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 E

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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Case No. 4:09-cv-1967 CW

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The NCAA objects to plaintiffs' affirmative
designations of Mr. Kerin's testimony on the
grounds that plaintiffs first disclosed these
designations on June 18, 2014, weeks after
the disclosure deadline of April 30, 2014.

IN RE NCAA STUDENT-ATHLETE
NAME & LIKENESS LICENSING

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LITIGATION

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December 12, 2012

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9:03 a.m.

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- HIGHLY CONFIDENTIAL - OUTSIDE ATTORNEYS' EYES ONLY -

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Videotaped deposition of BO KERIN, held at the

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offices of Munsch, Hardt, Kopf & Harr, PC, 401 Congress

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Avenue, Suite 3050, Austin, Texas, pursuant to Notice

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before Steven Stogel, Texas Certified Shorthand Reporter

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No. 6174

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plaintiffs.

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MR. WIERENGA:

Bob Wierenga for the NCAA

and the witness.

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MR. SLAUGHTER:

Jamie Slaughter for EA.

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MR. HENN:

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THE VIDEOGRAPHER:

Charlie Henn for CLC.
At this time our court

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reporter, Steven Stogel, representing Veritext, will

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swear in the witness, and we can proceed.

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BO KERIN,
having been first duly sworn, testified as follows:

Q.

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Good morning, Mr. Kerin.

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Q.

Do you recognize what I just handed you as a

copy of your public LinkedIn profile?

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A.

Yes, I do.

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Q.

And do you see there's a section entitled "Bo

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Kerin's Experience"?

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A.

Yes, I do.

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Q.

Did you draft that section?

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A.

I did.

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Q.

And is this an accurate description of the

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positions you've held and the dates indicated?
A.

Fairly accurate, yes.

Abbreviated, but

accurate.
Q.

Okay.

And is this an accurate description of

the responsibilities and experiences you had in those

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Q.

In looking at the bottom of the page, do you

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see where it says "Assistant/Associate Director of

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Membership Services"?

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A.

Yes.

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Q.

So it sounds like you had two positions during

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that period of November 2001 to 2007?

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A.

That's correct.

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Q.

And what were -- what were your

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responsibilities as an assistant director for membership

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services?

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A.

It was a lot of phone work, answering phone

calls from the general public, from the membership,

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assisting them in understanding and correctly applying

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NCAA rules.

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waivers such as initial eligibility, continuing

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eligibility, worked with athletic certification team for

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Division 1, conducted compliance reviews.

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supervisory responsibilities associated with that

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position, which was different from the associate

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athletics director position.

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associate director, I tended to focus more in certain

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areas, whereas an assistant director, you could be

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working on ten different project teams with not a lot of

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focus.

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Q.

I did a lot of waiver work for academic

There was no

So being promoted to

What were the areas that you then focused on

as associate director?
A.

Primarily in interpretations, recruiting

Division 1 membership.

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I continued to do work with

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Division 2 compliance reviews, but those were the main

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focuses, working as liaison to several committees.

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then internally working and training new staff members,

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continuing education of the existing staff.

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Q.

And

And what were the committees that you

liaisoned with?
A.

I worked on the former academic eligibility

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compliance cabinet recruiting -- Division 1 recruiting

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subcommittee, Division 1 championships, competition

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cabinet, events -- I can't remember the exact name of

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the -- of the committee, but I worked with certified

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events, certified contests, and also with the Division 1

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membership committee.

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Q.

Any others that you can remember?

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A.

No.

I probably had some before that that I

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don't remember, but those were the main ones that I

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worked with for a good amount of time.

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Q.

In looking at that heading, do you see where

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it says, "Develop legislation designed to advance one or

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more of the Association's basic principles for the

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conduct of intercollegiate athletics"?

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A.

Uh-huh.

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Q.

What legislation were you referring to there?

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A.

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discussions and things -- things of that nature.
Q.

And so if you recall, which -- what

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legislation actually made it into a proposal form as

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you --

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A.

I

mean, I couldn't even begin to --

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Q.

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Oh, there were numerous -- numerous ones.

A.

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Q.

Are we talking dozens?

Continuing looking at this paragraph, do you

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see where you state, "and understand the legal and other

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implications of NCAA rules"?

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phrase.

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the legal and other implications of NCAA rules."

And I'll quote the full

"Apply and interpret legislation and understand

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Do you see that?

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A.

Yes.

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Q.

What did you mean by "understand the legal

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implications of NCAA rules"?
A.

Well, I think anytime as a responsible

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employee you try to get the big picture of how things

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bubble up, and although I'm not an attorney, we work

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with -- you know, we had several attorneys -- or

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individuals with law degrees on staff, and so you try to

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get an overall understanding of what the effect of this

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rule might be, identify when it would be appropriate to

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seek legal counsel's advice on a particular issue.

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training.ppt."

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A.

Uh-huh.

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Q.

Is it your understanding that "ppt" means

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Q.

Okay.

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Now, looking at Exhibit 730, is this

the PowerPoint that you had attached to that email?

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A.

I can't be overly sure that it is.

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Q.

Okay.

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MS. STEINER:

I'll note for the record

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that this email is Bates stamped NCAAPROD00474881

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through 925, which is the next sequential numbers to

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Exhibit 729.

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Q.

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Do you know if you were the author of this

PowerPoint deck?
A.

I don't know.

These -- this appears to be

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part of a staff training program for new staff members,

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and these PowerPoints get -- they reside in a folder on

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the server, and they become updated over time by

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numerous staff members.

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Q.

Okay.

As part of your job responsibilities,

you did new staff training?

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A.

Yes.

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Q.

And is this the type of PowerPoint you would

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use to train staff?

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A.

Yes.

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Q.

When you did staff training using PowerPoints,

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did anyone assist you?

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A.

In some cases, yes.

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Q.

What are those instances you're thinking of

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where you had somebody else assist you in training?

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A.

I don't recall specifically.

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Q.

Did Scott Bearby ever co-present with you in

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terms of staff training?

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MR. WIERENGA:
A.

I don't recall.

It would not be likely.

BY MS. STEINER:
Q.

Do you -- do you recall any in-house NCAA

counsel assisting you in staff training?

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Object to the form.

MR. WIERENGA:
A.

Same objection.

I definitely recall, although I don't recall

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when, Scott -- it would not be -- that he would have

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come to a staff meeting to present on various issues.

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What those issues were, I don't recall, and I don't

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recall that he was part of any formal training.

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wasn't a Scott Bearby session.

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BY MS. STEINER:

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There

Q.

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Q.

Okay.

Do you agree with the statement that

the student-athlete has the right of publicity?

A.

I don't -- I just -- I don't really have an

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opinion on it.

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not my area of expertise.

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whether I agree with that or not.

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Q.

I mean, that's a legal issue, and that's
I've never thought about

During your time at the NCAA from 2001 to

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2007, you had no opinion about whether a student-athlete

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has the right of publicity?

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A.

I never had an occasion to form one.

They

either do or they don't.

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Q.

You never thought about it?

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A.

No.

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Q.

You never cared what the answer was?

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A.

I cared --

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A.

I cared to the effect that if it impacted my

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job, I would need to know what that was.

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rarely did, so I did -- I never -- I never gave it --

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gave it much thought.

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BY MS. STEINER:

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Q.

At any time when you were at the NCAA national

office, did you receive any antitrust training?

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But it very

MR. WIERENGA:

You can answer this

question "yes" or "no" or "I don't know."
A.

I -- I mean, we -- we had so many training

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sessions, you know, throughout my time there -- I don't

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specifically recall antitrust training.

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there wasn't one.

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BY MS. STEINER:

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Q.

It doesn't mean

Do you recall having any training with

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relationship to how the actual laws of this country

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apply to the laws that the NCAA had instituted through

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their rules and interpretations and so on?

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MR. WIERENGA:
foundation.
A.

No, I don't -- I don't recall.

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Object to the form,

(Exhibit No. 731 marked)
BY MS. STEINER:
Q.

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You've been given a document marked

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foundation.

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THE WITNESS:

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Repeat the

question.

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I'm sorry.

(The requested portion was read by the
reporter)
A.

I think it would have been irresponsible to

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not be sensitive at all times to the position of our

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corporate partners.

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policy, I'm not aware of anything of that nature, but as

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with any other partner, you would be irresponsible as an

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And so -- I mean, as a matter of

(Exhibit No. 735 marked)
BY MS. STEINER:

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Q.

I'm showing you what's been marked as

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Exhibit 735.

It's Bates stamped NCAAPROD00107857

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through 859.

Do you see that?

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Can you identify for the record what this

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document is?

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A.

Yes.

This was a form that CBA would fill out

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and submit to membership services to request a response

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to an interpretive issue.

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Q.
response.
A.

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On Page 2, it seems that you wrote the
Is that correct?
Let's see.

Yes.

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Q.

Why is it that this would have been routed to

A.

I was one of the ILT contacts for the CBA

you?

group.
Q.

Okay.

And you write that this particular

request is permissible.

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A.

Yes.

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Q.

Okay.

Correct?

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And you also write, "Obviously, 2K

would need permission from all the former
student-athletes, but we'll leave that to them."

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Do you see that?

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A.

I do.

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Q.

Why was it your opinion that 2K needed

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permission from all the former student-athletes?
A.

I mean, NCAA rules outline what applies to

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student-athletes with remaining eligibility.

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that, whatever federal, local, and state laws apply to

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publicity, that's on the student-athlete to do whatever

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they need to do.

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example -- an on-campus example.

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Outside of

I mean, it's -- I'll give you an

If an outside entity uses the picture of

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a student-athlete to promote that they're televising the

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game, the institution is required -- and, of course,

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