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 BB

In Re NCAA Student-Athlete Name, et al.
Danny Wimprine

09-cv-1967-CW
December 2, 2011
Page 1

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

in re NCAA Student-Athlete Name and
Likeness Licensing Litigation

Case No.
09-cv-1967-CW

* MAY CONTAIN CONFIDENTIAL INFORMATION *
- - VIDEOTAPED DEPOSITION OF
DANNY WIMPRINE
DECEMBER 2, 2011
9:00 A.M.

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

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

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

In Re NCAA Student-Athlete Name, et al.
Danny Wimprine

09-cv-1967-CW
December 2, 2011
Page 6

1

P R O C E E D I N G S

2
3
4

THE VIDEOGRAPHER:

Good morning.

5

This is the beginning of tape number one in

6

the deposition of Mr. Danny Wimprine, in the

7

matter of in re NCAA Student-Athlete Name and

8

Likeness Licensing Litigation, Case Number

9

09-CV-1967-CW.

Today's date is December 2,

10

2011.

11

My name is Michael McElroy and I'm the

12

videographer.

13

Huseby.

14

Counsel, please introduce yourselves, after

15

which the court reporter will swear in the

16

witness.

17

The time on the monitor is 9:10 a.m.

The court reporter is Steve

We're with Huseby, Incorporated.

MR. CURTNER:

Good morning.

My

18

name is Greg Curtner.

19

Miller Canfield Paddock & Stone.

20

the National Collegiate Athletic Association.

21

With me this morning is Eric McLand from my

22

office.

23

MR. BOYLE:

I'm a lawyer with
I represent

Peter Boyle with

24

Kilpatrick Townsend & Stockton for the

25

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

In Re NCAA Student-Athlete Name, et al.
Danny Wimprine

09-cv-1967-CW
December 2, 2011
Page 23

1

A.

I don't believe so.

2

Q.

Did you ever think about transferring

3
4
5

while you were at Memphis?
A.

Think about it, yeah, maybe.

not very much.

Probably

Not very long.

6

Q.

What made you think about it?

7

A.

I don't know, not sure now.

8

Q.

You had a successful career at

9

Memphis?

10

A.

Yes, sir.

11

Q.

And did you think about leaving early

12

to declare for the draft?

13

A.

No.

14

Q.

Why not?

15

A.

I wish I had that problem.

I don't

16

think I was at the upper echelon of, you

17

know -- you know, I didn't need to leave to

18

have to make money or anything, so I think I

19

would just rather stay and see how it worked

20

out for me.

21

Q.

Did you get a scholarship at Memphis?

22

A.

Yes, sir.

23

Q.

You got a full scholarship each of the

24
25

four years?
A.

Yes, sir.

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

In Re NCAA Student-Athlete Name, et al.
Danny Wimprine

09-cv-1967-CW
December 2, 2011
Page 24

1

Q.

Did you play all four years?

2

A.

Yes, sir.

3

Q.

So you -- that was one of the

4

attractive things for you is that you got to

5

start as a freshman?

6
7
8
9

A.

Yeah, I red-shirted my first year

though.
Q.

I see.

So you were really there five

years and played four?

10

A.

Yes, sir.

11

Q.

And you got five years of a full

12

scholarship?

13

A.

Yes, sir.

14

Q.

Did you earn your degree while you

15

were there?

16

A.

Yes, sir.

17

Q.

What's your degree in?

18

A.

It's university college, it's sports

19

broadcasting and communications, the title.

20

Q.

And what year did you get your degree?

21

A.

2005.

22

Q.

So in the spring of 2005 is when you

23

graduated?

24

A.

I believe so, yeah.

25

Q.

And that's the same time that you were

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

In Re NCAA Student-Athlete Name, et al.
Danny Wimprine

09-cv-1967-CW
December 2, 2011
Page 90

1

MR. CURTNER:

2

the record.

3

Okay.

We're back on

Let's mark this as next in order,

please.

4

(Exhibit Number 181

5

marked for identification).

6
7

BY MR. CURTNER:
Q.

Mr. Wimprine, I'm showing you what's

8

been marked as Deposition Exhibit 181, which

9

appears to be a 2011 arena football one

10

standard playing -- player contract.

11

You're

familiar with this?

12

A.

Yes, sir.

13

Q.

You signed a version of this that was

14

pertinent to you for the playing year 2011?

15

A.

Yeah, I would have had to.

16

Q.

And do you have a copy of your

17
18
19

particular version of this standard contract?
A.

I don't -- I don't think I do have my

copy.

20

Q.

Who would have it?

21

A.

I guess the league.

22

Q.

But you're sure that you did sign one?

23

A.

I would have had to to play.

24

Q.

And you got the minimum; is that

25

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

In Re NCAA Student-Athlete Name, et al.
Danny Wimprine

09-cv-1967-CW
December 2, 2011
Page 97

1

A.

I'm not sure.

2

Q.

Do you recall ever even thinking about

3

these issues when you signed these contracts?

4

A.

I probably did at the time.

5

Q.

So this says in part, "The player

6

grants to the league the full authority to use

7

his name, signature, likeness and/or picture

8

for all publicity and promotional purposes in

9

newspapers, magazines, motion pictures,

10

trading cards, game programs, roster manuals,

11

all broadcasts and telecasts, and all other

12

publicity and advertising media, whether now

13

known or hereafter devised."

14
15

You were aware that you were giving them
those rights?

16

A.

Yeah, I would think so.

17

Q.

And you thought you had all those

18

rights to grant to them?

19

A.

Yeah.

20

Q.

And it says further, and I'm skipping

21

a sentence, "The player agrees to cooperate

22

with the news media and to participate upon

23

request and without compensation in addition

24

to that which is specified here and in this

25

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

In Re NCAA Student-Athlete Name, et al.
Danny Wimprine

09-cv-1967-CW
December 2, 2011
Page 100

1

contracts?

2

A.

The CFL.

3

Q.

Your agent?

4

A.

He might.

5

Q.

Did you ever sign anything along these

6

lines when you played at Memphis that you

7

remember?

8
9
10

A.

I can't really remember anything like

that.
Q.

Did it ever cross your mind when you

11

were signing these kinds of contracts and

12

assigning these rights as a pro player, that

13

maybe Memphis owned some of these rights and

14

that you needed to get permission from them?

15

MR. CLOBES:

16

THE WITNESS:

17
18

Objection, form.
No.

BY MR. CURTNER:
Q.

The last sentence of this paragraph

19

says, "The player may not," emphasized, "use

20

any intellectual property of the league for

21

any purpose without the prior written consent

22

of the league."

23

A.

24

Q.

25

Do you see that?

(Reading from document...) yep.
Did you have some understanding as to

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

In Re NCAA Student-Athlete Name, et al.
Danny Wimprine

09-cv-1967-CW
December 2, 2011
Page 176

1

CLC has done to you that would have prevented

2

you from licensing the rights to your name,

3

likeness or image?

4

A.

No.

5

Q.

Are you aware of anything any of the

6

defendants have done to you that would have

7

prevented you from selling the rights to your

8

name, likeness or image?

9

A.

No.

10

Q.

Did you ever have plans to try to sell

11

the rights to your name, likeness or image but

12

you changed those plans because of anything

13

CLC did to you?

14

A.

No.

15

Q.

Did you ever have plans to try to sell

16

the rights to your name, likeness or image but

17

you changed those plans because of anything

18

the NCAA did to you?

19

A.

No.

20

Q.

How about EA, did you ever change any

21

plans you had to try to sell your rights to

22

your name, likeness or image but you changed

23

those plans because of anything that EA did to

24

you?

25

A.

No.

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

In Re NCAA Student-Athlete Name, et al.
Danny Wimprine

09-cv-1967-CW
December 2, 2011
Page 196

1

C E R T I F I C A T E

2
3
4

G E O R G I A:

5

FULTON COUNTY:

6
7
8
9

I hereby certify that the
foregoing deposition was reported, as

10

stated in the caption, and the questions

11

and answers thereto were reduced to the

12

written page under my direction; that the

13

foregoing pages represent a true and

14

correct transcript of the evidence

15

given.

16

any way financially interested in the

17

result of said case.

I further certify that I am not in

18

Pursuant to Rules and Regulations

19

of the Board of Court Reporting of the

20

Judicial Council of Georgia, I make the

21

following disclosure:

22

I am a Georgia Certified Court

23

Reporter.

I am here as an independent

24

contractor for Huseby, Inc.

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

In Re NCAA Student-Athlete Name, et al.
Danny Wimprine

09-cv-1967-CW
December 2, 2011
Page 197

1

I was contacted by the offices of

2

Huseby, Inc. to provide court

3

reporting services for this deposition.

4

I will not be taking this deposition under

5

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

6

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

7

I have no written contract to

8

provide reporting services with any party

9

to the case, any counsel in the case, or

10

any reporter or reporting agency from whom

11

a referral might have been made to cover

12

this deposition.

13

and customary rates to all parties in the

14

case.

15

I will charge my usual

This, the 4th day of December, 2011.

16
17

______________________________
STEVE S. HUSEBY, CCR-B-1372

18

My Commission Expires
January 20th, 2015.

19
20
21
22
23
24
25
REPORTED BY: Steven S. Huseby, RPR, CCR
www.huseby.com
HUSEBY, INC. - 555 North Point Center, E., #403, Alpharetta, GA 30022 [phone]