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).

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EXHIBIT E HIGHLY CONFIDENTIAL OUTSIDE ATTORNEYS' EYES ONLY Page 1 1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 2 Case No. 4:09-cv-1967 CW 3 ----------------------------------x 4 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 5 LITIGATION 6 ----------------------------------x December 12, 2012 7 9:03 a.m. 8 9 - HIGHLY CONFIDENTIAL - OUTSIDE ATTORNEYS' EYES ONLY - 10 11 Videotaped deposition of BO KERIN, held at the 12 offices of Munsch, Hardt, Kopf & Harr, PC, 401 Congress 13 Avenue, Suite 3050, Austin, Texas, pursuant to Notice 14 before Steven Stogel, Texas Certified Shorthand Reporter 15 No. 6174 16 17 18 19 20 21 22 23 24 25 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL OUTSIDE ATTORNEYS' EYES ONLY Page 5 1 plaintiffs. 2 3 MR. WIERENGA: Bob Wierenga for the NCAA and the witness. 4 MR. SLAUGHTER: Jamie Slaughter for EA. 5 MR. HENN: 6 THE VIDEOGRAPHER: Charlie Henn for CLC. At this time our court 7 reporter, Steven Stogel, representing Veritext, will 8 swear in the witness, and we can proceed. 9 10 13 BO KERIN, having been first duly sworn, testified as follows: Q. 212-279-9424 Good morning, Mr. Kerin. VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL OUTSIDE ATTORNEYS' EYES ONLY Page 6 7 8 Q. Do you recognize what I just handed you as a copy of your public LinkedIn profile? 9 A. Yes, I do. 10 Q. And do you see there's a section entitled "Bo 11 Kerin's Experience"? 12 A. Yes, I do. 13 Q. Did you draft that section? 14 A. I did. 15 Q. And is this an accurate description of the 16 17 18 19 20 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 21 23 Q. In looking at the bottom of the page, do you 24 see where it says "Assistant/Associate Director of 25 Membership Services"? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL OUTSIDE ATTORNEYS' EYES ONLY Page 7 1 A. Yes. 2 Q. So it sounds like you had two positions during 3 that period of November 2001 to 2007? 4 A. That's correct. 5 Q. And what were -- what were your 6 responsibilities as an assistant director for membership 7 services? 8 9 A. It was a lot of phone work, answering phone calls from the general public, from the membership, 10 assisting them in understanding and correctly applying 11 NCAA rules. 12 waivers such as initial eligibility, continuing 13 eligibility, worked with athletic certification team for 14 Division 1, conducted compliance reviews. 15 supervisory responsibilities associated with that 16 position, which was different from the associate 17 athletics director position. 18 associate director, I tended to focus more in certain 19 areas, whereas an assistant director, you could be 20 working on ten different project teams with not a lot of 21 focus. 22 23 24 25 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. 212-279-9424 I continued to do work with VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL OUTSIDE ATTORNEYS' EYES ONLY Page 8 1 Division 2 compliance reviews, but those were the main 2 focuses, working as liaison to several committees. 3 then internally working and training new staff members, 4 continuing education of the existing staff. 5 6 7 Q. And And what were the committees that you liaisoned with? A. I worked on the former academic eligibility 8 compliance cabinet recruiting -- Division 1 recruiting 9 subcommittee, Division 1 championships, competition 10 cabinet, events -- I can't remember the exact name of 11 the -- of the committee, but I worked with certified 12 events, certified contests, and also with the Division 1 13 membership committee. 14 Q. Any others that you can remember? 15 A. No. I probably had some before that that I 16 don't remember, but those were the main ones that I 17 worked with for a good amount of time. 18 Q. In looking at that heading, do you see where 19 it says, "Develop legislation designed to advance one or 20 more of the Association's basic principles for the 21 conduct of intercollegiate athletics"? 22 A. Uh-huh. 23 Q. What legislation were you referring to there? 24 A. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL OUTSIDE ATTORNEYS' EYES ONLY Page 10 1 2 discussions and things -- things of that nature. Q. And so if you recall, which -- what 3 legislation actually made it into a proposal form as 4 you -- 5 6 A. I mean, I couldn't even begin to -- 7 Q. 8 402 Oh, there were numerous -- numerous ones. A. 9 Q. Are we talking dozens? Continuing looking at this paragraph, do you 10 see where you state, "and understand the legal and other 11 implications of NCAA rules"? 12 phrase. 13 the legal and other implications of NCAA rules." And I'll quote the full "Apply and interpret legislation and understand 14 Do you see that? 15 A. Yes. 16 Q. What did you mean by "understand the legal 17 18 implications of NCAA rules"? A. Well, I think anytime as a responsible 19 employee you try to get the big picture of how things 20 bubble up, and although I'm not an attorney, we work 21 with -- you know, we had several attorneys -- or 22 individuals with law degrees on staff, and so you try to 23 get an overall understanding of what the effect of this 24 rule might be, identify when it would be appropriate to 25 seek legal counsel's advice on a particular issue. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL OUTSIDE ATTORNEYS' EYES ONLY Page 101 1 training.ppt." 2 A. Uh-huh. 3 Q. Is it your understanding that "ppt" means 6 Q. Okay. 7 Now, looking at Exhibit 730, is this the PowerPoint that you had attached to that email? 8 A. I can't be overly sure that it is. 9 Q. Okay. 10 MS. STEINER: I'll note for the record 11 that this email is Bates stamped NCAAPROD00474881 12 through 925, which is the next sequential numbers to 13 Exhibit 729. 15 Q. 16 17 Do you know if you were the author of this PowerPoint deck? A. I don't know. These -- this appears to be 18 part of a staff training program for new staff members, 19 and these PowerPoints get -- they reside in a folder on 20 the server, and they become updated over time by 21 numerous staff members. 22 23 Q. Okay. As part of your job responsibilities, you did new staff training? 24 A. Yes. 25 Q. And is this the type of PowerPoint you would 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL OUTSIDE ATTORNEYS' EYES ONLY Page 102 1 use to train staff? 2 A. Yes. 3 Q. When you did staff training using PowerPoints, 4 did anyone assist you? 5 A. In some cases, yes. 6 Q. What are those instances you're thinking of 7 where you had somebody else assist you in training? 8 A. I don't recall specifically. 9 Q. Did Scott Bearby ever co-present with you in 10 terms of staff training? 11 12 13 14 15 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? 16 17 Object to the form. MR. WIERENGA: A. Same objection. I definitely recall, although I don't recall 18 when, Scott -- it would not be -- that he would have 19 come to a staff meeting to present on various issues. 20 What those issues were, I don't recall, and I don't 21 recall that he was part of any formal training. 22 wasn't a Scott Bearby session. 23 BY MS. STEINER: 24 There Q. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL OUTSIDE ATTORNEYS' EYES ONLY Page 105 402 2 3 10 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 11 opinion on it. 12 not my area of expertise. 13 whether I agree with that or not. 15 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 16 2007, you had no opinion about whether a student-athlete 17 has the right of publicity? 18 19 A. I never had an occasion to form one. They either do or they don't. 20 Q. You never thought about it? 21 A. No. 22 Q. You never cared what the answer was? 23 A. I cared -- 25 A. I cared to the effect that if it impacted my 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL OUTSIDE ATTORNEYS' EYES ONLY Page 106 402 1 job, I would need to know what that was. 2 rarely did, so I did -- I never -- I never gave it -- 3 gave it much thought. 4 BY MS. STEINER: 5 6 Q. At any time when you were at the NCAA national office, did you receive any antitrust training? 7 8 9 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 10 sessions, you know, throughout my time there -- I don't 11 specifically recall antitrust training. 12 there wasn't one. 13 BY MS. STEINER: 14 Q. It doesn't mean Do you recall having any training with 15 relationship to how the actual laws of this country 16 apply to the laws that the NCAA had instituted through 17 their rules and interpretations and so on? 18 19 20 MR. WIERENGA: foundation. A. No, I don't -- I don't recall. 21 22 23 Object to the form, (Exhibit No. 731 marked) BY MS. STEINER: Q. 212-279-9424 You've been given a document marked VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL OUTSIDE ATTORNEYS' EYES ONLY Page 131 1 foundation. 2 3 THE WITNESS: 6 Repeat the question. 4 5 I'm sorry. (The requested portion was read by the reporter) A. I think it would have been irresponsible to 7 not be sensitive at all times to the position of our 8 corporate partners. 9 policy, I'm not aware of anything of that nature, but as 10 with any other partner, you would be irresponsible as an 13 14 And so -- I mean, as a matter of (Exhibit No. 735 marked) BY MS. STEINER: 15 Q. I'm showing you what's been marked as 16 Exhibit 735. It's Bates stamped NCAAPROD00107857 17 through 859. Do you see that? 18 Can you identify for the record what this 19 document is? 20 A. Yes. This was a form that CBA would fill out 21 and submit to membership services to request a response 22 to an interpretive issue. 23 24 25 Q. response. A. 212-279-9424 On Page 2, it seems that you wrote the Is that correct? Let's see. Yes. VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL OUTSIDE ATTORNEYS' EYES ONLY Page 132 1 2 3 4 5 6 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. 7 A. Yes. 8 Q. Okay. Correct? 9 10 And you also write, "Obviously, 2K would need permission from all the former student-athletes, but we'll leave that to them." 11 Do you see that? 12 A. I do. 13 Q. Why was it your opinion that 2K needed 14 15 permission from all the former student-athletes? A. I mean, NCAA rules outline what applies to 16 student-athletes with remaining eligibility. 17 that, whatever federal, local, and state laws apply to 18 publicity, that's on the student-athlete to do whatever 19 they need to do. 20 example -- an on-campus example. 21 Outside of I mean, it's -- I'll give you an If an outside entity uses the picture of 22 a student-athlete to promote that they're televising the 23 game, the institution is required -- and, of course, 24 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430

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