related to the

11

"Sanity Code" that I spoke of earlier.

12

Q.

Uh-huh.

13

A.

When the "Sanity Code" was defeated and the

14

17

grant-in-aid was put in place, then it was not an

Q.

Right.

And going forward, sir, after the "Sanity

18

Code," for example in the 1970s, did you use the term at

19

the NCAA, "grant-in-aid" during that time?

20

A.

Yes.

21

Q.

What did it mean to you then, sir?

22

A.

Well, normally a grant-in-aid -- starting in '56

23

and going forward through all the years of change, the

24

grant-in-aid covered board, room, books, tuition, fees

25

and $15 a month for -- well, it was called laundry

Esquire Deposition Services, LLC
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Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page22 of 95

WALTER BYERS,

JULY 24, 2007
Page 22

1

money, but it was really a stipend.

2

months was cash payments -- to the aid recipient.

3

Q.

Fifteen times nine

And I think, sir, you may have just answered my

4

next question.

5

Under today's rule, 15.02.5, a full grant-in-aid cannot

6

contain a stipend for incidental expenses?
No.

Let me go over it though to be sure.

7

A.

There's no provision in this rule to do

8

that.

9

Q.

Correct, sir.

10

A.

Okay.

11

Q.

Yes.

And my question is, sir, is, has the NCAA

12

always prohibited grants-in-aid from including stipends

13

for incidental expenses?

14

A.

No.

15
16
17

MR. GRAND:

Object to the form.

BY MR. NAGY:
Q.

Can you describe, sir, to us when -- during what

18

time period did the NCAA allow its members to provide

19

grants-in-aid to student athletes that included stipends

20

for incidental expenses?

21

A.

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Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page24 of 95

WALTER BYERS,

JULY 24, 2007
Page 24

1

Q.

I understand.

If I use the term laundry money,

2

sir, will you understand me to be referring to the same

3

cash stipend, the same incidental expenses, can we agree

6

Q.

You mentioned, Mr. Byers, that this laundry

7

money, this cash stipend was allowed under NCAA rules

8

from 1956 'til the Economy Convention in 1975, that's

9

about 20 years, sir.

My question for you is, during

10

that 20-year period, did the NCAA consider the student

11

athletes who received laundry money to still be

12

amateurs?

13

A.

Yes.

14

Q.

And during that time period, sir, generally

15

speaking, did the popularity of college football

16

increase or decrease?

17

A.

Increase.

18
19
20

MR. GRAND:
BY MR. NAGY:
Q.

Sir, during the period of 1956 to --

21
22

Lack of foundation.

MR. NAGY:

Yeah.

He's going to be doing

that a lot.

23

THE WITNESS:

24

MR. GRAND:

Okay.
Not if you ask proper questions.

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Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page25 of 95

WALTER BYERS,

JULY 24, 2007
Page 25

15

Q.

Did you have any participation, sir, in

16

discussions or gathering information about demand for

17

college football games?

18

A.

Oh, the -- sports exploded, if that's what you're

19

asking.

20

attendance was up for football and basketball.

21

dollars rolled in and then there's more money for

22

everybody.

23

deals with that whole arena of experience.

24

start of big-time college athletics and then the

25

explosion that came with the television, the airplane,

I mean, the dollars rolled in.

You couldn't -The

I mean, it was a growth period and my book
From the

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[phone]

602
701
NCAA MIL
5 & 7 (Dkt.
No. 166)

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page26 of 95

WALTER BYERS,

JULY 24, 2007
Page 26

1

and all of those things that made it as a big money

2

machine, is what it was.

3

Q.

In this same growth period, sir, 1956 to 1976,

4

did the same trend apply to men's college basketball as

5

well as football?

6

A.

Did the same growth apply that I just described?

7

Q.

Yes, sir.

8

A.

Definitely.

9

Q.

Did any television network, sir, ever express any

10

concern to you about laundry money?

11

MR. GRAND:

12

THE WITNESS:

14

Q.

Objection.
The answer is no.

I mean --

Did you have any indication, sir, that laundry

15

money somehow lessened the popularity or the demand for

16

football or college basketball?

17

A.

No.

Esquire Deposition Services, LLC
[phone]

602
701
NCAA MIL
5 & 7 (Dkt.
No. 166)

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page27 of 95

WALTER BYERS,

JULY 24, 2007
Page 27

1

Q.

Oh, I'm sorry.

2

A.

'75 is the year, right?

3

Q.

Okay.

4

A.

Well, I don't have that date right in front of

5
6

Was it '75 or '76, sir?

me, but...
Q.

I can help you with that.

Because I've got my

7

next big exhibit here.

8

Actually, it's not this one, it's this one.

11
12

Q.

And this one is No. 348.

Would you take a look, Mr. Byers, at Exhibit 348,

please, sir.

13

A.

Okay.

14

MR. GRAND:

15

THE WITNESS:

16

It was in August 14-15, '75.

BY MR. NAGY:

17
18

Thank you.

Q.

Do you remember -- well, first of all, Mr. Byers,

did you attend the Economy Convention?

19

A.

Yes, I did.

20

Q.

Can you tell us who attended this convention

21

besides yourself?

22

A.

Well, the various members of our staff.

But the

23

association's dully-appointed delegates from all -- not

24

all of them but from a number of institutions attended

25

it.

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Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page29 of 95

WALTER BYERS,

JULY 24, 2007
Page 29

14

Q.

Now, looking at 399, Mr. Byers, if you wouldn't

15

mind turning to the second page, sir.

We can just move

16

this.

17

A.

All right.

18

Q.

We see there that the intent of Legislative

19

Proposal No. 4 was to, quote, Contract the definition

20

of -- what's here in quotes -- open quote, commonly

21

accepted educational expenses, closed quote, by

22

eliminating course related supplies and incidental

23

expenses.

24
25

Do you see that, Mr. Byers?
A.

Yes, sir.

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Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page30 of 95

WALTER BYERS,

JULY 24, 2007
Page 30

1
2

Q.

Are you familiar, sir, with the term "commonly

accepted educational expenses"?

3

A.

Yes.

4

Q.

Can you tell us what that meant?

5

A.

Well, that -- that came in, in '56, and it was a

6

term that was applied to the grant-in-aid that was being

7

legalized by the delegates in 1956.

8

it was a phrase written by athletically-related people,

9

not necessarily the academicians dealing with financial

And it was not --

10

aid.

11

to get to is that, it was a basically an athletic term,

12

and it was designed to say that these expenses are what

13

is commonly understood to be a full ride.

14

another term that we used all of the time, "a full

15

ride."

16

That's probably irrelevant, but what I was trying

What's a full ride?

That's

A full ride is grant-in-aids

17

that cover all these things which are commonly accepted

18

educational expenses.

19

didn't respond to your question.

They're interchangeable.

Maybe I

20

Q.

21

You said a full ride was interchangeable with a full

22

Actually, I think that you did, sir.

grant-in-aid; is that correct?

23

A.

Yeah.

24

Q.

And a full grant-in-aid is interchangeable with

25

That's correct.

commonly accepted educational expenses; is that correct?

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Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page31 of 95

WALTER BYERS,

JULY 24, 2007
Page 31

1

A.

Yeah.

That's correct.

16

Q.

So if I'm understanding you correctly, sir, this

17

was a meeting, the Economy Convention, that took place

18

in 1975, in August you told us, and it was attended by

19

members of the NCAA's delegates, and they voted with

20

paddles as we see here; is that right?

21

A.

Right.

22

Q.

Okay.

And it says on this Exhibit, sir, 399,

23

that Legislative Proposal No. 4 was approved.

24

mean, sir, that there was an agreement reached as to

25

whether or not this proposal should be become inactive

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[phone]

Does that

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page32 of 95

WALTER BYERS,

JULY 24, 2007
Page 32

1

in the NCAA?

2

A.

Correct.

3

Q.

I want to turn, sir, to the first page of 399 for

4

a moment, and I want to discuss with you the effect of

5

Legislative Proposal No. 4 on student athletes,

6

Mr. Byers.

7

, it lays out for us, sir, the NCAA Constitution, the

8

relevant portions of the NCAA Constitution and beneath

9

that the relevant portion of the NCAA bylaws.

If we look at both Section A and Section B.

And it

10

shows us how Legislative Proposal No. 4 changed those

11

things.

12

things that were added, sir, on in bold.

13

Things that were removed are in italics and

Can you tell me, Mr. Byers, prior to the NCAA's

14

adoption of Legislative Proposal No. 4, what was the

15

definition of commonly accepted educational expenses?

16

A.

What was the definition prior?

17

Q.

Yes, sir.

18
19

What did commonly accepted educational

expenses include before this?
A.

Well, it provided for all the things listed

20

there.

21

incidental expenses.

22

Including this italicized, the $15 per month for

Is that what you asked me?

23

Q.

Yes, sir.

24

A.

Okay.

25

Esquire Deposition Services, LLC
[phone]

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page37 of 95

WALTER BYERS,

JULY 24, 2007
Page 37

10

Q.

And now, sir, I want to discuss the effect of the

11

NCAA's rule change at the Economy Convention on the full

12

grant-in-aid that student athlete's could receive.

13

told me before, sir, that this rule eliminated

14

course-related supplies; is that right?

You

15

A.

That's correct.

16

Q.

And so I'm going to -- I'm just going to put that

17

down on my list.

18

supplies.

19

were eliminated by this rule; is that correct, sir?

20

24
25

A.

I'm going to strike course-related

You also mentioned that incidental expenses

That's correct.

THE WITNESS:

Well, if I track this correct

and why I paused about this --

Esquire Deposition Services, LLC
[phone]

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page38 of 95

WALTER BYERS,

JULY 24, 2007
Page 38

2
3

THE WITNESS:
but "books" stayed in.

4
5

-- "supplies and" were deleted

MR. NAGY:

Yes, sir.

That's right.

BY MR. NAGY:

6

Q.

8

Q.

9

before.

I'm sorry.

I -- I -- I don't think I said books

If I did, I didn't mean to.

My understanding

10

of what you said, sir, is supplies were eliminated and

11

the incidental expenses were eliminated.

12

A.

That's correct.

13

Q.

But not the books?

14

A.

That's correct.

15

Q.

Okay.

Yes.

And I think I've got that right.

16

I'm going to show you what I've done here and you tell

17

me if I messed it up somehow.

18

(Exhibit No. 401 was marked for the record.)

19

MR. NAGY:

20

MR. GRAND:

21

a copy of 401, please.

That's No. 401.
If you wouldn't mind printing me

22

MR. NAGY:

Sure.

23

MR. GRAND:

24

THE WITNESS:

Thank you.
Okay.

Esquire Deposition Services, LLC
[phone]

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page39 of 95

WALTER BYERS,

JULY 24, 2007
Page 39

1

Q.

Does Exhibit 401, Mr. Byers, accurately reflect

2

the rule change that was adopted at the Economy

3

Convention?

4

A.

Correct.

5

MR. NAGY:

And I'm just going to take a

6

moment and print a copy here for David.

7

looking at your watch, sir.

8

THE WITNESS:

9

started.

10

And I see you

I clocked you when you

Do you know want to know what time you

started?

11

MR. NAGY:

12

THE WITNESS:

13

THE VIDEOGRAPHER:

14

9:16, I think.
Okay.
We have about 15 minutes

left on this tape.

15

THE WITNESS:

16

MR. NAGY:

Could we round it off at 9:15?

Sir, we can stop whenever you

17

want to stop.

Any time.

18

more question on this topic --

19

THE WITNESS:

20

MR. NAGY:

21

THE WITNESS:

In fact, I've got just a few

22
23

That's fine.

-- why don't we stop after that?
I want to ask what you want,

but...
MR. NAGY:

No.

Absolutely.

We're -- let me

24

Esquire Deposition Services, LLC
[phone]

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page40 of 95

WALTER BYERS,

JULY 24, 2007
Page 40

1

badgering you.

2

BY MR. NAGY:

3

Q.

I just wanted to keep track of the time.

Going back, sir, to Legislative Proposal No. 4.

4

Can you tell us, Mr. Byers, was Legislative Proposal No.

5

4 good for student athletes or bad for student athletes?

6

A.

Well, it depended on their circumstances.

I

7

mean -- and it depended on the academic attainment of

8

the individual athlete.

9

bad for them.

So full-need athletes, it was

I mean, all -- most of the big-time

10

athletes, football and basketball, were probably

11

full-need athletes.

12

The better students, we -- had high academic attainment,

So it took money away from them.

13

18
19

Q.

Well, let me try this, sir, did Legislative

Proposal No. 4 help anyone?

20

A.

Say it again.

21

Q.

Did it help any student athletes?

22

A.

Well, it didn't.

No, it did not.

It took away

23

money from all athletes.

Some of them may not have

24

needed it because they had other access to academic

25

scholarships.

Esquire Deposition Services, LLC
[phone]

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page42 of 95

WALTER BYERS,

JULY 24, 2007
Page 42

1
2
3

universities.
Q.

When you say "the universities," sir, are you

speaking of the NCAA members?

4
5

Q.

So in other words, would you agree that the

6

purpose of Legislative Proposal Number 4 was to save

7

money for the NCAA's members?

8

MR. GRAND:

9

THE WITNESS:

10

Asked answered.
For the NCAA member

institutions?

11

MR. NAGY:

12

THE WITNESS:

13

The answer is yes to that,

too.

14

Yes, sir.

BY MR. NAGY:

15
16

Q.

Was Legislative Proposal No. 4 necessary to

preserve or promote amateurism?

17

A.

No.

18

Q.

Was Legislative Proposal No. 4 necessary to

19
20
21
22
23

promote or preserve competitive equity?
A.

No.
MR. NAGY:

And I think, Mr. Byers, this

would be a good time to take a little break.
THE WITNESS:

Thank you sir.

Esquire Deposition Services, LLC
[phone]

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page47 of 95

WALTER BYERS,

JULY 24, 2007
Page 47

1

MR. NAGY:

2

THE VIDEOGRAPHER:

3

(Off the record.)

6

Q.

Let's go off the record.
Off the record at 10:32.

Before our little break, Mr. Byers, I was about

7

to read you the first of several reasons the NCAA has

8

given regarding its financial aid rules.

9

one, sir, is this:

( As read:)

And the first

The NCAA's financial

10

aid rules promote the creation and enhancement of

11

amateur college athletics as products or activities that

12

are distinct from professional in other amateur

13

athletics.

14

allow the creation of a product, amateur college

15

athletics, that would otherwise not exist and are

16

accordingly procompetitive.

17

The NCAA's financial aid rules accordingly

And my question for you, sir, is, do you believe

18

that the NCAA needs to restrict grants-in-aid so that

19

they do not cover incidental expenses in order for

20

amateur college athletics to exist?

21

A.

No.

Esquire Deposition Services, LLC
[phone]

602
701
NCAA MIL 5
& 7 (Dkt.
No. 166)

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page48 of 95

WALTER BYERS,

JULY 24, 2007
Page 48

1

the competition is among amateur student athletes.

2

Do you agree with that statement, sir?

3

A.

No.

4

Q.

Let me move on to the next one.

This one says,

5

(As read:)

6

among NCAA member institutions in the various sports in

11
12
13
14
15

They promote competitive balance between and

First of all sir, can you tell me, are you
familiar with this term "competitive balance"?
A.

Well, I've heard it used.

Yes.

I understand

what they're saying.
Q.

Can you tell me, sir, based on your three and a

16

half decades of experience as the NCAA's Executive

17

Director, what does competitive balance really mean?

18

A.

Well, it's a term that is used to the benefit of

19

the speaker or the individual that's -- it's an art form

20

that a person likes to use but has no relevancy

21

particularly.

22

that can be stretched in any direction you want to

23

justify a present circumstance.

24

NCAA is trying to defend.

25

Competitive balance is an elastic term

In this case, what the

And if you want to talk about competitive balance

Esquire Deposition Services, LLC
[phone]

602
701
NCAA MIL
5 & 7 (Dkt.
No. 166)

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page49 of 95

WALTER BYERS,

JULY 24, 2007
Page 49

1

in the major sports, which are men's football and men's

2

basketball, the competitive balance, the elimination of

3

these articles doesn't enhance competitive balance

4

particularly.

5

what I'm trying to get to is that, if you look at the

6

number of power teams in Division I Basketball and you

7

look at the number of power teams in Division I

8

football, the core group of institutions are basically

9

the same.

It -- again, I'm being repetitive but

And they can have March Madness and talk

10

about this upset and that, but you go and look at the

11

bracket and see what the by's, the ranked team in each

12

Bracket 1 or 2 and whatever they are, they almost always

13

get into the Final 16 and the Final 4.

14

basically the same group of institutions that are ending

15

up fighting for the title no matter how many the 64, the

16

68 that finally started -- that do start March Madness.

17

And that is

I mean -- and you talk about the football power

18

teams, it takes a top 12, 14, 15, they're all there; and

19

they're the ones that get into the big bowl games and

20

get into the playoffs.

21

and it defies any kind of reason to use those kind of

22

arguments that these rules and these $15 in or out

23

affect competitive balance because it's ridiculous.

24

It's unrelated to competitive balance.

So it's not -- it is not logical

End of speech.

Esquire Deposition Services, LLC
[phone]

602
701
NCAA MIL
5 & 7 (Dkt.
No. 166)

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page50 of 95

WALTER BYERS,

JULY 24, 2007
Page 50

10

Is competitive balance a legitimate reason for

11

the NCAA to prohibit its members from allowing

12

grants-in-aid or providing grants-in-aid that include

13

incidental expenses?

14
15
16

A.

No.

It's irrelevant.

It's not -- it's not --

it's not pertinent at all.
Q.

The next one, sir, says, (As read:)

The NCAA's

17

financial aid rules help to minimize or eliminate the

18

effect of boosters, agents, gamblers and other

19

professionalizing or improper influences on college

20

athletics.

21

clear and enforceable standard for athletics-based aid.

In particular, Bylaw 15.02.05 establishes a

22

Esquire Deposition Services, LLC
[phone]

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page51 of 95

WALTER BYERS,

JULY 24, 2007
Page 51

8
9

Q.

And finally, sir, is it says here, (As read:)

The NCAA's financial aid rules help to encourage student

10

athletes to experience college as both students and

11

athletes.

12

athletes a greater incentive to focus on and greater

13

likelihood to succeed in their education by giving them

14

a financial stake in that education.

15
16

In particular, Bylaw 15.02.5 gives student

Do you agree with that statement, sir?
A.

No.

17
18

MR. NAGY:

here for the court reporter.

19
20
21
22
23

Are we -- We are taking a moment

(Off the record.)
BY MR. NAGY:
Q.

Mr. Byers, I want to show you what's been marked

as Exhibit 356.
MR. NAGY:

Esquire Deposition Services, LLC
[phone]

602
701
NCAA
MIL 5 & 7
(Dkt. No.
166)

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page53 of 95

WALTER BYERS,

JULY 24, 2007
Page 53

1

MR. NAGY:

Well, actually I typed from it

2

the testimony of the -- of the 30(b)(6) witness.

3

is -- it is the testimony of the 30(b)(6) witness, he

4

adopted it at the end of it.

5

deposition, marked 356.

6

MR. GRAND:

7

MR. NAGY:

8
9

So it

And it was, at that

Got it.
That's the background, sir.

BY MR. NAGY:
Q.

12

So I want to go over this list with you and see

Do you agree, sir, that providing incidental

13

expenses to a student athlete in the form of a

14

grant-in-aid constitutes pay for play?

15

A.

Well, it doesn't constitute any more than the

16

grant-in-aid itself.

The grant-in-aid is basic a

17

one-year contract.

18

out earlier.

It used to be four years and they cut it

19

back to one.

And a one-year contract sets up the

20

one-year tryout, and the one-year tryout gets rid of all

21

of the players that aren't good enough to play and the

22

coach brings in a whole new group.

23

Division I Basketball.

24

Football.

25

that are good enough stay and the others are cut loose

It's on one year now which I brought

I'm talking about

I'm talking about Division IA

And that's the way it works.

The players

Esquire Deposition Services, LLC
[phone]

104a
602
701
NCAA MIL
5 & 7 (Dkt.
No. 166)

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page54 of 95

WALTER BYERS,

JULY 24, 2007
Page 54

4

104a
602
Q. Uh-huh.
701
NCAA MIL
A. So the contract, itself, is a contract for
5 & 7 (Dkt.
athletic performance. I believe that, it's in the book, No. 166)

5

and I hold that to be self-evident and true.

6

grant-in-aid, itself, is a contract for athletic

7

performance and when you tack -- when you tinker around

8

-- when you tinker around with, is it $15 a month, is it

9

in or out, it's an irrelevancy to the whole question of

1
2
3

10

after one year, and they go find another place to play.

So the

pay because one year is a pay contract period.

11

Q.

Let's move on to the second one, sir.

12

A.

Let's do that.

13

Q.

Well, let me clarify.

14

I want -- I want to

understand this.

15

Do you believe, then, that pay for play is not --

16

is or is not a legitimate reason for prohibiting

17

grants-in-aid that include incidental expenses?

18

A.

No, it's invalid.

19

Q.

Okay.

20

A.

Okay.

21

Q.

No. 2 simply says, (As read:)

22
23

It's an invalid reason.

Now, moving on to No. 2.

No. 2 --

Doesn't have the

support of the voters.
And I will tell you so that "the voters" meant

Esquire Deposition Services, LLC
[phone]

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page58 of 95

WALTER BYERS,

JULY 24, 2007
Page 58

1
2

pray tell?
Q.

What is the collegiate model?

The collegiate model was used, sir, by this

3

witness to mean that he didn't like saying "amateurism,"

4

he preferred "collegiate model" and it simply meant

5

students at -- student athletes who are at a college or

6

another NCAA member institution.

7

A.

It's too general.

8

Q.

Do you believe --

9

A.

It's not -- it's a period.

I'll just leave it

11

Q.

How about the second part?

Do you believe, sir,

12

that allowing student athletes to receive incidental

13

expenses as part of their grant-in-aid undermines the

14

principles of amateurism?

15

A.

No.

16

Q.

Let's move down to No. 4, sir.

This one says,

17

(As read:)

18

process and principles of the institution.

19

A.

Draws upon the recognized financial aid

The institution uses the U.S. Office of Education

20

formula for all incoming students.

Interposed over it

21

is the NCAA limits that are only related to athletes.

22

And they're not -- No. 4, they're not drawing upon the

23

financial aid process and principles of the institution

24

at all.

They're defending a defined limitation that's

Esquire Deposition Services, LLC
[phone]

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page61 of 95

WALTER BYERS,

JULY 24, 2007
Page 61

1
2
3

BY MR. NAGY:
Q.

I'm looking, sir, at Page 374.

What I did to try

to make this easier for you --

4

A.

Oh, you got tabs on it.

5

Q.

-- I tried to tab starting at the top and moving

6

down.

Okay.

7

This is 374.
MR. NAGY:

And for the record, Mr. Byers is

8

looking at Exhibit No 398, his book.

9

BY MR. NAGY:

10

Q.

You speak, sir, on this page in a section

11

entitled, "Free the Athletes" about a proposal you had

12

which you entitled, "The College Athletes Bill of

13

Rights."

14

enact and the President should sign comprehensive

15

College Athletes Bill of Rights.

16

suggestion for new government controls.

17

contrary, it is an argument that the Federal Government

18

should require deregulation of a monopoly business

And it says here, (As read:)

Congress should

That is not a
On the

602
701
802
NCAA MIL 5 & 7
(Dkt. No. 166)

23

My question for you, Mr. Byers, is, do you

24

believe, sir, that the NCAA is a monopoly business

25

operated by not-for-profit institutions contracting

Esquire Deposition Services, LLC
[phone]

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page62 of 95

WALTER BYERS,

JULY 24, 2007
Page 62

1

together to achieve maximum financial returns?

2

MR. GRAND:

Objection.

3

MR. NAGY:

4

THE WITNESS:

Foundation.

You can answer, sir.
My comment has to do with the

5

major league programs of college football and college

6

basketball.

7

Division I Basketball.

8

statement I made in the book that they operate a

9

monopoly business and as an exploitation of the young

10

13

I'm talking about Division IA Football and
Okay.

And I agree with a

athlete that are engaged in those programs.

I'm moving, now, just to the next page.

14

just move this over here.

15

talking about your bill of rights and the first proposal

16

you make is described here.

17

from 375 to 376.

18

You say, (As read:)

This is Page 375.

And I'll
You're

It's actually going to go

The bill of rights should

19

deal with five issues of freedom and welfare.

No. 1,

20

repeal the rule that establishes the NCAA as national

21

arbiter of the term, value, and conditions of an

22

athlete's, quote, scholarship, closed quote, and as

23

controller of the athlete's outside income during his or

24

her collegiate tenure.

25

policies in the name of amateurism and level of playing

Where as the NCAA defends its

Esquire Deposition Services, LLC
[phone]

602
701
802
NCAA MIL
5 & 7 (Dkt.
No. 166)

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page63 of 95

WALTER BYERS,

JULY 24, 2007
Page 63

1

fields, they actually are a device to divert the money

2

elsewhere.

3

Do you remember writing that, sir?

4

A.

Yes, sir.

5

Q.

And when you say "level playing fields," sir,

6

just to clarify, I understood you to mean to competitive

7

equity, competitive balance, that concept we talked

8

about today.

Is that, in fact, what you meant?

9

A.

Well, yeah.

10

Q.

It's the same concept?

11

A.

(Inaudible response.)

12

MR. NAGY:

13

THE WITNESS:

14

MR. NAGY:

15

For the record, was that a yes?
That's a yes.

Sorry.

She can't write down when

you shake your head.

16

THE WITNESS:

17

you?

18

Well, she -- you got it didn't

BY MR. NAGY:

19

Q.

And my next question, sir, is, this last

20

sentence, (As read:)

21

policies in the name of amateurism and level of playing

22

fields -- and going onto end there, sir.

23
24

Whereas the NCAA defends its

Does this sentence apply to the NCAA's
restrictions on financial aid or were you talking about
?

Esquire Deposition Services, LLC
[phone]

402
602
701
802
NCAA MIL 5
& 7 (Dkt.
No. 166)

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page67 of 95

WALTER BYERS,

JULY 24, 2007
Page 67

1

Q.

And do you believe, Mr. Byers, that the NCAA's

2

current restrictions on athletics-based financial aid,

3

in particular, the grant-in-aid law or grant-in-aid

4

bylaw we saw earlier today, the 15.02.5, violate the

5

federal antitrust laws?

6

MR. GRAND:

7

MR. NAGY:

8

THE WITNESS:

9

Objection.

Lack of foundation.

You can answer, sir.
Yes.

It's a cartel that's

restricting things which is a violation of the antitrust

14

602
701
one of the basic principles the NCAA's rules is supposed NCAA MIL
5 & 7 (Dkt.
to promote is the following: Quote, student
No. 166)

15

participation in intercollegiate athletics is an

16

advocation and student athletes should be protected from

17

exploitation by professional and commercial enterprises,

18

closed quote.

12
13

Q.

19
20

The NCAA's Constitution today, Mr. Byers, says

Do you believe, sir, that the NCAA's rules
promote that purpose?

21

A.

NCAA what?

22

Q.

The NCAA's rules.

23
24

Do you believe their rules

actually promote that purpose?
A.

No.

Esquire Deposition Services, LLC
[phone]

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page70 of 95

WALTER BYERS,

JULY 24, 2007
Page 70

18
19

Q.

Were you aware that the NCAA currently limits

financial aids to no more than one academic year.

20

A.

Yes.

21

Q.

Can you tell us, Mr. Byers, whether the NCAA has

22

always had a rule limiting financial aid awards to

23

student athletes to a single academic year?

24

A.

No, they have not.

Esquire Deposition Services, LLC
[phone]

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page73 of 95

WALTER BYERS,

JULY 24, 2007
Page 73

1

in 30 or 50 athletes in football and, you know, take in

2

5 or 6 basketball, you have one-year to try them out.

3

If they don't make it, you don't renew the aid.

4

out and get more and thin them out and get more and thin

5

them out.

7
8
9

Q.

You go

So the one-year scholarship legalized and

Prior to Legislative Proposal No. 39, sir, did

student athletes obtain scholarships for four years?
A.

Oh, yeah.

Yes.

They all did.

I mean, there was

10

-- okay, historic.

11

out was between Oklahoma and Texas.

12

had four-year awards, Oklahoma gave one.

13

between those two institutions is red hot and still is

14

today.

15

they -- period.

16
17

Q.

The historic dual that was fought
Between -- Texas
And recruiting

So yes, there was one-year and four year and
I'll stop.

And so this rule, sir, eliminated that type of

competition between NCAA members?

18

A.

True.

19

Q.

Would you say, Mr. Byers, that Legislative

20

Proposal 39 was good for student athletes or bad or

21

student athletes.

22

MR. GRAND:

23

MR. NAGY:

24

THE WITNESS:

25

Objection.

Vague.

You can answer, sir.
Well, it was a penalty against

student athletes because there would be a process in

Esquire Deposition Services, LLC
[phone]

701

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page74 of 95

WALTER BYERS,

JULY 24, 2007
Page 74

1

recruiting to judge the talent of the player and how

2

long you'd want to give him the grant-in-aid.

3

he's a super, super prospect, you're going to give him

4

four years.

5

play games, if you want, and take gamble between the one

6

and four years.

7

of that measure of his skill level and brought down to,

8

they're all one-year, buddy.

9

another one.

10

rule.

11

If he's mediocre, one year.

And if

Or you could

So the athlete was immediately deprived

You perform you'll get

If you don't, you're out.

And that's the

BY MR. NAGY:

12
13

Q.

That's the practical rule that was in effect.

Was Legislative Proposal No. 39 necessary to

promote amateurism?

14

A.

No, it was not.

15

Q.

Was Legislative Proposal No. 39 necessary to

16

promote competitive balance?

17

A.

No.

18

Q.

Do you believe, Mr. Buyers, that there was any

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legitimate basis for the NCAA's decision to adopt

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Legislative Proposal No. 39?

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A.

Well, the only legitimate basis was to eliminate

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the cheating going on between those guys that were

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trying to award four years or some mix of that and those

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that just wanted to have one-year and none.

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one-year people won and took control of the situation.

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And the

701

Case4:09-cv-01967-CW Document352-1 Filed09/07/11 Page75 of 95

WALTER BYERS,

JULY 24, 2007
Page 75

1

Q.

I'm a little -- I don't know about that.

2

you -- I'm sorry for everyone else sitting here.

3

I want

you to bore me a little bit with those details.

4
5
6

I want

When you say "eliminating the cheating," what
cheating, sir, are you talking about?
A.

Well, it was in the book.

They would leave.

If

7

you're recruiting an athlete between Oklahoma and Texas

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and he's a superstar, you're going to -- and if you're

9

from Oklahoma, you're going to tell that guy, you've got

10

a deal for the whole career.

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that.

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But they do whatever they -- necessary to guarantee that

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guy whatever way it was, that you've got the deal and if

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you get hurt, don't worry about it, you've got the full

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four years, even though, the rule for Oklahoma was only

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one-year at a time.

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18
19
20
21

Q.

The rule says he can't do

Oklahoma's rules says you can only do one-year.

I see.

So the cheating would have been on rules

that the institution, itself, had; is that right?
A.

That's correct.

The institution subscribed to

the rule, the coach didn't.
Q.

Was there -- actually, I think you've addressed

22

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