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 AA Page 1 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 25 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 7 1 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? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 8 1 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 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 9 1 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. 212-279-9424 When did you start working for the VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 10 1 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? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 13 1 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. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com We have 212-490-3430 Page 14 1 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? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 30 1 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? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 31 1 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 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 32 1 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 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 33 1 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? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 40 1 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. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 41 1 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. 212-279-9424 Objection. VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 52 1 2 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 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 53 1 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. 212-279-9424 When did it go into effect? VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 54 1 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 212-279-9424 What I just said, post that So essentially VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 55 1 2 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. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 56 1 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. 212-279-9424 Every They're identified by VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 57 1 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. 212-279-9424 Our brand Championships is a part of what we But it is continuing to provide VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 58 1 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. 212-279-9424 And that goes towards the education VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 59 1 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 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 74 1 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 212-279-9424 And I'm trying to VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 75 1 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? 212-279-9424 Editorial is a VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 76 1 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. 212-279-9424 Banner advertising on VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 95 1 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 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 96 1 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 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 97 1 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. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com We are not 212-490-3430 Page 98 701 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 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 131 1 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. 212-279-9424 And it says, "As long as GM is VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 132 1 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 212-279-9424 As you can see, VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 133 1 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. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 134 1 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, 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 135 1 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 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 136 1 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 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 137 1 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? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 138 1 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 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 139 1 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 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 140 1 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? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 150 1 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? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 151 1 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 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 190 1 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 212-279-9424 300, please. VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 191 1 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 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 192 1 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? 212-279-9424 Whatever it VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 201 1 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. 212-279-9424 Products come in lots of different VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 202 1 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. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com But I 212-490-3430 Page 233 1 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. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 234 1 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 25 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430

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