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).

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EXHIBIT W HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 1 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 ______________________________ ) 5 ) NAME & LIKENESS LICENSING 6 IN RE NCAA STUDENT-ATHLETE ) LITIGATION No. 4:09-cv-1967 CW ) ______________________________) 7 8 9 10 11 12 13 14 15 - HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY VIDEOTAPED DEPOSITION OF TODD W. SITRIN 16 San Francisco, California 17 Friday, January 25, 2013 18 Volume I 19 20 21 Reported by: 22 SUZANNE F. BOSCHETTI 23 CSR No. 5111 24 25 212-279-9424 Designation Color Key Blue = NCAA Affirm Desigs. Orange = Pls' Counter Desigs. Fuchsia = NCAA Rebuttal Desigs VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 11 1 counsel for EA. 2 3 MR. WAHL: for the NCAA. 4 5 Suzanne Wahl from Schiff Hardin MR. HENN: Charles Henn on behalf of Collegiate Licensing Company. 6 VIDEO OPERATOR: Thank you. Our court 7 reporter today is Suzanne Boschetti. At this time 8 will the reporter please swear the witness. 9 10 TODD W. SITRIN, 11 having been administered an oath, was examined and 12 testified as follows: 13 14 15 VIDEO OPERATOR: Thank you. Please proceed. 16 17 18 EXAMINATION BY MR. MEDICI: 19 Q Good morning. 20 A Good morning. 21 Q Would you please state your full name for 22 the record. 23 A Todd Wolf Sitrin. 24 Q And can you spell that, please? 25 A S-i-t-r-i-n. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 27 1 inclusive of the products within all of EA Sports. 2 BY MR. MEDICI: 3 Q What titles were there? 4 MR. SLAUGHTER: 5 THE WITNESS: Objection. Many titles. Overbroad. Again from year 6 to year it would change but inclusive of the titles 7 developed in Orlando and Canada. 8 BY MR. MEDICI: 9 10 Q So from 2007 to the present, you've had responsibility over the NCAA Basketball franchise? 11 MR. SLAUGHTER: Objection. 12 assumes facts not in evidence. 13 THE WITNESS: Misstates -- I would say that I had people 14 reporting to me who were responsible for those 15 products. 16 BY MR. MEDICI: 17 Q The same question for football. Have you 18 had responsibility for marketing the NCAA Football 19 franchise from 2007 to the present? 20 21 MR. SLAUGHTER: Same objection. You can answer. 22 THE WITNESS: Same answer, which is I've 23 had people reporting to me who were responsible for 24 the marketing of those products. 25 BY MR. MEDICI: 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 28 1 Q And from 2001 to 2007, did you have 2 responsibility for marketing the NCAA Football 3 franchise? 4 A As in my role of product marketing, I was 5 responsible for the product marketing aspects of 6 NCAA Football. 7 Q Did your role grow in 2007? 8 A My -- can you be more specific about -- 9 Q You mentioned that your job title changed 10 in this reorganization. 11 A Mm-hmm. 12 Q Did you have additional responsibilities at 13 that point? 14 A Yes. 15 Q What were they? 16 17 MR. SLAUGHTER: answered. 18 Objection. Asked and You can answer. THE WITNESS: There was an increase in the 19 number of franchises because I was now responsible 20 for all of the EA Sports properties. 21 included an increase in our research and consumer 22 insights organization. 23 It also There has subsequently been digital 24 marketing aspects that have been added to -- to my 25 responsibilities as well as partnership marketing 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 61 1 finish his answers, too, please. 2 3 MR. MEDICI: Sure. BY MR. MEDICI: 4 Q And what is a likeness? 5 A A likeness is a, you know, photographic 6 face for a person. 7 MR. SLAUGHTER: And I object belatedly 8 to the -- that that question calls for a legal 9 conclusion. 10 11 12 BY MR. MEDICI: Q anything else that a likeness is? 13 14 Outside of a photographic face, is there MR. SLAUGHTER: Objection. Calls for a legal conclusion. 15 THE WITNESS: My understanding is that a 16 likeness is the photographic representation of a 17 face. 18 BY MR. MEDICI: 19 Q 20 21 Would skin tone be part of a likeness? MR. SLAUGHTER: Objection. Calls for a legal conclusion. 22 THE WITNESS: I -- my knowledge is that a 23 likeness is a photographic representation of a face. 24 BY MR. MEDICI: 25 Q 212-279-9424 Were likenesses ever used in any of the VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 62 1 NCAA video games? 2 3 MR. SLAUGHTER: legal conclusion. 4 Objection. Calls for a You can answer. THE WITNESS: Photographic likenesses of 5 faces were never used, to my knowledge, in NCAA 6 Football. 7 BY MR. MEDICI: 8 9 10 Q you say the most important features of the NCAA Football games are over time? 11 12 From a marketing perspective, what would MR. SLAUGHTER: Objection. Over broad. Vague and ambiguous. 13 THE WITNESS: It's an extremely broad 14 question, but I would say trying to represent the 15 college experience and trying to represent the team 16 nature of the individual colleges in terms of how 17 they play their game. 18 tradition are probably the most important parts. 19 BY MR. MEDICI: 20 Q Is accuracy important? 21 MR. SLAUGHTER: 22 THE WITNESS: 23 And the atmosphere and Objection. Vague. Accuracy of what? BY MR. MEDICI: 24 Q All those things you just mentioned, the -- 25 A It's -- we strive for authenticity at EA 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 63 1 Sports. 2 3 So trying to be authentic is important. Q Is "it's in the game" EA's logo or its slogan? 4 A It is a tag line, and it has varied over 5 time, but the current manifestation is "it's in the 6 game." 7 Q What was it before that? 8 A "If it's in the game, it's in the game." 9 Q Has it changed -- 10 A It's changed over time to "it's in the 11 game." I apologize. 12 13 MR. SLAUGHTER: You guys got to -- BY MR. MEDICI: 14 Q There hasn't been anything else besides "if 15 it's in the game, it's in the game" or "it's in the 16 game"? 17 18 A To my knowledge, no, those are the only Q And is that -- is that an internal motto as two. 19 20 well, or is that just a tag line for marketing 21 purposes? 22 A I don't know what an internal motto would 23 be. 24 extensively over the years. 25 It is a tag line that we've used externally Q 212-279-9424 Is it a tag line used internally? VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 67 1 more plays, we've had more logos. 2 those aspects to the game because of the technology; 3 therefore, I would say that it is more authentic. 4 BY MR. MEDICI: 5 Q We've had more of Over time do you -- do you feel that the 6 players' avatars, aside from the likenesses as 7 you've defined it, have become more realistic? 8 MR. SLAUGHTER: 9 THE WITNESS: Object to the form. I actually cannot speak to 10 the individual aspects of that part of the game 11 development because I'm not involved in it. 12 BY MR. MEDICI: 13 Q And you don't use that as a marketing tool? 14 A Not to my knowledge, no. 15 Q Do you think it would be easier to sell the 16 games if you had the names on the back of the 17 players' jerseys? 18 MR. SLAUGHTER: 19 THE WITNESS: 20 Object to the form. MR. SLAUGHTER: What does that mean? It means you can answer the 21 question. 22 proper question. 23 and lacks foundation, but you can answer to the best 24 you can. 25 I'm objecting. I think it calls for speculation THE WITNESS: 212-279-9424 I don't think it's a I believed that if we did VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 70 1 player's likeness would add to the authenticity and 2 profitability of a sports video game? 3 MR. SLAUGHTER: 4 foundation. 5 Objection. compound. 6 Calls for speculation. Lacks THE WITNESS: And it's I believe that if we had 7 player likeness, which is a photographic 8 representation of the face, in our games, that 9 there's the opportunity that we might have had 10 greater sales. 11 BY MR. MEDICI: 12 Q And in your role as -- in your marketing 13 role from 2007 forward, did you do anything to get 14 the name and the likeness, as you've defined it, to 15 get greater sales? 16 17 MR. SLAUGHTER: We're now limiting ourselves to the NCAA games, right? 18 MR. MEDICI: 19 THE WITNESS: Yes. With regard to the NCAA 20 games, I made -- I can recall three presentations in 21 an attempt to see if we could secure player names 22 and likenesses. 23 BY MR. MEDICI: 24 25 Q Did you do anything else aside from those three presentations? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 130 1 2 3 4 5 6 about. Q That is what I'm asking about. I'm asking about your recollection. A So I do not recollect -- recall what was the specifics of the morning executive session. Q After the morning executive session, if you 7 flip to the next page ending in 49, from 11:45 to 8 1:30 there's a working lunch meeting, and from 2:00 9 to 2:30 there's a wrap-up and follow-up goals. 10 11 12 13 Do you see that you're a participant in both of those meeting schedule items? A I see that my name is listed in -- in both of those -- 14 Q Do you remember -- 15 A -- portions. 16 Q Sorry. 17 Do you remember participating in those 18 sessions? 19 A Again, I remember going to Indianapolis to 20 present to the NCAA. I do not remember the 21 specifics of each part of the day. 22 (Deposition Exhibit 929 marked by the court 23 reporter.) 24 25 BY MR. MEDICI: Q 212-279-9424 The court reporter has handed you a VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 131 1 relatively large document bearing the Bates stamp 2 EA0026930, ending in 27015. 3 It's Exhibit 929. Please take a moment to review this 4 document, and let me know when you've had a chance 5 to look it over. 6 MR. SLAUGHTER: Carmen, I'll just note for 7 the record that pages 1 through 58 of this deck I am 8 familiar with it. 9 exhibit before. It's obviously been a depo I've seen this document before. 10 But you've also attached behind that a bunch of 11 other documents that -- I mean, what -- you can ask 12 the witness the questions, but don't appear to be 13 related. 14 why you put these together as one document. 15 Maybe they are. And I just want to know Do you have reason to believe that they are 16 one document? 17 consecutive -- and I see that they're consecutively 18 Bates labeled, but obviously lots of things are 19 consecutively Bates labeled. 20 I mean, just because they're MR. MEDICI: Yeah. I'd like to know if 21 this is the underlying data that was relied on to 22 create the presentation. 23 24 MR. SLAUGHTER: Okay. Well, you -- why don't you -- 25 THE WITNESS: 212-279-9424 I'll get there. VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 132 1 MR. SLAUGHTER: 2 THE WITNESS: 3 4 5 -- look at it. Okay. BY MR. MEDICI: Q Have you had a chance to review Exhibit 929? 6 A I have. 7 Q Do you recognize this document? 8 9 10 MR. SLAUGHTER: that the question implies that it's one document. I don't think that we've established that it is. 11 12 I'll state my objection THE WITNESS: I recognize the PowerPoint portion of the document. 13 MR. MEDICI: So I'll -- I'll represent for 14 the record that this is a few documents that are put 15 together. 16 presentation. 17 something else, but it was produced to us in this 18 order. 19 BY MR. MEDICI: 26987 is the ending of the PowerPoint The remainder of the document is 20 Q Would you please flip to page 26988. 21 A 26988? 22 Q Yes. 23 MR. SLAUGHTER: This page? This one? The 24 first page, substantive page past the PowerPoint 25 document? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 134 1 2 not final about this presentation? A I don't have a recollection of every 3 version that I may have gone through at that time, 4 so I can't tell you. 5 6 7 Q Was this the presentation that was made at the Indianapolis meeting referenced in Exhibit 928? A The dates coincide between the date of the 8 meeting and the date on the title page, so I will 9 assume that the answer is yes. 10 11 Q Do you remember any of the attendees at this meeting? 12 A I do. 13 Q Who was there? 14 A Myself, Joel Linzner, Larry Probst, Nancy 15 Smith, Myles Brand and the other names that are on 16 the agenda that you just showed me ten minutes ago, 17 but I don't remember those names specifically. 18 19 20 Q Do you -- you do specifically remember them being there, though? A 21 Who? MR. SLAUGHTER: Exactly. I'm sorry. 22 as to who. 23 Vague specifically -- I'll let him testify. 24 25 He listed the people who he THE WITNESS: Yes, I listed the names of the people I personally remember being there. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 136 1 anybody else at the meeting specifically. 2 Q Was there anybody else in the room? 3 A There were many people in the room. 4 Q More than 15? 5 A I have -- I have no exact memory of the 6 number of people that were in the room. 7 8 Q Do you know what the college basketball partnership is? 9 A No, not specifically. 10 Q Did you take notes at this meeting? 11 A I have no idea if I took notes or not. 12 Q Do you customarily take notes when you go 13 to meetings? 14 15 MR. SLAUGHTER: Objection. Vague. Overbroad. 16 THE WITNESS: 17 is. 18 It depends what meeting it BY MR. MEDICI: 19 20 But, yes, I take notes at meetings. Q Turning to Exhibit 929, I can represent to you that this came from your custodial files. 21 MR. HENN: 22 MR. MEDICI: 23 24 25 All of them? Yes, all of it. BY MR. MEDICI: Q What was the purpose for which you prepared this presentation? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 139 1 2 3 4 5 6 Q Do you remember anyone in specific that asked you any questions? A Well, I don't remember any specific person asking me questions. Q Do you remember any -- remember any specific questions? 7 A No. 8 Q Can you please turn to page 45 in the 9 10 PowerPoint. It ends in the Bates No. ending in 74. The first bullet point reads: 11 "No player names and likenesses." 12 And then it has three sub points. 13 14 Can you tell me what you meant by that bullet point? A The deck references several times that -- 15 that as we move into next generation, there's a 16 desire for greater authenticity; that the NCAA games 17 did not have player names, nor did it have 18 likenesses; and because our Madden NFL games and our 19 NBA Live professional games had both player names 20 and likenesses, meaning the facial representation, 21 photographic representation of the face, they had a 22 tremendous competitive advantage versus their 23 college counterparts. 24 25 So, for instance, when a quarterback would drop back in -- in Madden, it would be Peyton 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 140 1 Manning. 2 his name. 3 generic quarterback 18, and it would not have a 4 face. 5 example of LeBron James. 6 It would have his face, and it would have But in our college game, it would be a And the same thing with basketball with the So it was showing the disparity between the 7 games in which we had no player names or likenesses 8 and the ones in which we did, meaning the 9 professional ones. 10 11 Q Do you agree that the second bullet point stands for the same idea? 12 MR. SLAUGHTER: 13 THE WITNESS: 14 Vague. I can describe what I think the second point -- 15 Objection. BY MR. MEDICI: 16 17 18 Q Please -- please do. Sorry, I was just trying to shortcut that. A The second bullet point is referring to the 19 fact that our brand, as you asked earlier, has a tag 20 line of "if it's in the game, it's in the game," 21 meaning if it's in the real world of sport, then it 22 is inside of our video game. 23 And what was very obvious to consumers and 24 media and retailers is that as it related to our 25 NCAA game, that the real world was not being 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 141 1 replicated because we did not have player names or 2 likenesses. 3 As a result of that, consumers had a 4 limited or less emotional connection to the game, 5 and they felt like they were playing, and they were 6 playing with fantasy players, and, therefore, as the 7 next generation technology continued to advance 8 greater reality, the NCAA games, because we didn't 9 have players' names or the player likenesses, would 10 fall further and further behind, and that would hurt 11 the sales potential for the product. 12 13 14 Q Why would you share this information in slide 45 of this deck with the CLC and the NCAA? A We were proposing to them that there would 15 be a new way in which we would work, meaning that we 16 would -- we were desiring to have player names and 17 likenesses, and we were illustrating an advantage if 18 we had that. 19 product that would have greater sales would be of 20 interest to them. 21 22 Q And it was our belief that having a Why would having a product that would have greater sales be of interest to the NCAA? 23 MR. SLAUGHTER: Objection. 24 foundation. 25 based upon your knowledge. 212-279-9424 Calls for speculation. Lacks You can answer VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 142 1 THE WITNESS: Based upon my knowledge of 2 working with licensors, of which we pay a royalty, 3 they normally are interested in greater revenue. 4 I learned at this meeting, they were not. 5 not their primary reason. 6 BY MR. MEDICI: 7 Q A I do not know. 9 Q That was Was it a secondary reason? 8 As Flip to the next page, please. 10 11 12 Do you know where the underlying information came from to make slide 46? A I don't know specifically, but I assume it 13 was either quantitative and/or qualitative research 14 done on the previous year's game. 15 16 Q request? 17 18 And would this have been done at your MR. SLAUGHTER: Objection. Calls for speculation. 19 THE WITNESS: It would have been done at 20 the request of people who were managing the NCAA 21 business directly. 22 BY MR. MEDICI: 23 24 Q Do you have any reason to doubt that these numbers are accurate? 25 MR. SLAUGHTER: 212-279-9424 Objection. Vague and VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 143 1 ambiguous. 2 Lacks foundation. THE WITNESS: I have no reason to believe 3 that this customer survey that's cited had those 4 numbers on it -- within them. 5 BY MR. MEDICI: 6 Q 7 8 9 10 MR. SLAUGHTER: Slide 48 you mean? BY MR. MEDICI: Q Slide 48. It's a Bates No. ending in 26977. 11 12 Can you flip ahead to page 48. What does this slide represent? A This section of the presentation was trying 13 to show that this was not just EA saying that people 14 demand -- there would be greater demand. 15 trying to illustrate through many different aspects, 16 consumer quotes, research, etc., retailers, college 17 player -- former college players, etc., that there 18 was a desire by consumers to have real player names 19 and likenesses. 20 This was This particular slide was to show that 21 people were going to great extents to have this in 22 the games, and I was showing it as an extreme way to 23 show the interest in this type of capability in the 24 games which we didn't have. 25 Q 212-279-9424 Did EA ever try to stop people from VERITEXT REPORTING COMPANY www.veritext.com 106; 402 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 144 1 downloading rosters? 2 3 106; 402 MR. SLAUGHTER: foundation. 4 Objection. Lacks Calls for speculation. THE WITNESS: I don't know what action we 5 may have taken, but clearly I was informing the NCAA 6 and CLC of its existence. 7 106; 402 BY MR. MEDICI: 8 Q Can you flip to the next page. 9 Do you know where these quotes came from, 10 how they ended up in your PowerPoint presentation? 11 A I believe that these are all at the time 12 professional football players who we had a 13 relationship through, through the Madden game, and I 14 think we went out and asked them their opinion as 15 recent student athletes but currently professional 16 athletes what they thought about this topic. 17 18 19 Q talking to these athletes? A 20 21 Do you know who's -- who's reaching out and My guess would be our -MR. SLAUGHTER: to guess or speculate. 22 THE WITNESS: I don't think he wants you If you have a reason -Sorry. I have a reason -- I 23 have a reason to believe it was our director of 24 athlete relations. 25 BY MR. MEDICI: 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 147 1 I remember that I went to Indianapolis with 2 Joel Linzner, Larry Probst and Nancy Smith and that 3 I made a presentation. 4 BY MR. MEDICI: 5 Q And that Myles Brand was there? 6 A And I remember Myles Brand being there. 7 8 MR. MEDICI: Can we go off the record for a minute? 9 VIDEO OPERATOR: This marks the end of disk 10 No. 2 in the deposition of Todd Sitrin. 11 1:45 p.m., and we're off the record. 12 (Recess.) 13 VIDEO OPERATOR: The time is This marks the beginning 14 of disk No. 3 in the deposition of Todd Sitrin. 15 The time is 2:01 p.m., and we are back on the record. 16 (Deposition Exhibit 930 marked by the court 17 reporter.) 18 19 BY MR. MEDICI: Q The court reporter has handed you what has 20 been marked as Exhibit 930. 21 attachment beginning with Bates No. EA0192807. 22 It is an email and an Have you had a chance to review this 23 document? 24 A I have. 25 Q Can you identify for the record what this 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 148 1 2 document is? A It is an email exchange between Erika 3 Austin at the NCAA and Joel Linzner and Steve Chiang 4 with an attachment of a letter from Erika on 5 follow-up correspondence to the April 15 meeting. 6 7 8 9 10 11 Q Is this the type of email you would receive in the regular course of business? A I would receive emails from Steve Chiang and Joel Linzner. Q Do you have any reason to doubt that you received this email? 12 A I don't. 13 Q Does the attachment refresh your 14 recollection that Erika Austin was at the April 15th 15 meeting? 16 A No, it does not. 17 Q The very top email from Steve Chiang, 18 104a; 402 you're cc'd on the email, he says: 19 "Here is some of the stuff the NCAA 20 would like us to do in an effort to push 21 their brand so we can get player names." 22 Where did that idea come from? 23 MR. SLAUGHTER: 24 THE WITNESS: 25 Chiang. 212-279-9424 Objection. Foundation. You'd have to ask Steve I didn't write that email. VERITEXT REPORTING COMPANY www.veritext.com 104a; 402 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 149 1 2 BY MR. MEDICI: Q I'm not talking about the email in 3 particular. 4 email, in particular, the "in an effort to push 5 their brand so we can get player names." 6 any internal discussions about this -- this 7 trade-off that's described here in the second half 8 of Steve Chiang's email? 9 10 I'm talking about the idea behind the MR. SLAUGHTER: Objection. Were there Vague. Assumes facts. 11 THE WITNESS: Yeah, I don't -- I don't -- I 12 wouldn't characterize it as a trade-off, nor would 13 I -- nor do I remember any such trade-off language 14 being spoken at EA. 15 BY MR. MEDICI: 16 17 18 Q Do you remember at all any effort to push their brands so that EA could get player names? A I remember that at the April 15th meeting 19 it became clear that what was of very high 20 importance to the NCAA was the promotion of their -- 21 their values, their core values, and that they asked 22 us and subsequently I remember that we added many 23 different features to the game that had -- that were 24 aligned with those core values. 25 Q 212-279-9424 And in your recollection, was that VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 150 1 something that you were pushing so that you could 2 get player names in the EA line of NCAA Sports 3 games? 4 5 MR. SLAUGHTER: Same objection. Overbroad. Vague. 6 THE WITNESS: I didn't see a direct 7 connection. I saw that we were asking the NCAA per 8 the presentation on April 15th that we were 9 interested in getting player names and likenesses. 10 They were asking for us to do several things that 11 they wanted. 12 to Joel to say here are the things that are 13 important to us. 14 BY MR. MEDICI: 15 Q 16 And this was a formal note from Erika here? 17 Do you disagree with what Steve Chiang said MR. SLAUGHTER: 18 foundation. 19 Objection. Lacks BY MR. MEDICI: 20 21 Q Vague. In the second half of the sentence in particular where -- 22 MR. SLAUGHTER: 23 THE WITNESS: Sorry. Go ahead. I don't agree that there was 24 a direct connection between the two. 25 we were asking for the rights to have player names 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com I agree that 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 151 1 and likenesses, and I agreed with the fact that the 2 NCAA showed that -- at the April 15th meeting that 3 what was of top importance to them was to promote 4 their core values. 5 BY MR. MEDICI: 6 7 Q the EA and the NCAA continued their communications? 8 9 Would you say after the April 15th meeting MR. SLAUGHTER: Objection. Vague. Overbroad. 10 THE WITNESS: Communications relative to 11 what? We have, in the course of business, 12 communications between EA Sports and the teams at 13 Tiburon and NCAA and CLC. 14 BY MR. MEDICI: 15 Q Regarding follow-up to that meeting? 16 A I don't remember specific correspondence. 17 Q Who's -- this very top email -- 18 19 dbaker@videobicycling? A 20 Baker. 21 used. 22 Q My belief would be is that that's Dan I don't know why that was the email address Okay. You can set that aside. 23 (Deposition Exhibit 931 marked by the court 24 reporter.) 25 THE WITNESS: 212-279-9424 Okay. VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 159 1 of 2006? 2 MR. SLAUGHTER: 3 ambiguous. 4 Objection. Vague and lacks foundation. 5 It's unintelligible as phrased. THE WITNESS: And The NCAA doesn't tell me 6 about their conversations, so the answer would be 7 no. 8 BY MR. MEDICI: 9 Q You didn't hear it from any coworkers at 11 A I don't remember specifically. 12 Q Do you remember generally? 13 A It's very clear that from April 15th and 10 EA? 14 onward, we were discussing the -- you know, the 15 ability to get player names and likenesses in NCAA. 16 So the fact that we may have discussed it at that 17 time would not surprise me. 18 specific set of conversations. 19 Q But I do not remember a Did you have the sense that internally the 20 NCAA was supportive of EA's efforts to be able to 21 use the names and likenesses? 22 23 MR. SLAUGHTER: ambiguous. 24 25 Objection. Vague and Lacks foundation. THE WITNESS: I knew that over a period of time we made -- I made personally three 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 160 1 presentations to the NCAA and/or CLC trying to get 2 player names and likenesses and that each time we 3 never did. 4 we were not getting player names and likenesses. 5 BY MR. MEDICI: 6 Q So I guess my conclusion would be that Did you have anything, aside from conduct, 7 to base that conclusion on; any kind of 8 communications, emails, conversations with people at 9 the NCAA or any other communications? 10 11 A I had very little conversations directly. It was mostly in the form of presentations. 12 (Deposition Exhibit 933 marked by the court 13 reporter.) 14 (Deposition Exhibit 934 marked by the court 15 reporter.) 16 17 BY MR. MEDICI: Q 18 19 22 Yes -- MR. SLAUGHTER: Hang on. The December 1 is 933 and December 11 is 934. 20 21 All right. THE WITNESS: Okay. BY MR. MEDICI: Q The court reporter has handed you Exhibits 23 933 and 934. 24 the Bates number on Exhibit 933? 25 A 212-279-9424 Can you please read into the record EA0144165. VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 182 1 Q 2 3 Okay. You can set that aside. Are you familiar with a partnership between EA and CBS Sports to promote NCAA Football 10? 4 MR. SLAUGHTER: 5 THE WITNESS: 6 7 Objection. I'm not. BY MR. MEDICI: Q Who would be? 8 MR. SLAUGHTER: 9 THE WITNESS: 10 Assumes facts. Objection. Assumes facts. I would assume people who work directly on the marketing of NCAA Football 10. 11 (Deposition Exhibit 938 marked by the court 12 reporter.) 13 THE WITNESS: 14 15 Okay. BY MR. MEDICI: Q The court reporter has handed you what's 16 been marked Exhibit 938. 17 attaching a PowerPoint presentation, bearing the 18 Bates stamp EA0017312. 19 20 21 It's a one-page email Could you please identify this document for the record? A It is an email exchange between Joel, 22 Jordan and myself concerning NCAA Basketball and 23 Football with an attached PowerPoint from the 24 presentation I made in April of 2005. 25 Q 212-279-9424 Do you remember sending this email? VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 183 1 A I don't. 2 Q Do you remember discussing about just -- 3 excuse me. 4 5 Do you remember discussing the issue -let's do it this way. 6 7 Can you tell me what the -- what this email you sent is about? 8 MR. SLAUGHTER: 9 MR. MEDICI: 10 THE WITNESS: You mean the top email? Yes. The top email is referring -- 11 well, I've been requested by Jordan, who was looking 12 at how to analyze the potential impact with player 13 names and likenesses on NCAA Basketball. 14 reaching out to me to see if I had done anything. 15 responded that I had not done anything in a hard 16 core way. 17 years previously, which was to look at player names 18 and ratios. 19 ratios in different categories to try to understand 20 the impact that it might have. 21 He was I And I shared with him what I had done two Sorry, to look at pro and college But it's very clear that I knew that it was 22 a -- analysis was probably a stretch. 23 the very high analysis, and I referred to the fact 24 that they didn't laugh me off the stage, so I 25 obviously understood that it was rough at best. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com I called it But 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 184 1 it was the best that I could come up with. 2 BY MR. MEDICI: 3 Q 4 You wrote: 602 "With regard to the exclusive, 2K 5 will, of course, throw money at NCAA and 6 will make the case that their games are 7 better than EA's. 8 from several meetings with the NCAA, 9 making more money isn't high up on their As I've learned now 10 list of things they desire. 11 promoting NCAA values is high up on 12 their list." 13 However, You said you had several meetings with the 14 NCAA. 15 from the two that we've discussed earlier? 16 A Can you remember any other meetings now aside No, I can't. And I may have been using the 17 term "meetings" in a very loose term meaning 18 conversations, emails or phone calls. 19 Q Do you have any idea why this issue came to 20 the forefront again in July of 2007, over two years 21 since the last time -- or since you gave the 22 presentation that's attached? 23 24 MR. SLAUGHTER: foundation. 25 Lacks Calls for speculation. THE WITNESS: 212-279-9424 Objection. Which issue? VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 223 1 Would you like to go off? 2 MR. MEDICI: 3 No, that's okay. We can just -- 4 5 6 7 EXAMINATION BY MS. WAHL: Q Mr. Sitrin, my name is Suzanne Wahl, and 8 I'm here from the NCAA today, and I just have a few 9 more questions for you. 10 11 Does EA include photos of athletes on the cover of its NCAA-themed video games? 12 A We include photos on the cover. 13 Q Do you know if those athletes are current 14 15 16 17 18 or former student athletes -A They're all -- they're all -- sorry. Complete your question. Q I was just going to say on the NCAA video games. 19 A Yeah, they're all former athletes. 20 Q Do you know, does NC -- does -- excuse me, 21 -- did EA enter into agreements with those former 22 student athletes who appear on the cover of the 23 NCAA-themed video games? 24 25 A We have an agreement or arrangement with those former athletes. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 224 1 Q Does EA pay those former student athletes? 2 A Yes. 3 Q And what does EA pay them for? 4 MR. MEDICI: Objection. 5 MR. SLAUGHTER: 6 THE WITNESS: You can answer. We pay them for their time, 7 their assistance in the PR of our products and any 8 other sort of marketing activities related to their 9 association with us. 10 BY MS. WAHL: 11 Q So it's more than just for the photograph? 12 A Absolutely. 13 Q Is the NCAA involved at all in the 14 transaction between the former student athletes who 15 appear on the covers and EA? 16 A No. 17 Q Is -- is the CLC involved in those 18 transactions? 19 A No. 20 Q Is the amount paid to each former student 21 athlete the same or does it vary from athlete to 22 athlete? 23 A It varies from athlete to athlete. 24 Q What causes the amount of money to differ? 25 A It would differ based upon the type of 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 225 1 marketing use of that athlete. 2 if we were going to use something more in our PR, we 3 would pay them more. 4 of the relevancy of that athlete at the time, 5 popularity, for instance, where we might pay more 6 for a more poplar athlete. 7 Q It would also -- so It would also differ in terms Do you know if those agreements are 8 directly with the former student athletes or could 9 they be, for example, through the NFL PA? 10 MR. MEDICI: Object to form. 11 THE WITNESS: I don't know specifically. I 12 know that some of them were directly with the -- the 13 players, but I don't know specifically. 14 BY MS. WAHL: 15 16 17 Q Do you know if the terms of all those agreements were the same or if they varied? A The terms would vary. As I mentioned 18 before, there would be different amounts that would 19 be paid as well as different requests for their 20 time. 21 MS. WAHL: 22 MR. SLAUGHTER: 23 Thanks. I have a few questions, follow-up questions. 24 25 That's all I have. MR. HENN: You want to switch sides so the video -- 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 234 1 college players. 2 3 Why not? MR. SLAUGHTER: Objection. Misstates his testimony. 4 THE WITNESS: I said that we -- the 5 question that was asked was whether we had used any 6 current student athletes or former athletes. 7 that we've only used former. 8 BY MR. MEDICI: 9 10 Q I said Is payment feasible to college players on a group license basis? 11 MR. SLAUGHTER: 12 foundation. 13 Objection. conclusion. 14 15 16 Calls for speculation. Lacks THE WITNESS: Calls for legal My understanding is no. BY MR. MEDICI: Q 17 Why not? MR. SLAUGHTER: 18 foundation. 19 Objection. Lacks speculation. 20 21 22 23 24 25 Calls for legal conclusion. THE WITNESS: Calls for The NCAA rules. BY MR. MEDICI: Q In your marketing role, have you ever reviewed one of the cover athlete's contracts? A At some point, yes, I probably looked at them, but usually it was a summary of the deal terms 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 240 1 I, the undersigned, a Certified Shorthand 2 Reporter of the State of California, do hereby 3 certify: 4 That the foregoing proceedings were taken 5 before me at the time and place herein set forth; 6 that any witnesses in the foregoing proceedings, 7 prior to testifying, were duly sworn; that a record 8 of the proceedings was made by me using machine 9 shorthand which was thereafter transcribed under my 10 direction; that the foregoing transcript is a true 11 record of the testimony given. 12 I further, certify I am neither financially 13 interested in the action nor a relative or employee 14 of any attorney or party to this action. 15 16 IN WITNESS WHEREOF, I have this date subscribed my name. 17 18 Dated: February 5, 2013 19 20 _________________________ SUZANNE F. BOSCHETTI 21 CSR No. 5111 22 23 24 25 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430

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