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 W

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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

)

______________________________)
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8
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10
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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
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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.

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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:

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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

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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

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Were likenesses ever used in any of the
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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

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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

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Is it a tag line used internally?
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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:

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I don't think it's a

I believed that if we did

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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?

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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
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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.

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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?

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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.

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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?

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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

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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

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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

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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:

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Objection.

Vague and

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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

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Did EA ever try to stop people from
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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:

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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

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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.

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Objection.

Foundation.

You'd have to ask Steve

I didn't write that email.
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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

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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

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I agree that

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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:

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Okay.

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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

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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.
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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

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Do you remember sending this email?
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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.

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I called it

But

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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:

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Objection.

Which issue?

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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.

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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

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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 --

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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

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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

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