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 AA

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1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3
4
5

IN RE NCAA STUDENT-ATHLETE

) CASE NO.

6

NAME & LIKENESS LICENSING

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

7

LITIGATION

)

8
9
10
11
12

The videotaped deposition upon oral

13

examination of GREG WEITEKAMP, a witness produced

14

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

15

Notary Public in and for the County of Hendricks,

16

State of Indiana, taken on behalf of the

17

Plaintiffs, at the offices of Faegre Baker &

18

Daniels, 300 North Meridian Street, 27th Floor,

19

Indianapolis, Marion County, Indiana, on the 5th

20

day of June, 2012, commencing at 9:45 a.m.,

21

pursuant to the Federal Rules of Civil Procedure

22

with written notice as to time and place thereof.

23

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

24
25

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Greg Curtner.

I'm with the firm of Schiff

2

Hardin, and I represent the National Collegiate

3

Athletic Association.

4

MR. SLAUGHTER:

5

MR. BOYLE:

6

James Slaughter for EA.

Peter Boyle for Defendant

Collegiate Licensing Company.

7
8

GREG WEITEKAMP,

9

having been duly sworn to tell the truth, the whole

10

truth, and nothing but the truth relating to said

11

matter, was examined and testified as follows:

12
13

DIRECT EXAMINATION,

14
15

QUESTIONS BY MR. JON T. KING:
Q

16

Good morning.

Would you state your full name

for the record, please.

17

A

Sure.

Gregory Weitekamp.

18

Q

Have you ever had your deposition taken before?

19

A

No.

20

Q

Have you ever given any kind of sworn testimony

21

to a -- for example, a governmental body or a

22

regulatory body?

23

A

No.

24

Q

Have you ever testified at any sort of criminal

25

or civil trial?

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A

No.

2

Q

I'll give just a couple ground rules that you

3

probably covered with your attorney, but just to

4

make sure we have it on the record.

5

agree that you'll try to give me a verbal

6

response as opposed to just a silent shaking of

7

your head, that type of thing?

Would you

8

A

Yes.

9

Q

And can we agree that we'll try to not talk over

10

each other so we can get a clear record?

11

A

Yes.

12

Q

And will you let me know if you need a break?

13

A

Absolutely.

14

Q

Okay.

And if I ask a question, I'd definitely

15

invite you to clarify it if you need to.

And if

16

you don't ask me to clarify it, is it fair for

17

me to presume that you understood the question?

18

A

Yes.

19

Q

Okay.

20

A

Yes.

21

Q

By who?

22

A

The National Collegiate Athletic Association.

23

Q

And --

24
25

Are you currently employed?

MR. CURTNER:

Can we also agree to go at a

pace that allows me to make objections if I need

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to?

2

THE WITNESS:

Yes.

3

MR. CURTNER:

Thank you.

4

Q

And what is your current title?

5

A

That's an interesting one, because it's changed

6

about eight times.

7

of championships and alliances.

8

Q

9
10

Okay.

But it's currently director

Director of championships and alliances.

And how long have you held that title?
A

11

That title changed approximately eight months
ago.

I've had the title of director since 2006.

12

Q

Okay.

I'm going to try to work backwards --

13

A

Sure.

14

Q

-- chron- -- chronologically.

So you've had

15

that -- that title for about eight months you

16

say?

17

A

Yes.

18

Q

And then what was your title prior to that?

19

A

Director of broadcasting.

20

Q

And how long did you hold the title director of

21
22

broadcasting?
A

23
24
25

Since 2000 -- I think I said '6.

It actually

was the fall of 2005.
Q

And what was your title -- let me back up a
little.

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When did you start working for the
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NCAA?

2

A

December of 2001.

3

Q

So prior to taking the title director of

4

broadcasting in the fall of 2005, what was your

5

title?

6

A

Associate director of broadcasting.

7

Q

And how long did you have that title?

8

A

Two years.

9

Q

And what was your title prior to that?

10

A

Manager of syndication and asset management.

11

Q

And how long did you have that title?

12

A

That was the title I started with at the NCAA,

13
14

so December of 2001.
Q

15

Okay.

Prior to joining the NCAA in December of

2001, were you employed?

16

A

Yes.

17

Q

By who?

18

A

I was employed by the Horizon League.

19

Q

And what is the Horizon League?

20

A

The Horizon League is a Division I athletic

21
22

conference, a member of the NCAA.
Q

23

And are the teams in the Horizon League members
of Division I in men's basketball?

24

A

Yes.

25

Q

And how about football?

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Q

And when did you get that?

2

A

I completed it December of 2009.

3

Q

And where did you get that degree from?

4

A

Butler University.

5

Q

Okay.

6

A

Sure.

7

Q

So now, though, I'd like to drill down a little

8

I appreciate you going over that.

bit deeper on some of those.

And --

9

A

Okay.

10

Q

-- maybe we'll work from present day backwards.

11

So as the director of championships and

12

alliances, could you describe just in -- your --

13

your general responsibilities?

14

more particular later.

15

basis, what are your responsibilities?

And we can get

But just on a broad

16

A

I oversee a department called media services.

17

Q

You over- -- oversee that, did you say?

18

A

Uh-huh.

It consists of three what we call

19

functional areas, one being broadcast and

20

digital rights management.

21

statistics group.

22

coordination group.

23

Q

24
25

The others are our

The third is our media

How many personnel are there in the broadcast
and digital rights management group?

A

There are three associate directors.

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We have

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two contracted production assistants.

2

have -- we share administrative assistants

3

across the board in the media services group.

4

So at any one point in time, up to three

5

administrative assistants are working within the

6

group.

7

Q

8
9

Okay.

And we

And who are the three associate

directors?
A

In order in terms of -- in terms of their

10

tenure, Frank Rhodes, Jeramy Michiaels, and

11

Julie Kimmons.

12

Q

What is the -- the basic function or functions

13

of the broadcast and digital rights management

14

group?

15

A

Basic function of the group is to administer and

16

minister -- and administer, excuse me, our media

17

contracts with Turner Sports, CBS, ESPN, Thought

18

Equity in Motion, Rich Clarkson & Associates,

19

and Dial Global.

20

Q

21
22

Global?
A

23
24
25

What is the contract with -- did you say Dial

Dial Global is a radio network.

They purchased

Westwood One.
Q

In terms of the organizational hierarchy, do you
report to a particular person?

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A

Yes.

2

Q

And can you explain a bit about what type of

3
4

documents you had in mind?
A

We have received their credentialing policies

5

and some of their media policies, specifically

6

highlight usage.

7

Q

Who did you -- well, when you said "we," did you

8

personally receive those, or they came to you

9

from some other person?

10

A

I did receive those.

They did not come

11

directly, though, from the leagues.

They

12

come -- they came from one of our partners.

13

Q

And who was that?

14

A

Turner.

15

Q

Are you familiar with -- now, you said -- you --

16

Which partner?

you have worked -- let me back up.

17

Sorry.

You -- you've interacted with Thought

18

Equity in Motion; correct?

19

A

Yes.

20

Q

Could you describe what their relationship is in

21

a broad way with the NCAA?

22

earlier as a partner.

23

with --

24
25

MR. CURTNER:
Q

You referred to them

What do they partner

Object to the form.

-- the NCAA on?

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MR. CURTNER:

2

step on your question.

3
4

MR. KING:
A

5

I'm sorry.

I didn't mean to

That's all right.

For the record, they -- they have gone through a
recent name change.

6

Q

T3 Media?

7

A

Yes.

Their name is now T3 Media.

Our partnership with Thought Equity is

8

twofold.

9

archive in a digital format.

10
11

No. 1, it's the preservation of our
No. 2, it is the

representation of our archival rights.
Q

And for the representation of the NCAA's

12

archival rights, does T3 Media's role include

13

licensing content to those that might wish to

14

use NCAA content?

15

A

Yes.

16

Q

Has T3 Media used a standard licensing form in

17

your experience for that purpose?

18

A

Yes.

19

Q

Did you have any role in developing whatever

20
21

standard forms they may use for that process?
A

When our partnership started with T3 Media, we

22

provided our licensing form that we were using

23

at the time.

They developed it.

24

reviewed it.

I also looked at it.

25

Q

Our legal

As a part of that process, did you ever have

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occasion to look at what the -- at -- at the

2

professional league's licensing forms for

3

comparison purposes?

4

A

No.

5

Q

Do the NCAA bylaws guide you in any way in terms

6

of your job responsibilities?

7

A

Yes.

8

Q

How so?

9

A

We look at our bylaws in a couple different

10

fashions.

11

national office, the ability to enter into media

12

contracts to represent the membership via

13

championships.

14

in specifically working with our membership

15

services or currently called AMA group in the

16

way that we are simply based upon eligibility.

17

Q

No. 1, our bylaws provide us, the

We also work through the bylaws

Are -- to your knowledge, are those bylaws

18

incorporated by reference in any of the

19

contracts that the NCAA has with its partners?

20

MR. CURTNER:

21

You may answer.

22

A

23
24
25

Object to the form.

Bylaws are not directly referenced.

Rules are,

which indirectly is the bylaws.
Q

Okay.

I'm trying to make sure I understand.

Would -- would rules encompass something in

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addition to the bylaws?

2

A

Sure, playing rules.

3

Q

Anything else that comes to mind?

4

A

No.

5

Q

And -- and how -- how would a contract with a

6

partner -- let -- let's use Turner as an

7

example -- incorporate or reference the NCAA

8

rules?

9

MR. CURTNER:

10
11

Object to the form.

You may answer.
A

Just listed simply that the partner must follow

12

all NCAA rules.

13

conduct their business that would be in a

14

violation of one of those rules.

15

Q

Shall not actively, knowingly

Are there -- going back to my -- my question

16

about the types of documents that would guide

17

you in your responsibilities.

18

addition to the NCAA bylaws, are there formal

19

NCAA policies other than -- I think we spoke

20

about media credentialing ones that guide you in

21

some fashion that you refer to for guidance.

22

MR. BOYLE:

Are there -- in

Object to the form.

23

A

No.

24

Q

Does the NCAA have something called the

25

broadcasting manual?

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A

Yes.

2

Q

Does the NCAA itself measure that?

3

A

We have two different websites, ncaa.org, which

4

the NCAA manages in-house.

Therefore, all the

5

analytics/metrics are provided by the NCAA.

6

website ncaa.com is managed and run by Turner

7

Sports.

8

metrics/data.

The

Turner Sports collects all the

9

Q

Do they share that with the NCAA?

10

A

Yes.

11

Q

On -- on what type of basis?

12

Is it a regular

basis?

13

A

We receive weekly reports.

14

Q

On ncaa.com, are there items for sale?

15

A

Yes.

16

Q

Could you describe in general, general

17

categories?

18

611b

type of things?

19

A

20

Is it apparel, merchandise, what

Yes, apparel, souvenirs, hats.

That's part of

apparel.

21

Q

How about DVDs?

22

A

Yes.

23

Q

Are there clips available for viewing of game

24
25

footage on ncaa.com?
A

Yes.

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Q

Are those currently free to view?

2

A

Yes.

3

Q

Is there advertising on ncaa.com?

4

A

Yes.

5

Q

Can you think of offhand any of the advertisers

6
7

611b

that come to mind that are on there?
A

Sure.

Many of our corporate partners and

8

champions advertise on ncaa.com; Coca-Cola,

9

Capital One, AT&T, to name a few.

10

Q

We were talking a little bit about the

11

preferences of -- of sports fans.

12

it more particular to college sports fans.

13

how -- you mentioned you consider the

14

preferences of sports fans and college sports

15

fans in some way in your job responsibilities.

16

Can you be more particular in terms of how you

17

get information about what the preferences of

18

college sports fans might be?

19

MR. CURTNER:

20

And I'll make
But

You may answer.

21

Q

22
23

Object to the form.

In other words, do you do -- do you have surveys
you look at, or is it kind of anecdotal, or --

A

Yes.

We --

24

MR. CURTNER:

25

You may answer.

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Objection.

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cover all 89.
Q

Okay.

So let me be clear in that.

Are -- are any conferences treated --

3

with that caveat as to some contracts may not

4

cover all championships, but are any -- maybe

5

it's easier if we focus on the current -- the

6

NCAA has a current contract with Turner;

7

correct?

8

A

(Affirmative nod.)

9

Q

And is CBS also a party to that same contract?

10

MR. CURTNER:

Object to the form.

11

A

There's --

12

Q

I'm trying to get at the live -- the current --

13

currently operative live broadcast rights

14

contract.

15

A

There's two contracts with Turner.

There's the

16

Turner/CBS contract, and then there is a

17

contract between us and Turner for digital.

18

Q

For the Turner/CBS contract, is any conference

19

treated differently under that -- that contract

20

as compared to any other conference?

21

MR. CURTNER:

22

MR. KING:

Object to the form.

You can answer.

23

A

No.

24

Q

What does the -- could you describe a little bit

25

about the type of things that are covered in the

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Turner/CBS contract versus the type of things

2

that are covered in the Turner digital rights

3

contract or what falls in which contract?

4

A

Sure.

5
6

MR. CURTNER:
Q

Starting with --

7
8

MR. CURTNER:
Q

9

Object to the form.

You may answer.

Starting with, say, live broad- -- live
broadcasts of games --

10

A

Uh-huh.

11

Q

-- how are those covered in these contracts?

12
13

MR. CURTNER:
A

Same objection.

In the Turner/CBS multimedia agreement, the only

14

championship that is covered as a obligation is

15

the Division I men's basketball championship.

16

Q

17
18

And what's the -- and that's for purely live
broadcasts?

A

For live broadcasts.

And there are some what we

19

would call near live rights as well, meaning a

20

use beyond the live window.

21

Q

What is the -- the time period governed by that

22

current contract?

23

start?

In other words, when did it

When is it envisioned to end?

24

A

The -- in terms of the term or --

25

Q

Right.

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When did it go into effect?
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A

Sure.

The contract went into effect -- that

2

would have been 2000- -- the 2011 tournament, so

3

it would have been 2010-2011, goes through

4

2023-'24.

5

Q

And what's the -- what did Turner and CBS

106

6

collectively commit to pay for the rights to

7

broadcast live games?

8
9

MR. CURTNER:
A

10

Object to the form.

There -- there's other things in the agreement,
so to --

11

Q

Well --

12

A

-- just say the live -- if you're looking for

13

the entire package of what the rights fee is?

14

Q

Yes.

15

A

10.8 billion.

16

Q

What's the difference between live rights and

106

17

near live rights?

18

live rights."

19

what that means?

20

A

Sure.

You used the phrase "near

Can you explain a little more

Live is it's happening right here.

This

21

is happening live.

22

somewhere else, that's -- within five minutes

23

from now, that is near live.

24

once the live window ends, there's another set

25

of, quote/unquote, rights that kind of encompass

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What I just said, post that

So essentially

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the next period of time.
Q

Does the -- the current Turner/CBS contract

3

address in any way the rights to use archival

4

materials?

5

A

Yes.

6

Q

How so?

7

A

It defines how those networks can use archival

8
9

material.
Q

10

And is that meaning the NCAA's archival material
that's preexisting?

11

A

Correct.

12

Q

Can you describe in -- in -- if you have an

13

understanding, in general how that is addressed

14

in the contract?

15

A

Sure.

CBS and Turner can use highlights in an

16

editorial capacity on their own platforms when

17

speaking about men's basketball for the

18

Division I men's basketball championship.

19

Q

What does "editorial capacity" mean?

20

MR. CURTNER:

21

You may answer.

22

A

23

Object to the form.

News and information on fiction, factual
information.

24

Q

News and information about factual --

25

A

Yes.

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Q

-- information?

2

Okay.

Is there some -- so that's editorial

3

capacity.

Is -- is there some other capacity in

4

which they can't use that footage?

5

A

That they can't use it?

6

Q

Correct, cannot.

7

A

They cannot use it in any way to promote or --

8

or -- they can't use it in any commercial way

9

that would promote a product.

10
11

They cannot

sublicense it.
Q

12

Do you consider the NCAA to be a product in any
way?

13

MR. CURTNER:

14

You may answer.

15

A

Object to the form.

The television rights or the television -- a

16

television broadcast, I guess, in a way, no.

17

Let me answer that, no, it's not a product.

18

Q

Do you consider the NCAA to be a brand?

19

MR. CURTNER:

Object to the form.

20

You may answer.

21

A

Yes.

22

Q

And can you expand on that?

23
24
25

MR. CURTNER:
A

How?

Same objection.

Every -- let me put it this way:
organization has a brand.

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Every

They're identified by

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their brand.

2

that we are an organization of higher education

3

that works within athletics that provides

4

opportunities for students to compete on the

5

playing field in athletics and earn that

6

education in the classroom via scholarship.

7

That is the NCAA brand.

8

Q

9

Our brand is based upon the fact

And when you -- is that a phrase that's used
internally in discussing the NCAA brand?

10

MR. CURTNER:

Object to the form.

11

A

Yes.

12

Q

Does the NCAA brandDropped designations at 56:18-57:7. make
-- is that -- I want to
Eliminate counters/rebuttals on pages

13

sure we're being clear on the NCAA itself as
57-59?

14

compared to all the NCAA members.

15

A

Sure.

16

Q

When the NCAA brand is discussed internally, is

17

it focused on just the NCAA itself, meaning the

18

entity that controls the championships that you

19

discussed, or is it broader to be a proxy in a

20

way for college sports in total?

21

A

The NCAA is an association of member

22

institutions and conferences.

23

encompasses those member institutions and

24

conferences.

25

do at the NCAA.

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Our brand

Championships is a part of what we
But it is continuing to provide

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an athletic experience on top of their education

2

as well to exceed and excel on the playing field

3

and also in the classroom.

4

Q

5

Are you involved with discussions about ways to
strengthen the NCAA brand?

6

A

I have been, yes.

7

Q

Can you describe a little bit about those?

8

A

Sure.

9
10

MR. CURTNER:
A

Object to the form.

Our PSA campaign that you may be familiar with

11

would be an example of that, the messaging that

12

comes across within -- within those messages

13

about there's 400- -- 400,000 student-athletes

14

going pro in something other than sports.

15

Q

In your view and experience, does strengthening

16

the NCAA brand improve the NCAA's ability to

17

negotiate higher value contracts with its

18

partners?

19

MR. CURTNER:

Object to the form.

20

You may answer.

21

A

Yes.

22

Q

And how do those things relate?

23

A

The NCAA is a unique organization in that

24

they're a higher education organization with

25

athletics.

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of students that turn into young professionals.

2

That brand is something that a lot of

3

corporations want to be attached to.

4

Q

And -- and how does that desire of corporations

5

to want to be attached to that -- do you mean

6

them in terms of advertisers, potential

7

advertisers that --

8

A

They're providing --

9

MR. CURTNER:

Object to the form.

10

You may answer.

11

THE WITNESS:

Sorry.

12

A

13

Thank you.

Our sponsors, our corporate champions and
partners, yes.

14

MR. CURTNER:

Jon, when you get to a change

15

of subject or a breaking point, maybe it's an

16

appropriate time for a --

17

MR. KING:

18

MR. CURTNER:

19

THE VIDEOGRAPHER:

20

Okay.

This is a good time.

-- a break.

Okay.

Thanks.

We're off the record.

Local time is 10:52 a.m.

21

(A recess was taken.)

22

THE VIDEOGRAPHER:

23

We're back on the record

at 11:03 a.m.

24

BY MR. KING:

25

Q

Prior to becoming the director of championships

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Q

And at the time -- well, when they last had

2

involvement with running the website, was it

3

called CSTV at that time?

4

A

No, CBS College Sports Network.

5

Q

Okay.

I was hoping you'd say CSTV.

6

easier for me to say.

7

That's

just CBS.

8

I'll call them, I guess,

Was it -- with respect to editorial content

9

versus commercial content, was it also -- just

10

like it's Turner's decision now, was it CBS's

11

decision at that point?

12

MR. CURTNER:

Object to the form.

13

A

Yes.

14

Q

Does the NCAA itself have policies on what is

15

considered editorial versus commercial?

16

MR. CURTNER:

17

Objection, asked and

answered.

18

You may answer.

19

Q

You can answer if you -- we've covered how --

20

A

Sure.

21

Q

-- cur- -- currently it's Turner deciding.

In

22

the past it was CBS deciding.

23

understand if the NCAA has its own policies that

24

it might need to look to in any particular

25

circumstance as to what's editorial versus

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2

commercial.
A

In terms of defining it between editorial and

3

commercial, there is no -- nothing specifically

4

in place.

5

Q

Have -- have you ever had to weigh in personally

6

on a judgment or -- or give counsel or guidance

7

as to whether you think something is editorial

8

versus commercial?

9

A

Yes.

10

Q

On roughly how many occasions?

11

A

Honestly, I don't know.

12

Q

Would you say quite a few, or is it very rare?

13

A

I'd say more than a few.

14

Q

And do you recall sort of what -- what you would

15

look to to form your decisions or guidance on

16

that?

17

materials or talk to others, or how would you

18

formulate your thoughts on that?

19

A

In other words, did you have some written

In many instances, we're looking at eligibility,

20

in that regard, and so we would consult the

21

membership services AMA group on certain

22

elements of that.

23

in terms of standard practice.

The other places really just

24

Q

And what's "standard practice" mean?

25

A

Very simply, what is editorial?

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2

news and information platform.
Q

3

So standard, not -- not just within the NCAA,
but standard meaning in --

4

A

Yes.

5

Q

-- a broader way?

6

A

Yes.

7

Q

And what -- just to make sure we're talking the

8

same language, what would be -- what -- would

9

there -- would there be a particular industry?

10

Would it be the entertainment industry or the

11

way professional sports does it, or what would

12

be looked to to decide what is standard?

13

A

It would be the -- really the news and

14

information industry; the newspapers, television

15

stations, other websites.

16

Q

Did you ever have occasion to weigh in about

17

issues about advertising done in conjunction

18

with editorial use in association with it or

19

proximity to it?

20

MR. CURTNER:

Object to the form.

21

You may answer.

22

A

Yes.

23

Q

Can you describe the -- the type of issues that

24
25

you recall coming up in that context?
A

I'll provide an example.

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A

Yes.

2

MR. KING:

3

Okay.

Next exhibit, please,

287.

4

(Deposition Exhibit 287 marked for

5

identification.)

6

Q

Do you recall seeing this document before?

7

A

Same answer, in terms of top of mind, no.

But

8

anything that's attributed to my name, I would

9

have seen at some point.

10

Q

It's a press release dated May 23rd, 2007,

11

titled "Thought Equity Motion Now Offers

12

Licensing Rights and Clearances, Expertise to

13

Its Customers."

14

it has a quote attributed to you.

And the fourth paragraph down,

15

A

Uh-huh.

16

Q

It says, "The video content within our library

17

contains some of the best conceptual footage

18

available across 23 sports and 88 NCAA

19

championships.

20

demonstrate teamwork, challenges, sportsmanship,

21

and achievement.

22

champions and partners are drawn to make these

23

connections in their advertising and

24

promotions."

25

Our N- -- our championships

And our NCAA corporate

Do you agree with the sentiments expressed

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or attributed to you there?

2

A

Yes.

3

Q

Then the next quote in that same paragraph, it

4

says, "Because of the complexities of the rights

5

and clearance as related to current NCAA

6

student-athletes, individuals' likeness, and

7

institutional trademarks, it has been difficult

8

for our partners to utilize and leverage these

9

great moments in sports competitions."

10

Do you agree with that statement attributed

11

to you?

12

A

Yes.

13

Q

Could you explain a little bit about what is

14

meant there by "the complexities of the rights

15

and clearances"?

16

MR. CURTNER:

17

You may answer.

18

A

Object to the form.

There's two aspects of it.

No. 1, there are

19

eligibility concerns that certainly we have that

20

our partners are -- have the experience to at

21

least help describe.

22

when it comes to eligibility on our behalf, but

23

they can help describe those to partners.

24
25

They don't make decisions

And then in terms of the latter part of it,
which is the use of one's likeness, we do not

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give the rights to use anyone's likeness.

2

Thought Equity in part put this group in place

3

to help serve as not only our partners but other

4

partners out there to go out and clear likeness

5

associated with the commercial use of the video.

6

Seeking out individuals' likeness is

7

complex and takes time.

8

want to do that, so they like to have a third

9

party do it on their behalf.

10

Q

Most corporations don't

And is it your understanding that process would

11

need to occur if the usage is going to be

12

commercial versus editorial?

13

A

Correct.

14

Q

When --

15

MR. KING:

16
701

17

One moment.

I'm just checking

my monitor here.
Q

When you said in your answer, "we do not give

18

the rights to use anyone's likeness," are you

19

speaking just about the licensing that Thought

20

Equity is involved in?

21

does give the right to use likenesses in its

22

broadcast contracts; is that true?

23
24
25

MR. CURTNER:
A

In other words, the NCAA

Object to the form.

There's -- the broadcasting of an event, there's
no consent to get one's likeness.

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We are not

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701

1

conceding anyone's likeness in any of our

2

agreements.

3

Q

Wait, I'm sorry.

Let me -- I'm not sure I

4

understand that.

So if -- and I know I switched

5

gears on you.

6

A

Uh-huh.

7

Q

But I want to make sure.

8

Going back to the

broadcast contracts --

9

A

Uh-huh.

10

Q

-- with CBS --

11

A

Correct.

12

Q

-- and Turner, Turner and CBS have the rights to

13

broadcast and film and record the likenesses of

14

the performers, right --

15

A

Yes.

16

Q

-- for the purposes of their broadcast?

17

A

Yes.

18

MR. CURTNER:

19

MR. KING:

20
21

Object to the form.

Sorry.

I just wanted to

clarify.
Q

But when it comes to the commercial use -- maybe

22

we can -- let me read the next quote from you.

23

"But by outsourcing the rights and clearances

24

function to Thought Equity Motion, it allows our

25

corporate champions and partners like AT&T, The

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A

2
3

No.

I would need to probably see an example of

how it's being described.
Q

Let me see if it's worth doing here.

Okay.

4

Okay.

It's a one-pager, so this ...

5

MR. KING:

6

(Deposition Exhibit 292 marked for

7
8

Let's mark this 292, please.

identification.)
Q

9

Do you -- this is an e-mail from 2003.

Do you

happen to recall this e-mail?

10

A

I do.

11

Q

You do.

12

Okay.

Well, it's an e-mail from Greg Millard to

13

Matt Kauffman.

You're one of the cc's.

14

A

Yes.

15

Q

And if you look in the last line, the author

16

indicates -- he says, "I have cc'd Greg

17

Weitekamp from the NCAA who provided us with

18

much of the guidance listed and would ask that

19

he weigh in if anything is not clearly stated or

20

106

if he has anything to add."

21

Do you see that?

22

A

Uh-huh.

23

Q

And where I got the -- the line "sponsored

24

content" is the second bullet point there under

25

internet usage.

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And it says, "As long as GM is

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not branded into the play or clip online, e.g.,

2

onscreen guide, there will not be restrictions

3

online as it is considered sponsored content as

4

106

opposed to a commercial."

5

Do you see that?

6

A

Uh-huh.

7

Q

Does that help you understand the context a

8

little bit of what "sponsored content" would --

9

would mean?

10

A

Sure.

11

Q

And is that a phrase that -- is that not

12

commonly used?

13

Is that why it wasn't familiar?

MR. CURTNER:

Object to the form.

14

A

It's -- it's not one that is commonly used, no.

15

Q

And do you see under eligibility issues, it

16

says, "Do not use players younger than five

17

years old in order to ensure that there are no

18

eligibility concerns"?

19

A

Yes.

20

Q

And then the last paragraph, it says, "Hopefully

21

this provides clarification.

22

there is no hard and fast -- hard and fast set

23

of rules, but the N- -- NCAA was confident

24

that -- that these parameters had been

25

successful to date in protecting parties using

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footage," et cetera.

2

Do you see that?

3

A

Uh-huh.

4

Q

Do you recall -- does this refresh your memory,

5

were these parameters that the NCAA used to deal

6

with corporate requests to use footage?

7

MR. CURTNER:

8

You may answer.

9

A

Object to the form.

These were essentially guidelines or practices

10

that we provided for corporations to take into

11

consideration.

12

that we were not providing by any means saying

13

that we represent the rights to these

14

individuals.

15

Q

The key element in this case is

Go back to -- it says, "The sponsored content as

16

opposed to a commercial."

That's where I'm not

17

asking it very well, but I'm trying to

18

understand.

19

there that "sponsored content" means one thing,

20

but "a commercial" means something else.

It seems like there's a distinction

21

A

Sure.

22

Q

Is that -- is that a distinction that you deal

23

with?

24

What --

25

A

I'm trying to understand it more.

Sure.

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Q

What's the difference?

2

A

I'll provide an example perhaps to better -- to

3

best clarify what -- I believe in this segment

4

when they're using the term "sponsored content,"

5

what it meant.

6

terms of sponsored content likely meant a banner

7

within the page of this segment or feature that

8

was being produced.

9

pre-roll ad of a product prior to a highlight

10

What they were referring to in

Could have also included a

clip.

11

A commercial would be the sense of which

12

the images of a particular athlete are being

13

used within the context of the product or a

14

commercial of the product.

15

Q

16
17

Could you explain a little more what pre-roll ad
means or --

A

Sure.

A pre-roll is a standard advertising

18

mechanism within digital technology for clips

19

that you would see or editorial stories that are

20

online.

21

5- to 30-second ad that would run before it,

22

generally dips to black, and then the story

23

appears.

24
25

Q

And there would be a -- anywhere from a

And is there other terms for -- if -- well, I
guess that -- does that -- in your experience,

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would the ads ever appear in the middle, or is

2

it -- is pre-roll basically the only term?

3

There's no middle equivalent or end equivalent?

4

A

You can insert ads within, but it's generally

5

based upon the length of the program.

6

instance, if it was a 30-minute program -- and

7

we're specifically talking about an online

8

program -- you may see, somewhere between five

9

and ten minutes, a advertisement within the

10

So, for

middle of that to break it up.

11

And then in some cases, there's called a

12

post-roll, which isn't used very often anymore,

13

because generally once the content is over,

14

people quit watching it.

15

advertisement at the end of the segment.

16

Q

But it was a

And -- and what you've described with the

17

pre-roll advertisement, if there's a pre-roll ad

18

and then footage follows from that, in your

19

experience, is that considered editorial by the

20

NCAA, editorial use of that footage?

21
22

MR. CURTNER:
A

Yes.

Object to the form.

Our legal counsel had advised that that is

23

more of an editorial use protected under

24

copyright.

25

Q

Do you -- do you think former players have

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consented to their images being used in that

2

editorial use type of way you just described

3

there?

4

MR. CURTNER:

5

a legal opinion.

6

You may state your understanding if you

7
8

Object to the form, calls for

have one.
A

I do not have an understanding.

9

MR. KING:

10

Okay.

Next document, 292,

please.

11

THE REPORTER:

12

MR. KING:

13

(Deposition Exhibit 293 marked for

14

293.

I'm sorry, 293.

identification.)

15

Q

This is a short one.

16

A

Uh-huh.

17

Q

Do you happen to recall this e-mail?

18

A

Yes.

19

Q

And it's an e-mail dated February 6th, 2003,

20

from you to Kellie Carroll.

21
22

And who is Ms. Carroll?
A

I honestly do not remember who she was.

She --

23

based upon the -- she was somebody that worked

24

at Kraft, account rep.

25

Q

And it says -- starts, "Kellie" -- from you to

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her, "Kellie, The NCAA authorizes Kraft Foods,

2

as an NCAA corporate partner, the right to use

3

the NCAA copyrighted footage for a promotion on

4

the planters.com website."

5

Do you see that?

6

A

Uh-huh.

7

Q

Is -- does the NCAA make some distinction

8

that -- between corporate partners and

9

noncorporate partners that -- is it only the

10

corporate partners that are allowed to use

11

NCAA-controlled footage for promote -- for

12

advertising purposes?

13

A

A -- best way of answering that is is 90 to

14

95 percent for advertising purposes would be

15

used from our corporate champions and partners.

16

There are some what we call white label clips

17

which you cannot identify anything to do with

18

the event.

19

looked at the footage, whether or not it was

20

from an NCAA event or any other sporting event

21

that may be used by other folks.

22

recognizable as an NCAA championship, we would

23

not license that to nonchampions and partners.

24
25

Q

You wouldn't even know, if you

But if it's

How many roughly, at the present time, champions
and partner companies are there?

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A

2

There's three champions and eight or nine
partners, without counting them up.

3

Q

Who -- who are the champions?

4

A

Coca-Cola, AT&T, and Capital One.

5

Q

And on the partners, the other group, do -- do

6

those include the Turner and ESPN, the ones we

7

talked about earlier, or are there -- are these

8

different partners?

9

A

10
11

No, these are different partners.

Turner, CBS,

ESPN would be considered our media partners.
Q

On -- then on these eight or nine other

12

partners, can you just give me some of the names

13

so I can get an idea of who they are?

14

A

15
16

Sure.

Reese's would be one.

Northwestern

Mutual, UPS.
Q

Are those champions and partners the companies

17

that would be authorized to use footage online

18

with -- with the pre-roll advertising or the

19

banner advertising that we talked about?

20

A

Would they be authorized?

They have the right

21

to use it, meaning that they have -- they would

22

be granted permission, but they still have to

23

clear the use of the copyright through T3 Media.

24
25

Q

Is it correct those partners and champions get
a -- do they get that footage free or at a

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reduced rate as compared to others that might

2

request it?

3

A

Yes, they receive it at a reduced rate.

4

Q

The last line of this e-mail, you say, "All

5

other aspects of the footage with the exception

6

of" -- well, let me read -- I don't want to be

7

accused of being incomplete.

8

"Please note the NCAA does not own the likeness

9

to the individuals featured on the footage and

So you first say,

10

does not have the ability to give the

11

individuals' consent."

12

other aspects of the footage with the exception

13

of announce calls and graphics are owned by the

14

NCAA."

15

Last sentence says, "All

I think that -- is it right that you

16

probably meant "announcer calls" there?

17

A

Yes.

18

Q

Okay.

I wasn't clear on the distinction.

If

19

the NCAA owns the footage, why don't they have

20

the right to use the -- from what you say here,

21

the announcer calls and graphics?

22

A

There was a -- within our previous agreement, so

23

not our current agreements, there was a

24

distinction made between parties related to

25

announcer calls and graphics being owned by the

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networks versus as part of the copyright itself.

2

That has since changed.

3

Q

And how has it changed?

4

A

That there's no dispute in that, that we as part

5

of the work, the entire work, have the ability

6

to use announcer calls and graphics.

7

Q

8

Are the announcers members of a union to your
knowledge or something?

9

A

I do not know.

10

Q

Do you have any understanding if they get -- if

11

under the old arrangement at least they get

12

royalties of some type for the use of their

13

voices?

14

A

I do not know.

15
16

MR. SLAUGHTER:
Q

Object to the form.

What -- what do you have to do -- or what does a

17

company have to do to become a NCAA corporate

18

champion or partner?

19

A

They would work with Turner and CBS, who own the

20

rights to the corporate champion partner

21

program, and they would work out an agreement

22

with those entities.

23

Q

Would those entities to your understanding

24

that -- pay money to Turner and CBS to have that

25

status?

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who was being depicted on the front, was in

2

violation of that bylaw.

3

Q

To be more specific, what do you think about his

4

point that the NCAA has received revenues up

5

front, which he says at the time that it was

6

6 billion, that includes, among other things,

7

the sale of future DVDs?

8

his assessment there is correct in that

9

statement?

10

A

Do you think that's --

Well --

11

MR. CURTNER:

12

You may answer.

13

A

Object to the form.

-- the reality is is we didn't receive 6 billion

14

up front.

That's -- so that point is not

15

accurate.

We received partial of 6 billion up

16

front.

17

yearly payment.

18

for -- and CBS had the right to produce a DVD as

19

part of their rights fee payment.

20

Q

21

And within that, those are based upon a
And it was part of the rights

Does the NCAA have any type of business
relationship with Sports Illustrated?

22

A

No.

23

Q

Has it ever considered that type of a

24

relationship, to your knowledge, to make a

25

product, to be more specific?

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A

No.

2

Q

Does --

3

A

Not to my knowledge.

4

Q

Does the -- I mean, does the NCAA have any

5

position about if student-athletes should be

6

appearing on covers of publications like Sports

7

Illustrated or any of the other major national

8

publications like that?

9

MR. CURTNER:

10
11

Object to the form.

You may answer.
A

I don't want to speak on behalf of the entire

12

organization, but the fact is is that those

13

magazines are considered to be editorial, and,

14

therefore, their image being depicted upon an

15

editorial publication would fall within fair

16

use.

17

Q

And "fair -- fair use," to clarify, is a --

18

A

Media -- the media having -- they shoot the

19

picture.

20

their purposes.

21

Q

22

They have the ability to use it for

And is -- is it your understanding that's a
legal concept that's been --

23

A

Yes.

24

Q

-- developed?

25

A

I do my best to describe it, but I am not a

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A

We did.

2

Q

How -- I thought -- to reconcile that, I thought

3

the NCAA didn't get involved in likeness

4

clearance.

5

through Thought Equity somehow?

6

A

Did this -- does it mean it went

No, not if we're -- our agency that was creating

7

our own commercials -- and it wasn't a matter of

8

the use of their likeness.

9

that we were clearing, and they needed to

They were actors

10

provide us their clearance of likeness.

11

So for this instance, when we were

12

producing our own spots that involved actors,

13

we -- or the agency that is creating them on our

14

behalf, would have to make sure that they have

15

signed away our ability to use them in this

16

spot.

17

Q

When you say they were actors, does that mean

18

they got paid for the use of their likeness; is

19

that your understanding?

20

A

Yes.

Well, let me take that back.

I don't know

21

if they got paid or not.

That would have been

22

another group that made that decision.

23

honestly don't know.

24

MR. KING:

25

I

(Deposition Exhibit 300 marked for

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300, please.

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identification.)

2

A

We did not wrap it up within two to three weeks.

3

Q

Does this e-mail look familiar to you?

4

A

It's more -- again, reading it, I recall the

5

time period and providing updates related to

6

contract status.

7

Q

8

And it's an e-mail you sent Tuesday, June 1st,
2010 --

9

A

Uh-huh.

10

Q

-- to Ronnie Ramos, who you mentioned before,

11
12

and then Brad Alderson.
A

13
14

Who's Mr. Alderson?

Brad Alderson is our former managing director of
IT.

Q

And in the e-mail you're discussing some

15

dealings with Turner.

16

was this about the -- the status of negotiations

17

on the digital rights agreement or --

18

A

Yes, it was.

19

Q

Okay.

Can you tell from this,

And the part I wanted to focus on --

20

well, you seem to indicate it didn't wrap up as

21

soon as anticipated here.

22

When did it finally get done?

This was June 2010.

23

A

We executed the agreement in September.

24

Q

And in the middle of the first paragraph of your

25

e-mail, you say, "There are a few legal nuances

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as well, such as Turner asking the NCAA to rep

2

that we can use student-athlete likenesses for

3

any use on the digital platform.

4

we simply cannot agree to that.

5

fairly big one for Turner, one we cannot back --

6

back off of or compromise on without putting the

7

NCAA at risk."

8

As you know,
This point is a

Do you see that?

9

A

Uh-huh.

10

Q

And I've seen some other e-mails on that, but I

11

think we can just stick with this one.

12

have -- can you explain a little bit, if you

13

recall, what was the issue there, and then how

14

did it get resolved, if it did, by the time of

15

the contract?

16

A

Sure.

Do you

Turner wanted us to represent that we

17

could represent the likeness of

18

student-athletes, and we do not, and we cannot.

19

Q

And did they subsequently agree to accept the

20

NCAA's position on that and -- and the contract

21

was signed in accordance with what the NCAA

22

wanted?

23

A

Yes.

24

Q

And you'd agree, so we don't have to pull up a

25

contract, it speaks for itself?

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Whatever it

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A

I would not.

2

Q

Okay.

3

A

Because that could be anybody in a fictional

4
5

And how come?

sense.
Q

Fair enough.

6

Can you use the names and likenesses of

7

student-athletes to promote a commercial

8

product?

9

MR. CURTNER:

Object to the form.

10

A

No, from -- from an eligibility standpoint.

11

Q

Okay.

12

A

It violates bylaw 12.5.

13

Q

And what is that violation?

14

A

The violation is is they're not permitted to

Why not?

15

be -- their name and likeness is not permitted

16

to be used in association with a commercial

17

product.

18

Q

Okay.

I've paraphrased 12.5.

When you say a promotion of a commercial

19

product, what do you -- what do you mean by

20

that?

21

A

A --

22

MR. SLAUGHTER:

23

MR. ARAGON:

24
25

A

Object to the form.

You can answer.

A commercial product, anything from a product
itself.

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Products come in lots of different
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forms.

2

of some sort.

3

clothing.

4

Q

Okay.

So it could be, like I said, a beverage
It could be a toy.

It could be

Those are all products.

So can we agree that a student-athlete

5

cannot promote an NCAA video game by appearing

6

in an advertisement for that game?

7

MR. SLAUGHTER:

8

MR. CURTNER:

9

A
Q

Okay.

Object to the form.

Yes.

10

Object to the form.

Now, what if they -- let's just assume

11

that they are in the video game, the

12

student-athletes, current student-athletes.

13

Would that be a promotion of the video game, and

14

would that be prohibited or not?

15

MR. CURTNER:

16

MR. SLAUGHTER:

Object to the form.
Join.

17

A

First of all, they're not in the video game.

18

Q

I understand.

19
20

Let's assume that they are,

though.
A

So if -- if, in fact, they were current

21

student-athletes, and a current student-athlete

22

was on the cover, that it would not be -- to my

23

knowledge, would not be permissible.

24

would need an interpretation from our membership

25

services group to provide that.

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STATE OF INDIANA

)
)

2

COUNTY OF HENDRICKS

SS:

)

3
4

I, Debbi S. Austin, RMR, CRR, a Notary

5

Public in and for the County of Hendricks, State of

6

Indiana, at large, do hereby certify that GREG

7

WEITEKAMP, the deponent herein, was by me first

8

duly sworn to tell the truth, the whole truth, and

9

nothing but the truth in the aforementioned matter;

10

That the foregoing videotaped deposition was

11

taken on behalf of the Plaintiffs at the offices of

12

Faegre Baker & Daniels, 300 North Meridian Street,

13

27th Floor, Indianapolis, Marion County, Indiana,

14

on the 5th day of June, 2012, commencing at

15

9:45 a.m., pursuant to the Federal Rules of Civil

16

Procedure;

17

That said deposition was taken down in

18

stenograph notes and afterwards reduced to

19

typewriting under my direction, and that the

20

typewritten transcript is a true record of the

21

testimony given by the said deponent; and that the

22

signature of said deponent to his or her deposition

23

was requested;

24
25

That the parties were represented by their
counsel as aforementioned.

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I do further certify that I am a

2

disinterested person in this cause of action, that

3

I am not a relative or attorney of either party, or

4

otherwise interested in the event of this action,

5

and that I am not in the employ of the attorneys

6

for any party.

7

IN WITNESS WHEREOF, I have hereunto set my

8

hand and affixed my notarial seal on this 15th

9

day of June, 2012.

10
11
12

N O T A R Y

P U B L I C

13
14

My Commission Expires:

15

July 16, 2015

16

County of Residence:

17

Hendricks County

18
19
20
21
22
23
24
25

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