O'Bannon, Jr. v. National Collegiate Athletic Association et al

Filing 237

Administrative Motion to File Under Seal Defendant NCAA's Deposition Designations filed by National Collegiate Athletic Association. (Attachments: #1 Declaration of Jeslyn A. Miller, #2 Proposed Order, #3 NCAA's Deposition Designations, #4 Exhibit A, #5 Exhibit B, #6 Exhibit C, #7 Exhibit D, #8 Exhibit E, #9 Exhibit F, #10 Exhibit G, #11 Exhibit H, #12 Exhibit I, #13 Exhibit J, #14 Exhibit K, #15 Exhibit L, #16 Exhibit M, #17 Exhibit N, #18 Exhibit O, #19 Exhibit P, #20 Exhibit Q, #21 Exhibit R, #22 Exhibit S, #23 Exhibit T, #24 Exhibit U, #25 Exhibit V - REDACTED, #26 Exhibit V - SEALED, #27 Exhibit W, #28 Exhibit X, #29 Exhibit Y, #30 Exhibit Z, #31 Exhibit AA, #32 Exhibit BB)(Miller, Jeslyn) (Filed on 6/23/2014) Modified on 6/24/2014 (kcS, COURT STAFF).

EXHIBIT K

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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4
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IN RE: NCAA STUDENT-ATHLETE

) CASE NO.

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NAME & LIKENESS LICENSING

) 4:09-cv-1967 CW

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LITIGATION

)

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9

** CONFIDENTIAL - ATTORNEYS EYES ONLY **

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11

VIDEOTAPED DEPOSITION OF
DAVID F. KIRKPATRICK

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NOVEMBER 14, 2012
9:00 A.M.

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KILPATRICK TOWNSEND & STOCKTON, LLP
1100 PEACHTREE STREET, SUITE 2800

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ATLANTA, GEORGIA

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18
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REPORTED BY:
STEVEN S. HUSEBY, RPR

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CCR-B-1372

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Designation Color Key
Blue = NCAA Affirm Desigs.
Orange = Pls' Counter Desigs.
Fuchsia = NCAA Rebuttal Desigs

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right of publicity plaintiffs.

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MR. HENN:

Charlie Henn with

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Kilpatrick Townsend on behalf of the witness and

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Collegiate Licensing Company.

5

Bruce Siegel, in-house counsel at Collegiate

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Licensing Company.

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MR. WIERENGA:

Also with me is

Robert Wierenga,

Schiff Hardin, on behalf of the defendant NCAA.

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MR. BRAUNIG:

Warren Braunig, Keker

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& Van Nest, on benefit of defendant Electronic

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Arts.

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MR. POTEPAN:

Jim Potepan,

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LeClairRyan, on behalf of Collegiate Licensing

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Company.

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DAVID F. KIRKPATRICK,

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being first duly sworn, was examined and

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testified as follows:

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19

EXAMINATION
BY MR. GILMORE:

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Q.

Good morning, Mr. Kirkpatrick.

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A.

Good morning.

22

Q.

We met previously before this morning.

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As I stated my name is Lucas Gilmore, I represent

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the antitrust plaintiffs in this lawsuit.

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you state your full name for the record?

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Can

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A.

David Fordyce Kirkpatrick.

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Q.

And what is your date of birth,

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Mr. Kirkpatrick?

4

A.

September 15, 1970.

5

Q.

And where do you reside?

6

A.

Atlanta, Georgia.

7

Q.

And Mr. Kirkpatrick, have you ever had

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your deposition taken?

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A.

No.

10

Q.

Before we proceed with the deposition

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I'm just going to go through some basic ground

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rules because it's probably not like an everyday

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experience.

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here by counsel, correct?

The first is you are represented

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A.

Correct.

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Q.

And that's Mr. Henn?

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A.

Correct.

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Q.

When I ask a question Mr. Henn and the

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other counsel will have the opportunity to object

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to the form.

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answer, you're to answer my questions.

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understand that?

But unless you're instructed not to
Do you

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A.

I understand.

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Q.

And the next ground rule is you have to

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understand what I'm saying.

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As you can see the

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Q.

Did you do any postgraduate work?

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A.

No.

3

Q.

And you're currently employed by

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Collegiate Licensing Company?

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A.

Correct.

6

Q.

What's your position with Collegiate

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Licensing Company?

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9

A.

management.

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11

Vice president of non-apparel brand

Q.

What is your understanding of the

business that CLC conducts?

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A.

CLC is a trademark licensing agency.

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Collegiate institutions hire CLC to administer

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their licensing processes.

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16

Q.

200 colleges?

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18

Is it true that CLC represents nearly

A.

I don't think it's that many colleges.

I think it's probably closer to 150 colleges.

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Q.

I guess 200, in collection, 200

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colleges, universities, bowl games, athletic

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conferences?

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A.

That's more accurate.

23

Q.

Okay.

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And among its clients is the

Heisman trophy trust; is that right?

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A.

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Correct.
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MR. HENN:

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MR. BRAUNIG:

Same objection.

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THE WITNESS:

I don't know what you

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mean by that.

5

Object to the form.

BY MR. GILMORE:

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7

Q.

Do you have an understanding of what

ancillary intellectual property assets are?

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A.

No.

9

Q.

Does CLC handle licensing programs for

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former collegiate athletes?

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A.

CLC does not handle licensing programs

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as far as I know for any former student athletes

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at this time.

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15

Q.

Has CLC handled licensing programs for

former student athletes at any time?

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17

MR. WIERENGA:

I'll object as vague,

but go ahead.

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THE WITNESS:

When Peyton Manning

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graduated from Tennessee, we managed a Peyton

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Manning in conjunction with University of

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Tennessee licensing program.

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probably ten years ago.

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with Danny Wuerffel and the University of

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Florida.

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recall.

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So that was

We did something similar

Those are the only two that I can

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A.

Like a painting that was -- a painting.

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Q.

And so did CLC obtain a licensing

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agreement with a printer for a painting of

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Mr. Manning?

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A.

Yes, a licensee obtained rights to the

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University of Tennessee and Peyton Manning's

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image in conjunction with the University of

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Tennessee.

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from us.

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Q.

They received a licensing agreement

And in terms of the rights that were

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licensed to the licensee that CLC was involved

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in, can you describe that?

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A.

Just pertaining to the trademarks?

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Q.

The trademarks of Tennessee.

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A.

The trademarks of Tennessee.

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Q.

Was CLC involved in any kind of transfer

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of rights from Mr. Manning?

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A.

Mr. Manning, yes, he saw the print and

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approved the print.

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say.

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Or his agent did, I should

I'm not certain he did.
Q.

And do you recall any other licensing

deals that CLC was involved in with Mr. Manning?

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A.

I don't.

24

Q.

How about with Mr. Wuerffel?

25

A.

I think it was the same artist.

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I don't

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recall the person's name, but I think it was a

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print.

3

Q.

4

And do you have any knowledge of any

licensing programs with Mr. Crouch?

5

A.

I do not.

6

Q.

In the deal that you described with

7

Mr. Manning, did CLC transfer any rights relating

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to Mr. Manning?

9

A.

I don't know what you mean by transfer.

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Q.

In terms of the agreement that CLC

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entered into with the licensee, you identified

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that there were license -- there was licensing

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rights to Tennessee's trademark.

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agreement, did CLC also facilitate the name,

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likeness and image rights with Mr. Manning?

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MR. WIERENGA:

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THE WITNESS:

Did that

Object to the form.
Peyton Manning hired

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CLC to explore what market may be out there for

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products that combined Peyton Manning in

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conjunction with the University of Tennessee's

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trademarks.

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BY MR. GILMORE:

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Q.

So in doing -- so Mr. Manning released

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his name, likeness and image as it relates to

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his -- in his college time; is that correct?

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A.

He didn't --

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MR. HENN:

Object to the form.

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THE WITNESS:

He did not release his

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rights.

He maintained full approval of

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everything that came through.

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MR. BRAUNIG:

Can we confirm on the

7

record that an objection for one defendant is an

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objection for all?

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10

MR. WIERENGA:
Lucas?

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12

MR. GILMORE:

Yes.

BY MR. GILMORE:

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14

That was a yes,

Q.

When did you first obtain employment

with Collegiate Licensing Company?

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A.

December 16th, 1994.

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Q.

And what was the title of your position?

17

A.

I should clarify.

I was hired on the

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Battle Enterprises side of our company, and so I

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think my title was marketing manager for NASCAR

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properties.

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in-house, and I switched over to CLC right around

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January 1st of 1996.

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24

Q.

NASCAR took their licensing program

And when you joined January 1st of 1996,

what was the title of your position?

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A.

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Retail marketing manager.
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2

MR. HENN:
for a legal conclusion.

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4

Object to the form, calls

THE WITNESS:

I don't know.

BY MR. GILMORE:

5

Q.

Who at CLC would know?

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A.

I don't know.

7

Q.

And going back to the Peyton Manning

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management program, you mentioned that there was

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licensing related to a print of Mr. Manning's

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face.

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A.

I don't remember.

He had his helmet on,

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so I don't know if -- it was a long time ago, I

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don't remember exactly what it looked like, so I

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don't know how much the face was seen.

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16

Q.

But in that instances, Mr. Manning

provided consent, correct?

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A.

Correct.

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Q.

And Mr. Manning was providing consent to

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use his likeness, correct?

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MR. HENN:

Object to the form.

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MR. BRAUNIG:

Object to the form.

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THE WITNESS:

Again, I don't know if

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it was Peyton Manning or his agent, but they had

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full approval rights on the product.

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BY MR. GILMORE:

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Q.

Okay.

Either Peyton Manning or his

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agent were approving or granting consent to use

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his likeness, correct?

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MR. HENN:

5

Object to the form,

misstates the testimony.

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MR. WIERENGA:

7

THE WITNESS:

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He was approving the

product.

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And foundation.

BY MR. GILMORE:

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Q.

Based on your understanding, what rights

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did Mr. Manning have in terms of approving the

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product?

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A.

Full approval rights, that the

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university has rights to the trademarks and

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Peyton Manning had full approval rights on the

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product.

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Q.

And those approval rights based on your

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understanding was Mr. Manning's name, likeness

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and image, right?

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MR. HENN:

Object to the form.

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MR. WIERENGA:

22

MR. HENN:

23

THE WITNESS:

Foundation as well.

Asked and answered.
He had approval rights

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on the product, the artwork that came through,

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the concept, the licensee, Peyton Manning had --

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or his agent had full approval rights on the

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product.

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BY MR. GILMORE:

4

Q.

Going back to the annual review and

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preview meetings you discussed, who regularly

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attends those meetings?

7

A.

Representatives from EA Sports,

8

representatives from the NCAA, representatives

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from CLC.

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Q.

That would be the regular group.
The representatives from the NCAA, can

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you identify those individuals that regularly

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attend?

13

A.

Regularly would be Peter Davis.

David

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Clendenin hasn't been there that long, but David

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the last one or two.

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17

Q.

So the NCAA's equivalent of the

licensing contact?

18

A.

Correct.

19

Q.

Okay.

20

A.

I believe that Scott Bearby in their

Anyone else with NCAA?

21

legal department has attended.

I don't know that

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he's attended every one but he's been to some.

23

Q.

Anybody else?

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A.

I don't believe so.

25

Q.

And the representatives from EA, who are

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2

Q.

Does the NCAA get a copy of the game

prior to it going to market?

3

A.

No.

4

Q.

And that's the same for both basketball

5

and football?

6

A.

Correct.

7

Q.

When if ever does CLC receive a final

8

cut of the video game?

9
10

A.

Probably ten days after it's been

released, we receive a copy, maybe sooner.

11

Q.

In the process in which EA is uploading

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materials on the iCLC, during your tenure at CLC

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have you ever been notified of EA uploading a

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document in an Excel format?

15

A.

No.

16

Q.

Has anyone ever told you that EA

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maintains Excel spreadsheets that have the number

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of the player in one column matching it with the

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actual name of the real player in another column,

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and the actual height and weight of the real

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player along with specific in-game ratings?

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23

MR. HENN:

Object to the form,

foundation.

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MR. BRAUNIG:

Object to the form.

25

THE WITNESS:

No.

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Mr. Kirkpatrick, after reviewing Deposition

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Exhibit 616, can you confirm that these are

3

accurate copies of e-mails you either sent or

4

received?

5

A.

Yes, it appears to be, yes.

6

Q.

And you sent and received that in the

7

ordinary course of your business, correct?

8

A.

Yes.

9

Q.

Mr. Kirkpatrick, showing you what's been

10

previously marked as Deposition Exhibit 556, a

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February 21, 2007 e-mail string.

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recognize these e-mails?

Do you

13

A.

Yes.

14

Q.

Were these e-mails that you either sent

15

or received?

16

A.

It appears to be, yes.

17

Q.

And they are true and correct copies?

18

A.

Yes.

19

Q.

And you sent and received them in the

20

ordinary course of your business?

21

A.

Yes.

22

Q.

Can I have you take a look at the top

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e-mail from Mr. Davis --

24

A.

Uh-huh.

25

Q.

-- to among others you?

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Do you see where Mr. Davis is referring to an

2

EA/ESPN on-line initiative and he writes:

It

3

uses currently eligible student-athlete names and

4

warrants a C&D.

Do you see that?

5

A.

I do.

6

Q.

By C&D, does Mr. Davis, is he referring

7

to a cease and desist?

8
9

MR. WIERENGA:
foundation.

10
11

Objection,

THE WITNESS:

I would imagine so.

BY MR. GILMORE:

12

Q.

Does this refresh your recollection of

13

the NCAA voicing a concern about EA animations on

14

ESPN of college football?

15

MR. BRAUNIG:

16

MR. WIERENGA:

17

Foundation, misstates

the --

18

Object to the form.

BY MR. GILMORE:

19

Q.

I'm sorry.

College basketball?

20

A.

Yeah, this is related to basketball, and

21

I cannot recall the -- really the context of what

22

this was about.

23

Q.

So what was the question?

Whether it refreshed your recollection

24

of the NCAA voicing concern about EA animations

25

used by ESPN?

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THE WITNESS:

I would say, I mean,

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I'm familiar with Tim Tebow, and I recog -- and

3

that's the extent of it.

4

MR. ARAGON:

Okay.

5

further questions at this time.

6

I have no

much for your time.

7
8

Thank you very

EXAMINATION
BY MR. WIERENGA:

9

Q.

Good afternoon, sir.

10

Wierenga.

11

My name is Bob

few questions for you.

12

I represent the NCAA and I have just a

You testified this morning about a licensing

13

program that involved Peyton Manning after he

14

graduated in the University of Tennessee.

15

recall that testimony?

Do you

16

A.

I do.

17

Q.

Was the NCAA involved in that licensing

18

program at all?

19

A.

No.

20

Q.

Did the NCAA make any effort to

21

interfere with that licensing program?

22

A.

No.

23

Q.

You also testified earlier today that EA

24

has been in talks with the NFLPA, the NFL Players

25

Association, about potentially using current NFL

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I was contacted by the offices of

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Veritext Reporting to provide court

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reporting services for this deposition.

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I will not be taking this deposition under

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any contract that is prohibited by O.C.G.A.

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15-14-7 (a) or (b).

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I have no written contract to

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provide reporting services with any party

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to the case, any counsel in the case, or

10

any reporter or reporting agency from whom

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a referral might have been made to cover

12

this deposition.

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and customary rates to all parties in the

14

case.

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I will charge my usual

This, the 18th day of November, 2012.

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______________________________
STEVE S. HUSEBY, CCR-B-1372

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My Commission Expires
January 20th, 2015.

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