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.
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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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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
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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
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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
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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
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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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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.
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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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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
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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 --
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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.
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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
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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.
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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.
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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.
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NCAA MIL 5
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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
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NCAA MIL
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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.
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NCAA MIL
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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
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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:
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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
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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
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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
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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
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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
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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
?
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701
802
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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.
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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.
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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
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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.
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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
19
legitimate basis for the NCAA's decision to adopt
20
Legislative Proposal No. 39?
21
A.
Well, the only legitimate basis was to eliminate
22
the cheating going on between those guys that were
23
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.
25
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
8
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.
12
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
15
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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