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 Q

In Re NCAA Student-Athlete, et al.
Damien Rhodes

09-cv-1967-CW
November 15, 2011
Page 1

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

in re NCAA Student-Athlete Name and
Likeness Licensing Litigation

Case No.
09-cv-1967-CW

* MAY CONTAIN CONFIDENTIAL INFORMATION *
- - VIDEOTAPED DEPOSITION OF
DAMIEN RHODES
NOVEMBER 15, 2011
9:00 A.M.

KILPATRICK TOWNSEND & STOCKTON LLP
1100 PEACTHREE STREET, SUITE 2800
ATLANTA, GEORGIA

REPORTED BY:
STEVEN S. HUSEBY, RPR
CCR-B-1372
Designation Color Key
Blue = NCAA Affirm Desigs.
Orange = Pls' Counter Desigs.
Fuchsia = NCAA Rebuttal Desigs

REPORTED BY: Steven S. Huseby, RPR
www.huseby.com
HUSEBY, INC. - 555 North Point Center, E., #403, Alpharetta, GA 30022 [phone]

In Re NCAA Student-Athlete, et al.
Damien Rhodes

09-cv-1967-CW
November 15, 2011
Page 6

1

P R O C E E D I N G S

2

09:06:21

3

THE VIDEOGRAPHER:

This is the

09:06:21

4

beginning of tape number one in the deposition

09:06:28

5

of Damien Rhodes in the matter of in re NCAA

09:06:30

6

Student-Athlete Name and Likeness Licensing

09:06:35

7

Litigation, Case Number 09-cv-1967-CW.

09:06:38

8

Today's date is November 15, 2011.

09:06:45

9

on the monitor is 9:06 a.m.

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My name is John Kreimer.

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videographer.

12

Huseby.

13

The time

09:06:48
I'm the

09:06:53

The court reporter is Steve

We're with Huseby Court Reporting.

09:06:55
09:06:57

Counsel, please introduce yourselves, after 09:07:00

14

which the court reporter will swear in the

09:07:00

15

witness.

09:07:02

16

MR. CURTNER:

Good morning.

I'm

09:07:02

17

Greg Curtner with Miller, Canfield, Paddock

09:07:03

18

and Stone.

09:07:06

19

Collegiate Athletic Association, and I'll be

09:07:07

20

taking the lead on the deposition this

09:07:10

21

morning.

09:07:12

I represent the National

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MR. BRAUNIG:

23

Keker & Van Nest on behalf of Defendant

09:07:14

24

Electronic Arts.

09:07:18

25

MR. HENN:

Warren Braunig from

I'm Charlie Henn with

09:07:13

09:07:18

REPORTED BY: Steven S. Huseby, RPR
www.huseby.com
HUSEBY, INC. - 555 North Point Center, E., #403, Alpharetta, GA 30022 [phone]

In Re NCAA Student-Athlete, et al.
Damien Rhodes

09-cv-1967-CW
November 15, 2011
Page 11

1

A.

Paul.

09:11:39

2

Q.

Paul what?

09:11:40

3

A.

Janette.

09:11:42

4

Q.

And how do you spell that?

09:11:45

5

A.

I can't do it accurately.

09:11:46

6

Q.

Okay.

09:11:52

7

years.

8

A.

Played football.

09:11:59

9

Q.

And if I understand correctly, you

09:12:02

And so that takes us back four

What did you do prior to that?

09:11:56

10

played for the Berlin Thunder in the year

09:12:05

11

2007.

09:12:09

12

A.

Yes.

09:12:11

13

Q.

What is the -- what league does the

09:12:13

14

Berlin Thunder play in?

09:12:17

15

A.

The NFL Europe.

09:12:18

16

Q.

And is NFL Europe affiliated with the

09:12:25

National Football League in the United States?

09:12:28

17
18

A.

Yes.

09:12:31

19

Q.

And how many teams are in NFL Europe?

09:12:33

20

A.

Six.

09:12:38

21

Q.

Do you know what cities they're in?

09:12:45

22

A.

Are you asking in the United States or 09:12:50

23

in Europe?

24

Q.

25

No, in Europe.

09:12:54
Well, I assume NFL

Europe is in Europe, but maybe I'm wrong.

09:12:55
09:12:59

REPORTED BY: Steven S. Huseby, RPR
www.huseby.com
HUSEBY, INC. - 555 North Point Center, E., #403, Alpharetta, GA 30022 [phone]

In Re NCAA Student-Athlete, et al.
Damien Rhodes

09-cv-1967-CW
November 15, 2011
Page 24

1
2

Q.

The -- you said the same brace.

Did

you wear an ankle brace?

09:31:58
09:32:03

3

A.

Yes.

09:32:07

4

Q.

And you -- can you see that in this

09:32:09

5

picture?

09:32:11

6

A.

Yes, I can.

7

Q.

So you can tell that there's something 09:32:13

8

09:32:12

under your black sock that is an ankle brace?

09:32:16

9

A.

That's not a sock, that's the brace.

09:32:20

10

Q.

Oh, I see.

09:32:22

11

Okay.

And did you always

wear that black pull-up ankle brace?

09:32:28

12

A.

Yes.

09:32:34

13

Q.

You played at Syracuse in 2002, 2003,

09:32:42

14

2004 and 2005, is that right?

09:32:51

15

A.

Yes.

09:32:55

16

Q.

Did you actually play all four years?

09:32:59

17

A.

Yes.

09:33:05

18

Q.

You played in more than one game each

09:33:10

19

of your four years, correct?

09:33:12

20

A.

Yes.

09:33:15

21

Q.

And did you wear that ankle brace all

09:33:16

22

four years?

09:33:18

23

A.

No.

09:33:21

24

Q.

When did you start with the brace?

09:33:22

25

A.

After an ankle injury.

09:33:31

REPORTED BY: Steven S. Huseby, RPR
www.huseby.com
HUSEBY, INC. - 555 North Point Center, E., #403, Alpharetta, GA 30022 [phone]

In Re NCAA Student-Athlete, et al.
Damien Rhodes

09-cv-1967-CW
November 15, 2011
Page 30

1
2

Q.

Were you unhappy with the coaching

change at the time?

09:40:28
09:40:30

3

A.

I had my feelings.

09:40:42

4

Q.

And what were they?

09:40:44

5

A.

Personal feelings.

09:40:45

6

Q.

Did you consider transferring at that

09:40:57

7

time?

09:41:09

8

A.

Transferring from Syracuse?

09:41:09

9

Q.

Yes, sir, to a different school.

09:41:11

10

A.

No.

09:41:14

11

Q.

Did you consider trying to declare for 09:41:15

12

the NFL draft and leaving school early?

09:41:18

13

A.

No.

09:41:25

14

Q.

Why not?

09:41:26

15

A.

Just wanted to play one more year.

09:41:32

16

Q.

Did you complete your degree while you 09:41:41

17

were at Syracuse?

09:41:43

18

A.

Yes.

09:41:45

19

Q.

And what is your degree in?

09:41:47

20

A.

Child and family studies.

09:41:51

21

Q.

Did you graduate in December of 2005

09:41:56

22

or in the spring of 2006?

09:42:00

23

A.

Spring '06.

09:42:04

24

Q.

Have you had any formal education

09:42:09

25

since leaving Syracuse?

09:42:15

REPORTED BY: Steven S. Huseby, RPR
www.huseby.com
HUSEBY, INC. - 555 North Point Center, E., #403, Alpharetta, GA 30022 [phone]

In Re NCAA Student-Athlete, et al.
Damien Rhodes

09-cv-1967-CW
November 15, 2011
Page 31

1

A.

No.

2

Q.

Did you get a full scholarship each of 09:42:23

09:42:22

3

the years that you were at Syracuse, '02/'03

09:42:27

4

through '05/'06?

09:42:34

5

A.

For each season --

09:42:36

6

Q.

Yes.

09:42:37

7

A.

-- each school year, rather?

09:42:38

8

Q.

Yes, sir.

09:42:39

9

A.

Yes.

09:42:40

10

Q.

And what is your understanding of what 09:42:41

11

was included in a full scholarship?

09:42:43

12

A.

Free education, football.

09:42:47

13

Q.

But it covered tuition, room and

09:42:59

14

board, books and miscellaneous expenses?

09:43:01

15

A.

Free education and football.

09:43:03

16

Q.

Did you get a good education?

09:43:09

17

A.

I think I'm pretty smart from

09:43:12

18

Syracuse.

09:43:18

19

Q.

09:43:20

And so would it be accurate that you

20

think that Syracuse held up their end of the

09:43:24

21

bargain?

09:43:27

22

A.

Yes.

09:43:27

23

Q.

Were there kids that you went to high

09:43:31

24

school with who weren't maybe quite as

09:43:32

25

talented as you are in terms of academics or

09:43:35

REPORTED BY: Steven S. Huseby, RPR
www.huseby.com
HUSEBY, INC. - 555 North Point Center, E., #403, Alpharetta, GA 30022 [phone]

In Re NCAA Student-Athlete, et al.
Damien Rhodes

09-cv-1967-CW
November 15, 2011
Page 33

1
2
3
4

THE WITNESS:

Went to school.

BY MR. CURTNER:
Q.

09:44:37
09:44:37

When you left Syracuse, did you have

any educational debt?

09:44:41
09:44:43

5

A.

Free education.

09:44:49

6

Q.

Yeah.

09:44:50

7

Did you -- had you had to

borrow any money to go to college?

8

A.

No.

9

Q.

Okay, back to this photograph.

09:44:54
09:44:57
A copy 09:45:00

10

of this was in your possession and -- when you

09:45:08

11

went searching for documents, is that right?

09:45:11

12

A.

I believe so.

13

Q.

And do you know what this stamp on the 09:45:22

14

back means?

It says, return to Syracuse

09:45:28

15

University, photo by Mike Okoniewski, SU

09:45:32

16

Athletic Commission or Committee, and it says

09:45:37

17

the date and the subject and your name.

09:45:43

18

Do you know who Mike Okoniewski is?

09:45:48

19

A.

I don't recall.

09:46:00

20

Q.

Was there an official photographer at

09:46:03

21

Syracuse when you played football there?

09:45:21

09:46:08

22

A.

You see a lot of cameras.

09:46:12

23

Q.

Was there somebody that was around at

09:46:21

24

practice time and media time before game,

09:46:23

25

after game, locker rooms, during the game?

09:46:26

REPORTED BY: Steven S. Huseby, RPR
www.huseby.com
HUSEBY, INC. - 555 North Point Center, E., #403, Alpharetta, GA 30022 [phone]

In Re NCAA Student-Athlete, et al.
Damien Rhodes

09-cv-1967-CW
November 15, 2011
Page 44

1

Q.

Mr. Rhodes, before we took a break I

10:15:17

2

asked you whether you got tutoring and

10:15:20

3

academic counseling while you were a student

10:15:23

4

athlete at Syracuse, and I'm not sure that you

10:15:26

5

answered -- or that we got an answer to that,

10:15:29

6

but you did, is that right?

10:15:31

7

A.

Yes, I received tutoring.

10:15:33

8

Q.

And was that helpful to you as a

10:15:37

9

student?

10:15:39

10

A.

Yes, it was.

10:15:40

11

Q.

What was your grade point when you

10:15:42

12

graduated?

10:15:45

13

A.

I honestly can't recall.

10:15:47

14

Q.

Was it pretty good?

10:15:50

15

A.

I was pleased with it.

16

Q.

Back to this photograph, Exhibit 146,

I didn't fail. 10:15:52
10:15:59

17

without regard to who took it, you understood

10:16:04

18

that there were people taking photographs,

10:16:06

19

some of whom were professional photographers,

10:16:09

20

some of whom may have worked for Syracuse,

10:16:12

21

some of whom worked for the press, and some of

10:16:15

22

whom might have just been fans in the stands,

10:16:17

23

right?

10:16:20

24

MR. BOARDMAN:

25

THE WITNESS:

Objection to form.
Yes.

10:16:20
10:16:22

REPORTED BY: Steven S. Huseby, RPR
www.huseby.com
HUSEBY, INC. - 555 North Point Center, E., #403, Alpharetta, GA 30022 [phone]

In Re NCAA Student-Athlete, et al.
Damien Rhodes

09-cv-1967-CW
November 15, 2011
Page 171

1
2

playing at the time.
Q.

All right.

02:04:47
And you're aware that

02:04:48

3

under the rules they couldn't put the player's

02:04:50

4

name on a jersey for sale while they were an

02:04:53

5

active player?

02:04:57

6

A.

Yes.

02:04:58

7

Q.

And it's also true, is it not, that

02:05:00

8

after you graduated there was no restriction

02:05:03

9

against them selling this same jersey with

02:05:05

your name on it?

02:05:08

10
11

A.

Sure.

02:05:14

12

Q.

And it's also true, is it not, that

02:05:15

13

after you completed your eligibility in

02:05:18

14

football, you could have gone out and made a

02:05:23

15

deal with Nike to sell this jersey and with

02:05:26

16

Syracuse to sell this jersey with your name on

02:05:29

17

it, you could have had a three-way license and

02:05:32

18

you could have gotten some revenue from that?

02:05:36

19

MR. BOARDMAN:

20

THE WITNESS:

Object to form.

02:05:38

I wouldn't even know 02:05:40

21

where to begin to go about that.

02:05:42

22

BY MR. CURTNER:

02:05:42

23

Q.

That's why people get agents, right?

02:05:44

24

A.

Agents, attorneys.

02:05:46

25

Q.

But there was nothing in the NCAA

02:05:52

REPORTED BY: Steven S. Huseby, RPR
www.huseby.com
HUSEBY, INC. - 555 North Point Center, E., #403, Alpharetta, GA 30022 [phone]

In Re NCAA Student-Athlete, et al.
Damien Rhodes

09-cv-1967-CW
November 15, 2011
Page 295

1

C E R T I F I C A T E

2
3
4

G E O R G I A:

5

FULTON COUNTY:

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7
8
9

I hereby certify that the
foregoing deposition was reported, as

10

stated in the caption, and the questions

11

and answers thereto were reduced to the

12

written page under my direction; that the

13

foregoing pages represent a true and

14

correct transcript of the evidence

15

given.

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any way financially interested in the

17

result of said case.

I further certify that I am not in

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Pursuant to Rules and Regulations

19

of the Board of Court Reporting of the

20

Judicial Council of Georgia, I make the

21

following disclosure:

22

I am a Georgia Certified Court

23

Reporter.

I am here as an independent

24

contractor for Huseby, Inc.

25
REPORTED BY: Steven S. Huseby, RPR
www.huseby.com
HUSEBY, INC. - 555 North Point Center, E., #403, Alpharetta, GA 30022 [phone]

In Re NCAA Student-Athlete, et al.
Damien Rhodes

09-cv-1967-CW
November 15, 2011
Page 296

1

I was contacted by the offices of

2

Huseby, Inc. to provide court

3

reporting services for this deposition.

4

I will not be taking this deposition under

5

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

6

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

7

I have no written contract to

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provide reporting services with any party

9

to the case, any counsel in the case, or

10

any reporter or reporting agency from whom

11

a referral might have been made to cover

12

this deposition.

13

and customary rates to all parties in the

14

case.

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I will charge my usual

This, the 21st day of November, 2011.

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17

______________________________
STEVE S. HUSEBY, CCR-B-1372

18

My Commission Expires
January 20th, 2015.

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REPORTED BY: Steven S. Huseby, RPR
www.huseby.com
HUSEBY, INC. - 555 North Point Center, E., #403, Alpharetta, GA 30022 [phone]