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 F

Page 1
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UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3
4
5
6

IN RE NCAA STUDENT-ATHLETE

) CASE NO.

7

NAME & LIKENESS LICENSING

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

8

LITIGATION

)

9
10
11
12
13

The videotaped deposition upon oral

14

examination of WALLACE RENFRO, a witness produced

15

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

16

Notary Public in and for the County of Hendricks,

17

State of Indiana, taken on behalf of the

18

Plaintiffs, at the offices of Faegre Baker &

19

Daniels, 300 North Meridian Street, 27th Floor,

20

Indianapolis, Marion County, Indiana, on the 26th

21

day of June, 2012, commencing at 8:10 a.m.,

22

pursuant to the Federal Rules of Civil Procedure

23

with written notice as to time and place thereof.

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25

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Please state your full name for the record.

6

A

Wallace I. Renfro.

7

Q

And do you sometimes go by the nickname Wally?

8

A

I do.

9

Q

Do you have any other nicknames?

10

A

No.

11

Q

How old are you?

12

A

I am 67 years old.

13

Q

And what is your educational background?

14

A

I have a Bachelor of Arts degree from Missouri

15

State University.

16

Q

What was your major at Missouri State?

17

A

English literature and American history.

18

Q

Do you have any graduate degrees, sir?

19

A

I do not have any graduate degrees.

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objections, but these objections don't excuse

2

you from answering my question.

3

Do you understand that?

4

A

Yes, I do.

5

Q

And if you need to take a break at any point,

6

just let me know.

If we're in the middle of a

7

question, I'd just ask that you finish your

8

answer, but we can take a break at any time

9

today.

10

A

Very good.

11

Q

Oh, and whenever you get up, please remember to

12

take off your microphone.

13

We're all tethered

here.

14

A

I -- I will try to remember.

15

Q

We'll try to remind you as well.

16

Are you taking any medication today that

17

might prevent you from understanding my

18

questions or answering them?

19

A

No.

Q

Are you currently employed?

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A

I am.

2

Q

By whom?

3

A

By the National Collegiate Athletic Association.

4

Q

And what is your title?

5

A

My title is vice president and chief policy

6
7

advisor.
Q

I work in the office of the president.

And I believe I've seen reference to you as

8

chief policy officer as well.

9

Is that your

title?

10

A

No, it is not.

11

Q

Has that ever been your title?

12

A

16

Q

For how long have you worked for the NCAA?

17

A

I'm in my 40th year.

18

Q

Congratulations.

19

A

Thank you.

20

Q

Does that make you the longest tenured employee

21
22

at the NCAA?
A

23

It makes me the second longest, I believe.

I am

not the longest.

24

Q

Who is the longest tenured employee at the NCAA?

25

A

David Berst.

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Q

have you worked with or for

5

each of the NCAA's executive directors or

6

presidents?

9

A

Yes, I have.

10

There was a brief period of time, I should

11

note, when I was not employed by the NCAA, from

12

about the last day of June of 2002 until the

13

first day of January 2003, when I left the

14

employment of the association.

15

asked to come back and work with the new

16

president.

17

Q

18

Okay.

And we can address that.

And then was

I'd like to ask

you questions about the entire chronology here.

19

A

Fine.

20

Q

How many positions have you held during your

21

40-year tenure at the NCAA?

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chief policy advisor.

2

That's pretty close.

3

I haven't tried to do

that in a long time.

4
5

And let's talk for a moment about the break

6
7

in 2002 to 2003.
A

Did you retire?

Because I had completed more than 20 years, the

8

term of art is -- is "retirement."

I left to

9

enter into a -- a private business in media

10

training and messaging and hopefully for clients

11

in higher education.

12

Q

And what prompted you to return to the NCAA?

13

A

I was prompted to return by a request from then

14

incoming NCAA President Myles Brand who asked if

15

I would come back and serve in the role as

16

senior communication advisor to him.

17

Q

And looking at your professional history, is

18

your expertise in public relations, messaging,

19

and communications?

21

A

My expertise is -- is generally in terms of

22

public relations.

23

expertise in messaging.

24

it's -- it's in public relations.

25

Q

I'm not sure there is an
Generally speaking,

And what are your current responsibilities?

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A

I work in the office of the president.

I give

2

advice and counsel to the president, to the

3

chief operating officer, and to others with

4

regard to policy considerations that might be

5

developed or might be considered by the

6

membership and give thought and sometimes

7

writing to such policy considerations.

8

So generally speaking, it is a -- it's a --

9

it's a role of a counselor, an advisor.

I have

10

no managerial responsibilities.

11

not involved in the -- either the formulation,

12

the process of debate and discussion, and

13

certainly don't have a vote in any legislation,

14

nor do I have any role in the interpretation of

15

that legislation.

16

have no role in any legal considerations

17

involving the association or intercollegiate

18

athletics.

19

Q

I'm certainly

I'm not an attorney, so I

You mentioned that you are not involved in the

20

process of debate and discussion around

21

legislation.

22

not discuss legislation with anyone at the NCAA?

23

MR. WIERENGA:

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25

I take that to mean that you do

Object -- objection to the

extent -Q

Is that correct?

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MR. WIERENGA:

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testimony.

3
4

-- that it misstates the

Go ahead.
A

The debate and discussion of legislation is done

5

at the membership level, because it is at the

6

membership level that those decisions are made.

7

The staff may be involved in discussions of

8

proposed or potential legislation, but because

9

the NCAA staff officed in Indianapolis has no

10

vote, it is -- it is more of an intellectual

11

discussion.

12

Q

13

And when you say "staff" there, you're referring
to NCAA staff?

14

A

I am.

15

Q

You mentioned among your responsibilities

16

providing counsel.

17

counsel?

18

A

To whom do you provide

To the president, to the chief operating

19

officer, to other vice presidents, or to other

20

staff on request regarding specific issues.

21

Q

And who is the current president of the NCAA?

22

A

Dr. Mark Emmert.

23

Q

And who is the current chief operating officer?

24

A

James Isch.

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Q

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President Emmert?
A

7
8

How frequently do you communicate with

Weekly.

Sometimes more often.

Occasionally

less often.
Q

9

And how frequently do you communicate with
Mr. Isch?

10

A

Probably daily.

11

Q

Do your responsibilities include anything

12

related to video games?

13

A

No.

14

Q

Do you in your current position draft any

15

written materials?

16

MR. WIERENGA:

Object to the form.

17

Q

I --

18

A

Could you be more specific?

19

Q

I can.

Do you in your current position draft

20

any written materials at the direction of

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President Emmert or Mr. Isch?

22

MR. WIERENGA:

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Q

Can you provide me with examples of your --

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the -- the type of written work product that you

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work on at the NCAA?

10

MR. WIERENGA:

11

Go ahead.

12

A

Object to the form.

I find as a lifelong writer that one of the

13

easiest ways for me to work through a thought

14

process regarding issues is to write.

15

way in which I can argue with myself and present

16

a rational argument to others for how an issue

17

might be considered from various perspectives.

18

It's the

So very often the kind of writing I do

19

is -- is an examination of arguments related to

20

a -- a specific issue.

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Q

2
3

Have you ever had any contact with
representatives from CLC?

A

4

I have from time to time at various NCAA
functions that were both attended.

5

Q

Who have you had contact with from CLC?

6

A

With -- with Bill Battle and with his son, Pat

7
8

Battle.
Q

9
10

What's your understanding of the term
"collegiate model"?

A

The collegiate model is a way in which American

11

higher education differentiates the

12

participation in athletics by its students from

13

other models, most prominently from a

14

professional model.

15

characterized by two very distinct pieces.

16

is that those who are participants are students,

17

and that intercollegiate athletics conduct is

18

embedded in the values of higher education

19

itself right.

20

Q

The collegiate model is
One

What do you mean when you say "intercollegiate

21

athletics conduct is embedded in the values of

22

higher education"?

23

A

Well, American higher education is somewhat

24

different from education elsewhere in the world,

25

in that most colleges and universities are

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comprehensive in nature.

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access to a variety of -- of disciplines.

3

those disciplines are subsidized and often

4

cross-subsidized by -- by other disciplines

5

within the -- the university, within the

6

academy.

7

They provide a -- give
And

That same approach is used with regard to

8

intercollegiate athletics.

There is educational

9

value in the conduct of -- of intercollegiate

10

athletics.

That, in fact, is the justification

11

for athletics as part of the higher education

12

model.

13

number of individuals, the number of students

14

who can be involved in -- in intercollegiate

15

athletics.

And so the desire is to maximize the

16

To do that, institutions sponsor sports

17

across a broad range for both men and women.

18

Some of those sports have the capacity for

19

generating more interest and, therefore, more

20

resources than others, and there's a

21

cross-subsidization relationship between and

22

among those sports, very similar to the way in

23

which it's done elsewhere in higher education.

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MR. WIERENGA:
Q

-- to your knowledge?

3

MR. WIERENGA:

4

Go ahead.
A

7
8

I'm unclear by what you mean by "who is
responsible?"

Q

Did someone coin the term "collegiate model"?

9
10

Object to the form,

foundation.

5
6

Object --

MR. WIERENGA:
A

Same objections.

In my experience, the -- the first time that I

11

became aware of that term of art was with Myles

12

Brand.

But I don't know that that did not

15

Q

What does the term "amateurism" mean to you?

16

A

Amateurism is a -- is a definition of the

17

relationship between those who participate and

18

the institution that sponsors intercollegiate

19

athletics.

20

there are certain educational, social, athletic

21

benefits to be derived from that participation.

22

And that those who participate, that is to say,

23

the students choose, make a choice to

24

participate in this model, and that sets those

25

individuals apart from athletes who participate

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It is one that understands that

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in, for example, the professional model.
Q

3

I'm trying to understand, how does the
collegiate model differ from amateurism?

4

A

Well, the --

8

A

The collegiate model, in fact, doesn't differ

9

from amateurism.

It embraces amateurism,

10

because it describes this relationship between

11

those who participate and the institution that

12

sponsors the -- the sport.

13

relationship is one of being a student.

14

And that -- that

Those who participate in intercollegiate

15

athletics are not employees of the institution,

16

and participating in athletics is -- is not

17

their job.

18

the -- the understanding, the definition within

19

higher education in America of -- of amateurism.

20

That's the -- that's -- so that's

That concept is certainly different than

21

the notion of amateurism as it -- as it migrated

22

to the United States in the -- in the 19th

23

century.

24

practiced on the European continent was more a

25

class distinction and set apart those who could

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The notion of amateurism as it was

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afford to participate, who could pay all their

2

expenses, who did not require any sort of

3

financial resource- -- resources to -- to

4

participate from those who could not.

5

and, in fact, it was -- it was a -- it was a way

6

for -- for the more wealthy to participate only

7

with the wealthy.

8
9

And --

The American culture was considerably more
egalitarian, and that concept simply didn't work

10

in America.

11

that there is educational value to the

12

participation in athletics is -- is what sets

13

the -- the American and the collegiate model in

14

America apart from other models around the

15

world.

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But it -- but it -- but the notion

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But the student-athletes do not.

2

And -- and the notion of amateurism is

3

confined to the student-athlete.

4

of acceptable professionalism applies to all

5

others.

6

exactly the way intercollegiate athletics began,

7

again, in the mid 19th century on American

8

campuses.

9

everything else along the way has -- has largely

10
11

And the notion

That has always been the case.

That is

And -- and -- and, you know,

been a matter of scale.
Q

You've given me a nice segue into a document

12

that I'm just about to show you.

13

do, are professional athletes victims of

21

Q

But before I

I'm handing you what's been marked Exhibit 418.

22

And I can represent to you that it's an internet

23

download of an article from the Chronicle of

24

Higher Education's website.

25

welcome to review the document in its entirety.

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And again, you're

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The focus of my questions will be the quote from

2

you in the middle of the second page.

3

A

Oh, I'm sorry, the middle of the second page.

4

I'm sorry, could you direct me more

5

specifically?

6

8

A

9

Are you referring to the quote that begins,
"Commercialism is here to stay"?

10

Q

Correct.

11

A

"Student-athletes are amateurs.

12

Intercollegiate

athletics is not."

13

Yes, I see the quote.

14

Q

What's the distinction that you're drawing here?

17

A

Well, the distinction I'm drawing is exactly the

18

one that I made a few minutes ago.

19

concept of amateurism describes the relationship

20

between the students who participate in

21

athletics and their institutions.

22

relationship of choice.

23

in -- that is described in terms of the benefits

24

received and the motivation to receive those

25

benefits.

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That the

It is a

It is a relationship

And that that is distinctive from the
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rest of the entity, the rest of intercollegiate

2

athletics.

3

Intercollegiate athletics is not an amateur

4

entity.

The -- those who participate are

5

amateurs.

6

definition, nor am I aware of anyone -- of any

7

definition that would describe intercollegiate

8

athletics in a way that would suggest that it is

9

amateur other than that those who participate

But -- but I've never seen a

10

are amateurs.

11

about the -- that distinction.

12

that is a distinction that is profoundly

13

apparent in the way in which the NCAA membership

14

has -- has described amateurism for over a

15

century now.

16

Q

17
18

And I think that

Intercollegiate athletics is not an amateur
endeavor.

A

That's -- that's what I meant

Is it a professional endeavor?

Those who are coaches, administrators, and

19

others, are professional by nature, by

20

definition, because they are paid to be that, to

21

be a coach, to be an administrator.

22

Intercollegiate athletics is, I think, in

23

the minds of most who would examine this, not

24

the same as a professional sports organization.

25

But that does not mean that it does not seek

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revenue, for example, to cover the costs of a

2

particular sport, and in some cases, most cases,

3

to cover the costs of -- of the university

4

providing participation opportunities in other

5

sports and over a broad number of men and -- and

6

women students.

7

So, you know, in a -- in a commonly

8

understood definition, intercollegiate athletics

9

would -- would not, in the minds of most, in my

10

opinion, be seen as the same as a professional

11

sports organization.

12

that are similar.

It has characteristics

13

Q

What are those similar characteristics?

14

A

Those --

15

MR. WIERENGA:

16

answered.

17
18

Objection, asked and

But go ahead.
A

Yeah.

I -- I think I -- I think I really

19

answered that -- that question pretty

20

thoroughly.

21

Q

Okay.

In your experience, does the public

22

understand the distinction that you're drawing

23

here in the middle of the page?

24

MR. WIERENGA:

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Object to the form,

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championship, NCAA women's championship?
A

I don't.

It's just not an area of -- of my

3

attention or expertise.

4

focus.

5

(Deposition Exhibit 419 marked for

6
7

Focus, I should say, my

identification.)
Q

I'm handing you what's been marked Exhibit 419,

8

Bates stamped -- are you familiar -- do you know

9

what I -- I mean when I say "Bates stamp"?

We

10

have a -- a lawyerly convention of numbering

11

documents using a number in the lower right-hand

12

corner.

13

MR. WIERENGA:

Those numbers.

14

A

Okay.

15

Q

We -- we may refer to it from time to time to --

16

A

18

I'm handing you Exhibit 419, which is Bates

19

stamped NCAAPROD00180245 to 248.

20

moment to review that document.

21

MR. CURTNER:

22

MR. WIERENGA:

23
24

Q

Please take a

What are we calling this?
419.

And as always, you're welcome to review the
entire document.

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My -- my questions will focus

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Q

10
11

Can you identify this as an e-mail that you sent
a number of NCAA employees on August 31st, 2005?

A

12

That's what it says at the top, so yes, I think
that's correct.

13

Q

You have no reason to doubt this?

14

A

I have no reason to doubt that.

15

Q

And you write, "I know I have been such an

16

infrequent voice in this discussion, so I have

17

hesitated to comment now, but I'm not bothered

18

by the answer provided.

19

bothered that within the 25 percent space, the

20

images can change as the cursor passes over a

21

smaller image.

22

added, just expanded.

23

sponsors making money.

24

would associate with us or our schools if they

25

can't."

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I'm -- I'm also not

There is nothing new being
Basically I'm for
I don't see why they

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A

Yes, I see that.

2

Q

Are you still for sponsors making money?

3

A

Sure, I am.

4

Q

Has your position changed at all in the last

5

seven years?

6

A

With regard to the sponsors making money?

7

Q

Whether you're for sponsors making money.

8

A

No, my -- my view on that has not changed.

9

I --

I'm -- I am -- I'm a believer in the

10

capitalistic approach, and -- and I believe that

11

businesses are generally in business, including

12

not-for-profit businesses, to make money.

13

they do that can differ between for-profit and

14

not-for-profit.

15

Q

Why

And earlier you testified that NCAA corporate

16

sponsors partner with the NCAA for a host of

17

reasons.

18

A

Uh-huh.

19

Q

Is that fair?

20

A

Yes.

21

Q

Here you write, "I don't see why they" -- are

22
23

you referring to the sponsors there?
A

Yes, I believe I am, yes.

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Q

Why didn't you identify here some of the

5

benefits that we've been discussing earlier

6

today?

7

A

Well, I thought that's the question that you

8

would ask when you -- when you showed this to

9

me, because it would strike any reader on first

10

glance as being somewhat inconsistent with what

11

I just said.

12

time to time, I, in writing, will make argument

13

for effect.

I don't think that it is.

From

14

Generally speaking, I think that any

15

business, anywhere in the world, but certainly

16

American corporations, exist for the purpose of

17

selling a product or -- or a service.

18

seems not only reasonable to me but what we

19

would expect from a capitalistic approach for --

20

for corporations to make decisions that they

21

believe would be beneficial financially.

22

And so it

Even as I describe what I described a

23

moment ago, with regard to what the returns are,

24

I think that even then there's an expectation

25

that the goodwill that they gain from an

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association with a highly valued entity will, in

2

fact, mean an increase in revenue.

3

that's certainly, I believe, their hope.

That's --

4

I believe that they are driven, as you

5

describe it, by a number of different factors to

6

this association.

7

are associated with intercollegiate athletics, I

8

tend to believe that their interest would be

9

less based on goodwill and -- and more solely

But without the values that

10

based on simply a financial return on

11

investment.

12

And at the same time, as I said, you know,

13

I will from time to time make a provocative

14

argument for the sake of engendering discussion.

15

I don't remember whether this was successful in

16

that regard or -- or not.

17

that there is an incon- -- a philosophical

18

inconsistence -- inconsistency between what I

19

said a moment ago and what is written here.

20

think that it is, you know, a -- a perfectly

21

reasonable correlation.

22

Q

But I don't believe

I

And you mentioned that you from time to time

23

write for effect, sometimes with the intent

24

of -- of provocation.

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2

somehow insincere, do you?
A

3

No, I don't mean that they are insincere.

But I

don't believe that the provocative necessarily

5

Q

Do you stand by what you wrote here?

6

A

I do.

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settings for a considerably long time and -- and

2

continue to use these arguments or variations

3

of -- of them in discussions about pay for play,

4

not from a perspective of rules or bylaws or

5

from a legal perspective, but from an

6

intellectual discussion of play for -- pay for

7

play as a concept.

8

Q

Did you draft this material?

9

A

I do not believe I did.

I believe this material

10

was drafted by Gary Brown, as he describes it,

11

based on conversations with me and others.

12

Q

That Gary Brown drafted in 2003?

13

Mr. Brown writes, "I'm attaching a

14

point/counterpoint ... that Myles, Wally, and

15

others helped the news compile in 2003."

16
17

MR. WIERENGA:
Q

18
19

So the question is?

Do you understand Mr. Brown to have drafted the
pay for play counterpoint materials here?

A

It's my understanding that he drafted them.

20

I -- I don't know what the date was when he

21

drafted them.

22

enough that I can't tell you whether I think it

24
25

Q

The -- the language is just vague

In the third full paragraph under pay for play
point/counterpoint, it's written, "Most athletic

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departments do not generate revenues over

2

expenses."

3
4

Do you agree with that statement?
A

I do.

And indeed, the number that is provided,

5

whatever the date of this writing, he describes

6

there are only 40 Division I-A institutions.

7

Today those would be what we identify as

8

football bowl subdivision or FBS institutions,

9

and -- and that number is lower by almost half.

10

Q

So if I understand you correctly, approximately

11

20 Division I-A institutions and their current

12

equivalent operate in the black today; is that

13

correct?

14
104a
802

A

Operate with revenues that exceed expenses.

15

Q

Do you know sitting here today on average the

16

percentage of Division I athletic department

17

revenue that goes to facilities' construction or

18

improvements?

19

A

As we sit here today, I do not.

20

Q

Do you recall stating in a speech at Washington

21

and Lee University in June 2009, "Today, nearly

22

20 percent of the average spending in Division I

23

athletics is tied to facility expansion and the

24

debt service that results"?

25

A

I do recall those numbers in -- in that speech

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based on data that I had asked for and -- and

2

received.

3

in saying today in that speech, because the data

4

probably was -- predated the giving of the

5

speech.

6

Q

I cannot tell you that I was accurate

Do you have any reason to doubt that that --

7

that the nearly 20 percent figure was accurate

8

within six months of the date of your speech?

9

A

I don't know.

10

Q

Do you know sitting here today what the number

11

is?

12

A

I do not.

13

Q

Do you know on average the percentage of

14

department -- Division I athletic department

15

revenue that goes to coaching salaries?

18

A

I do not.

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half of programs that generate revenues over

2

expenses.

3

Q

I'm trying to draw a distinction here between

4

athletic departments and men's Division I

5

basketball and football programs in particular.

6
104a
602

7

Q

Sure.

Do you agree that many Division I men's

8

football and basketball programs generate

9

revenues over expenses?

12

A

Again, I'm -- I'm -- I'm not sure what you mean

13

by -- by "many."

You mean -- you may mean

14

almost all.

15

That's a pretty significant difference.

You may mean more than half.

16

Q

Okay.

18

A

More than ten institutions or more than

19
20

More than ten?

10 percent?
Q

More than -- do you agree that more than ten

21

Division I men's football and basketball

22

athletic programs generate revenue over

23

expenses?

24

A

I wouldn't be surprised.

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1

Q

But you have no knowledge one way or another of

2

how many Division I men's football and

3

basketball programs generate revenue over

4

expenses?

5

A

Well, it's my general understanding that

6

approximately 70 percent of Division I FBS

7

institutions generate only in that sport

8

revenues that exceed the expenses of that sport.

9

And that number in men's basketball is

10
11

approximately 60 percent.
Q

What does pay for play mean?

12

MR. WIERENGA:

Object to the form.

13

A

As defined by whom?

14

Q

By you.

15

A

I understand pay for play to be the professional

16

model of -- of salaried remuneration for

17

athletics participation.

18

Q

I hate to get too fine here, but is -- does

19

unsalaried remuneration for athletic

20

participation also fall within your definition

21

of pay for play?

22

MR. WIERENGA:

Object to the form.

23

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(only if
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104a and
602
objections
are
acceptedotherwise
Plaintiffs
agree to
admit)

4

Q

Would -- to your knowledge, would remunerating

5

players for their participation in

6

intercollegiate athletics diminish public

7

interest in college sports?

11

A

Well, based on 40 years of -- of observation and

12

examination of what makes intercollegiate

13

athletics popular, I hold the view that if you

14

change the collegiate model into one that

15

attaches the student-athlete as -- as a

16

professional to the model, joining those others

17

who are professional, that in -- that in -- in

18

my view, that would diminish the -- the way in

19

which intercollegiate athletics is viewed,

20

appreciated, admired, loved by -- by the public.

21

The relationship of the student, the sport,

22

and the institution constitutes a phenomenon

23

that is held valuable by those who attend and

24

those who help sponsor the -- the broadcast

25

or -- you know, or in other ways support

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(only if
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104a and
602
objections
are
acceptedotherwise
Plaintiffs
agree to
admit)

1

intercollegiate athletics.

2

And, you know, again, based on my

3

observation over a lengthy career, I think that

4

turning intercollegiate athletics into second-

5

or third-rate professional sports would -- would

6

diminish the interest.

7

The level at which those who participate in

8

athletics in terms of their skills and their

9

purpose is not on par with what you would expect

10

from professional athletes.

11

athletes, playing sports is their job.

12

student-athletes, it is not.

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17

To your knowledge, would paying former

18

student-athletes for their previous

19

participation in intercollegiate athletics

20

diminish public interest in college sports?

22

A

I have no way of -- of knowing the answer to

23

that.

24

thought to.

25

Q

It's not one that I've even given much

Has the NCAA studied that question to your

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1

knowledge?

2

A

Not to my knowledge.

3

Q

And you're not aware of any surveys concerning

4

that question, are you?

5

A

I personally am not.

6

Q

I understand that there have been considerable

7

discussion at the NCAA with its members about

8

the possibility of a stipend for

9

student-athletes above and beyond the

10

grant-in-aid.

11

Is that a fair characterization?

12

MR. WIERENGA:

13

foundation, relevance.

14
15

Object to the form,

Go ahead.
A

I did -- I believe the characterization is

16

inaccurate.

17

understood that to be considered a -- a stipend.

18

It is money that would cover the uncovered

19

additional costs between the current scholarship

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Q

2

Forgive me.

I think there is a tense issue.

While they were a student-athlete?

3

MR. WIERENGA:

Well, now I object, vague.

4

I'm still -- I don't understand how you can pay

5

a former student-athlete while they're --

6

MR. GOSSELIN:

Well --

7

MR. WIERENGA:

-- a student-athlete.

8

MR. GOSSELIN:

-- we -- we don't need your

9

testimony.

10

MR. WIERENGA:

11
12

104a
602

No, but that's my objection

to the question.
Q

Let me rephrase my question.

16

To your knowledge, would paying former

17

college athletes after their eligibility expires

18

for the use of their likeness while they were

19

student-athletes diminish public interest in

20

college sports?

23

A

24
25

I have no way of -- of knowing the answer to
that question.

Q

And this, too, is not something that the NCAA

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1

has studied to your knowledge?

2

A

Not that I'm aware of.

3

Q

Similarly, you're not aware of any surveys

4
5

addressing this question, are you?
A

I am not.

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task force may have furnished to committee

2

liaisons about how and when to distribute

3

documents to best protect them?

4

A

Your question is?

5

Q

Do you have any recollection of guidance

6

provided by the open --

7

A

No.

8

Q

-- records task force --

9

A

No.

10

Q

-- in this respect?

11

Do you know if the NCAA notified state

12

attorneys general about the work of the open

13

records task force?

14

A

I do not know.

15

Q

Do you know if the NCAA notified the presidents

16

19

of public universities about the work of the

Q

20
21

Let's talk for a moment about President Byers.
You worked for Mr. Byers; correct?

A

I worked for the NCAA when Mr. Byers was the

22

executive director, but I did not work for him

23

in the same way that I have worked for the last

24

two presidents of the NCAA.

25

of the office of the president.

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Q

2

Did you have any contact with President Byers
while he was executive director?

3

A

Yes.

4

Q

And what was the nature of that contact?

5

A

Generally informal in the hall conversations.

6

did work with him on a couple publishing

7

I

projects for public consumption.

8

Q

9
10

And President Byers coined the term
"student-athlete"; correct?

A

I don't -- I don't know with certainty that --

11

that he did.

12

to him.

13

him myself, but I can't tell you with absolute

14

certainty that that's the case.

15

was during his period of time as executive

16

director that the -- that the term sort of came

17

to the forefront.

18

Q

I think it is generally attributed

I probably have even attributed it to

It certainly

Do you recall stating in a speech at Washington

19

and Lee University in 2009, "To be honest, the

20

term 'student-athlete' was the invention of the

21

first president of the NCAA, Walter Byers, who

22

used the term to mollify the media and others

23

when some college athletes began to receive

24

grants-in-aid to participate in sports"?

25

A

Yes, that's -- that's exactly the kind of

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attribution that I was alluding to in my

2

previous question -- or answer.

3

Q

4

So you have no reason to recant this earlier
statement?

5

A

I do not.

6

Q

And are you aware that President Byers has

7

stated that the term was created because of

8

concerns that the grant-in-aid might create an

9

employee-employer relationship?

12

A

I don't know what -- I don't know that with --

13

with certainty.

I have -- as you read in that

14

speech, I have described it as I did there.

15

Q

Have you read President Byers' book?

16

A

I have not.

I -- I have read very small

17

portions of it from time to time, but I have not

18

read the book.

19

Q

Are you in contact with President Byers today?

20

A

I am not.

21

Q

When was the last time, if you can recall, that

22
23
24

you communicated with -- with President Byers?
A

In person, 1988.

Sometime after that, but with

no specific recall, by voice mail when there was

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a -- I had a telephone number that I wasn't even

2

certain was his, reached out, left a voice mail.

3

He left me a voice mail indicating that he was

4

not interested in speaking to the reporter.

5

Q

And roughly what year was that?

6

A

I don't know.

7

Q

12

Q

What were your impressions of President Byers

13

during the period of overlap between the two of

14

you at the NCAA?

16

A

My impression of him in what regard?

17

Q

Do you -- did you respect him?

18

A

I did.

19

Q

Did you respect his accomplishments at the NCAA?

21

A

Yes.

22

Q

And earlier you made a reference to the NCAA's

23

move, I believe it's from Kansas City, to

24

Indianapolis --

25

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earlier, values driven, decision-making task

2

force, attempted to reduce the concept of those

3

principles and to articulate them in a fewer

4

number.

5

you a moment ago.

And -- and they are what I described to

6

Q

And which task force are you referring to?

7

A

In a previous document that you shared with me

8

just before our break, you'll recall that --

9

that it was a summary report of some 15

10

different task forces.

13

One of those was the one

Do the NCAA and its member institutions

14

have -- share commonly held principles outside

15

of those enumerated in the manual?

17

A

I don't -- I don't know.

If they -- if they

18

share commonly held values beyond those, they've

19

not been memorialized to -- that -- that I'm

20

aware of.

21

Q

22

Is the prohibition against pay for play a
commonly held principle, a rule, or both?

23

A

Both.

24

Q

I want to talk a little bit about

25

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President Emmert when he was a candidate for his

2

current position?

3
4

MR. WIERENGA:
A

I did not.

Object to the form.

The interviewing is exclusively done

5

by the membership through its executive

6

committee.

7

Q

Did you -- were you introduced to

8

President Emmert as part of his candidacy for --

9

for this position?

10

MR. WIERENGA:

11

A

Object to the form.

I was a liaison to the executive committee in

12

its role as the search committee for the -- for

13

the president.

17

Q

18
19

And can you remind me when President Emmert
began in his current position?

A

He -- he was hired by, confirmed by the ex- --

20

the executive committee in April of 2010, but

21

did not become an actual employee and assume the

22

position until early October of -- of that year.

23

I don't recall the date precisely.

24
25

Q

And did you begin working with President Emmert
right away, or was there a delay?

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A

Well, I -- I was -- I had been a member of the

2

office of the president prior to his coming in,

3

both with Dr. Brand and then with interim

4

president Jim Isch.

5

I continued throughout to be a member of the

6

office of the president.

7

which there were opportunities for the office of

8

the president to interact with the president

9

elect, I -- I did.

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And so the degree to

I was part of that.

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2

opportunities for fulfilling the mission.
Q

3
4

And in providing advice, do you draw on your
40-year tenure at the NCAA?

A

I do.

5

7

(Deposition Exhibit 424 marked for

Q

8

I'm handing you what's been marked Exhibit 424,
Bates stamped NCAAPROD00148806 to 810.

9

MR. GOSSELIN:

I can tell all counsel

10

that -- I take that back.

11

perhaps this had been used as a past exhibit.

12

Now I don't believe that's the case.

13

Q

I -- I thought

But I can represent to you, Mr. Renfro, that the

14

NCAA did not for whatever reason produce the

15

next to last e-mail --

16

MR. SLAUGHTER:

17

MR. GOSSELIN:

18

Q

Sathya -Yeah, one second.

-- the next to last e-mail in this chain.

We

19

only have this one, so we're going to talk from

20

the first paragraph down.

21

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Q

First, can you identify everything below the

2

first e-mail header as an e-mail that you sent

3

to President Emmert -- maybe it's easiest if we

4

do this, from the -- I guess what's the third

5

e-mail below.

6

of the page downward as an e-mail that you sent

7

on October 17th, 2010, at 12:12 p.m. to Mark

8

Emmert and Jim Isch?

Can you identify from the middle

9

A

Yes.

10

Q

And when was the last time that you saw this

11

document?

12

A

In all likelihood on October 17th.

13

Q

If you look at the -- does -- does the first

14

paragraph refresh your recollection of why you

15

sent this e-mail with the subject line "Looking

16

Forward"?

17

A

Yes.

18

Q

Why did you send this e-mail?

19

A

This was an effort by me to give some advice,

20

some counsel, some thought to a fairly

21

significant range of -- of topics, some of which

22

I had probably already heard Dr. Emmert speak

23

about, some of which I anticipated would

24

likely -- likely come up.

25

certainly in the -- you know, the result of

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issues du jour, things that were right out in

2

front of us and very obviously so.

3

Q

4
5

And -- and did you intend this to be a full and
frank discussion?

A

It is nothing more than my observations on -- on

6

these topics and, within certain parameters,

7

some -- some -- some advice.

8

know, my -- my recollection is that, in fact, I

9

don't believe we ever really had a -- a full

10
11

It was -- you

discussion on this document.
Q

That was going to be my next question before we

12

start looking at various portions.

13

received a written response from

14

You never

President Emmert; is that correct?

15

A

I don't believe so.

16

Q

And do you --

17

A

It --

18

Q

-- recall -- I'm sorry, I didn't mean to

19
20

interrupt.
A

Well, it wasn't intended necessarily to -- you

21

know, to -- in expectation of a response.

22

was really just what it -- what it -- what it

23

is.

24

Q

It

Do you recall any meeting with President Emmert

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Q

4

And if you look under "Stu-" -- the second page,
there's a header, "Student-Athlete Well-Being."

5

A

Yes.

6

Q

In the middle of that paragraph, you write,

7

"Maybe we don't call them student-athletes any

8

longer and just refer to them as students.

9

(It's a term that Walter Byers created to

10

counter the criticism that we are paying college

11

athletes when we began providing

12

grants-in-aid.)"

13

Have you made this particular proposal to

14

16

anyone else at the NCAA?

A

I don't recall whether I -- whether I have or --

17

or not.

18

that -- that in the very first paragraph, in the

19

last sentence of that paragraph, I said that

20

"I've given thought to all this and have tried

21

below to begin teasing out some thoughts that

22

might be further developed.

23

provocative, some probably not provocative

24

enough."

25

Let me just go back and -- and remind

Some of this is

So -- so almost always -- you know, this

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was simply to inform Dr. Emmert of some of my

2

views, some of them that were mature, some of

3

them that probably weren't very mature.

4

tell you that this is one that I would certainly

5

characterize as not very mature.

6

it was a thought.

7

but I'm not sure that -- I -- I hadn't given a

8

lot of -- of thought to it, and -- and I don't

9

believe -- I don't recall that we ever discussed

10
11

I can

I had -- it --

It was sort of intriguing,

it again.
Q

Does -- does reading this refresh your

12

recollection that -- and I'm quoting -- "Walter

13

Byers created the term" -- my brackets -- "the

14

term 'student-athlete' to counter the criticism

15

that we were paying college athletes when we

16

began providing grants-in-aid"?

17
18

MR. WIERENGA:
A

Objection, foundation.

I'm not exactly sure what the question is that

19

you're asking.

20

had -- in a speech at Washington and Lee, had

21

made reference to an attribution to Walter about

22

the creation of the term "student-athletes" and

23

an attribution as to -- as to why.

24

I have testified earlier that I

So in terms of refreshing my memory, I'm

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Q

15

If you look farther down the page, under the
header "Time Requirements."

16

A

Yes.

17

Q

And I'll read from it briefly.

"We know from a

18

couple of surveys we have done (one with current

19

student-athletes, which was first done about

20

four or five years ago that I think has been

21

updated), and one with students ten years out of

22

high school that student-ath-" --

23

A

Wait a minute.

24
25

MR. WIERENGA:

Where are you?

A

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-- "and one with students ten years out of
-

8

high school), that student-athletes spend as

9

much as 45 hours a week on their sport, more

10

they say in some cases than their academics."

11

Do you recall sitting here today which

12
13

surveys you're referring to here?
A

The two that I were referring to are -- I --

14

I -- I can only identify by -- by acronym.

15

is called SCORE, or SCORES.

16

called GOALS.

17

student-ath- -- well, as this says,

18

student-athletes who had been out of high school

19

for ten years, and the other was a current

20

student-athlete.

21

recall, was with current student-athletes.

22

Q

23

One

And the other is

One has -- one was a survey of

The larger sampling, as I

Do you know if those materials are publicly
available?

24

A

I do not know.

25

Q

And do you know who conducted these surveys?

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A

Well, I believe they were under -- they were

2

conducted under the auspices of our research

3

staff.

4

The ones for current student-athletes, I can

5

only imagine, were conducted on campus by

6

individuals on campus.

16

Q

I do not know who conducted the surveys.

You write further down in this paragraph, "We

17

have a wink and a nod approach to voluntary

18

activity."

19

21

What is a wink and a nod approach?

A

I think that that's a -- a -- a term of art that

22

most everyone when they read it understands that

23

it is imprecise, that it -- it does not

24

necessarily -- that there is not necessarily

25

100 percent compliance.

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there's not 100 percent compliance.

2

it -- it, like some other circumstances in

3

various other areas, is not viewed as being one

4

that you know how to achieve full enforcement.

5

But it --

I -- I can expand on that, if you wish, to

6

say, if I am a student-athlete or if I am a

7

musician or if am in theater, you know, a

8

thespian, or any number of other areas, my

9

voluntary commitment to that activity is

10

difficult to ever govern.

11

So we have a 20-hour rule for organized

12

activity, and that we ask the in- -- is my

13

understanding, we ask institutions to confirm

14

that that's -- that they comply with that.

15

in terms of voluntary activity, it's far more

16

difficult to ever know and, therefore, enforce

17

what -- what time students are putting into any

18

number of different activities.

19

Q

And you mentioned a few examples.

But

Does the NCAA

20

govern theater, music -- music or theater

21

activities?

23

A

It does not govern those activities, but those

24

activities are similar to -- are part of the way

25

in which activities in the collegiate model

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function.

2

athletics often, I would say even generally,

3

have some relationship to the way things are

4

conducted elsewhere on campus.

5

Q

So activities in intercollegiate

Do you recall whether the two surveys that

6

you've identified today provided statistics

7

about the compliance rate, the time requirement

8

compliance rate of the students surveyed?

9

A

I do not recall.

10

Q

Look at the bottom paragraph on that page.

You

11

wrote under "Commercial Exploitation," and you

12

skip ahead one sentence.

13

sense that intercollegiate athletics is as

14

thoroughly commercialized as professional

15

sports."

16

Whose general sense are you referring to

17
18

"There is a general

there?
A

The -- the world, the public, that -- and -- and

19

I don't even state it as -- I don't intend to

20

state it as a matter of fact or a provable fact.

21

Only that if one reads the media and relies on

22

that to be some sort of metric for public

23

opinion, one might draw from that that there is

24

this general sense.

25

Q

Are you suggesting that the media has somehow

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incorrectly reported that the public views

2

intercollegiate athletics as thoroughly

3

commercialized?

7

A

104a
802

Actually, what I am suggesting is that the

8

media -- media has incorrectly suggested that

9

intercollegiate athletics is thoroughly

10
11

commercialized as professional sports.
Q

Let's continue on.

You write, "Some believe

12

that athletic departments study how to emulate

13

the pros on marketing their sports, primarily

14

football and basketball, and sometimes lead the

15

way."

16

To your knowledge, do any college athletic

17

departments study how to emulate the pros on

18

marketing their sports?

19

A

Well, that was not the point of the sentence.

20

The point of the sentence was that there are

21

some who believe that that -- that that occurs.

22

I would not know the answer to the question that

23

you asked.

24
25

Q

So you haven't discussed this with any athletic
directors?

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A

No.

2

Q

And I'm continuing on.

3
4

"And the public would

104a
802

generally," I -- I believe -A

Typo.

5
6

-- "generally agree that all -- that has
-

7

all taken place at the expense of the

8

student-athlete whose participation is excluded

9

to make another buck for another stadium, the

10

coaches, the administrators, or for other teams

11

who can't pay their own way.

12

continuing on to the next page -- "a fairness

13

issue and along with the notion that

14

student-athletes are students is the great

15

hypocrisy of intercollegiate athletics."

16

What do you mean by "the great hypocrisy of

17

19

It is" --

intercollegiate athletics"?

A

Again, remember that I am talking about the

20

opinion of some.

21

believe that athletics departments and -- and so

22

on and so forth.

23

thought in a provocatively stated way that some

24

believe this is the state of -- of

25

intercollegiate athletics.

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So this is all based upon some

So this is a continuation of

I don't -- I don't

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try to -- to des- -- to describe in this nor

2

would I know how to describe how many are

3

"some."

4

writings some of in the media who -- who, in

5

fact, use terms much like or exactly like the

6

terms that I have used -- used here.

7

way to, as bluntly and as provocatively as I

8

could, sort of state the view of those who are

9

the most critical and cynical of intercollegiate

10
11

104a
802

But I certainly have encountered the

This was a

athletics.
Q

And so if I understand you correctly, you're

12

channeling the media, in a sense, when you

13

write, "The great hypocrisy of intercollegiate

14

athletics"?

16

A

Yeah.

I wouldn't agree with the term of art

17

that you used.

18

it's in my power to channel anyone.

19

representing what it's my understanding through

20

media readings is the opinion of some.

21

Q

Okay.

I don't -- certainly don't think
But I'm

And if we go down the page to the next

22

bullet point, "Professional Exploitation

23

(Agents)," you write, "We have always had a

24

cradle-to-grave approach to amateurism.

25

104a
802

born an amateur, but like innocence once lost,

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it cannot be regained.

But our commitment to

2

amateurism and the commitment of our public's

3

has often been based on something other than how

4

we define amateurism in our own constitution.

5

In the most romantic sense, we think of

6

amateurism as playing sports for the love of the

7

game, for the camaraderie among competitors, for

8

the pride of victory for school or colors, and

9

then we use this romanticized sense of

10

amateurism to define the entire enterprise of

11

104a
802

collegiate athletics."

12

Do you see that?

13

A

Yes, I do.

14

Q

Now, you wrote this in 2010.

15

A

Yes.

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use to suggest it isn't based on fact.

2

based more on emotional or, you know, some sort

3

of visceral sense of intercollegiate athletics.

4

It's

And -- and so this is a -- this was written

5

as a way to -- to sort of describe how

6

amateurism has a narrow meaning within the

7

constitution but is applied broadly and, in my

8

estimation, far too broadly to the entirety of

9

intercollegiate athletics.

And that's a --

10

that's a point I -- I made earlier this morning.

11

And you will recall that there was something

12

that you had provided that I had written about

13

student-athletes or amateurs, intercollegiate

15

Q

And if I understand you correctly, this excerpt

16

that we've read here is anoth- -- is another

17

attempt, for lack of a better term -- I'm

18

certainly open to others -- to channel others

19

who may be critical of the NCAA; is that

20

correct?

21

A

It's an ability to articulate the opinion as I

22

understand it of -- of others.

I simply -- I

23

don't know what you mean by "channel."

24

Q

Well --

25

A

But it is -- it is an effort to -- to try to --

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in a very provocative, blunt way, to -- you

2

know, to -- to sort of establish the -- the view

3

of -- of -- of some without any determination of

4

how many those are who are critics, who are

5

cynics, and who have a platform to express their

6

criticism or cynicism.

7

Q

And do you, Mr. Renfro, as Mr. Renfro, agree

8

with the statement that begins, "You are born an

9

amateur" and ends with, "to define the entire

10

12

enterprise of intercollegiate athletics"?

A

13
14

Do you mean is this my personally held view?

It

is not.
Q

Okay.

You write at the bottom of that

15

paragraph, "We, and you will have to lead the

16

charge, must do a better job of helping put

17

these concepts into perspective, and we are

18

best-served in that effort by doing so within

19

the context of higher education.

20

for student-athletes to have agents.

21

avocational nature of student-athletics

22

participation prohibits the gathering of

23

monetary benefits in such a relationship."

24
25

It may be okay
The

Is this a suggestion by you as Mr. Renfro
that it may be okay for student-athletes to have

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2

agents?
A

It wasn't a suggestion.

It was an observation.

3

But the observation, if it were to be

4

considered, offers a codicil.

5

Q

And how would this arrangement work such that

6

there are no -- there is no gathering of

7

monetary benefits?

11

A

12
13

And it -- and it really doesn't fall to me to
figure that out.

Q

14

And you don't recall ever receiving any feedback
from President Emmert about this --

15

A

I do not.

16

Q

-- observation?

17

If we continue on to the next page.

18

Under

"Financial Underpinning of Athletics" --

19

A

Uh-huh.

20

Q

104a

-- in the middle of that paragraph, you write,

21

"The top 25 percent of Division I is setting the

22

spending pace for the rest of the division,

23

although the bottom 25 has largely stopped

24

trying to compete and is content with the

25

prestige that comes with being in the same

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neighborhood.

2

the middle 50 percent.

3
4

104a

are the haves, the have-nots, and the
forget-about-its."

5

The real issue appears to be in
So what we really see

Do you see that comment?

6

A

Yes.

7

Q

Now, when you write, "the top 25 percent," are

8

you referring to the top 25 percent in terms of

9

revenue over expenses?

11

A

I'm probably -- no, I'm definitely not.

I'm

12

probably referring to the top 25 percent in

13

terms of athletics budget.

14

Q

And that's overall --

15

A

A budget is an estimation or a -- a goal for

16

what you will spend.

17

Q

And are those annual budgets?

18

A

Yes, that was the thought I had in mind.

19

22

I'm

sorry.

Q

So if I have this correctly, you're -- you're

23

referring to the top 25 percent as the haves,

24

the middle 50 percent as the have-nots, and the

25

bottom 25 percent as the forget-about-its.

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104a

1

you give me examples of -- of universities that

2

fall into each of those categories?

5

A

The intent of this was not, in fact, to identify

6

specific institutions.

7

budgets are of -- of institutions.

8

at aggregated numbers and at the median or

9

average of -- of those aggregated numbers.

14

Q

I don't know what the
I only look

And in your experience, the -- are the

15

forget-about-its able to compete effectively

16

with the haves?

18

A

I think that, in fact, the sentence above that

19

says that "The bottom 25 has largely stopped

20

trying to compete and is content with the

21

prestige that comes with being in the same

22

neighborhood."

23

So I -- so I think I had -- I had already
h ad
ha

24

said in this paragraph that they likely were not

25

competing with the top 25.

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