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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CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 1 1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 2 3 IN RE NCAA STUDENT-ATHLETE Case No. 4:09-cv-1967 CW NAME & LIKENESS LICENSING 4 LITIGATION __________________________/ 5 6 7 CONFIDENTIAL - ATTORNEYS' EYES ONLY 8 VIDEOTAPED DEPOSITION OF PAT BATTLE 9 June 19, 2012 10 9:06 a.m. 11 Kilpatrick Townsend & Stockton, LLP 12 1100 Peachtree Street, NE 13 Suite 2800 14 Atlanta, Georgia 15 16 17 Kristine A. Bokelmann, RDR, CRR, CCR-B-2148 18 19 20 21 22 Designation Color Key Blue = NCAA Affirm Desigs. Orange = Pls' Counter Desigs. Fuchsia = NCAA Rebuttal Desigs 23 24 25 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 9 1 THE VIDEOGRAPHER: We're now on the record. 2 Please note that the microphones are sensitive and may 3 pick up whispering and private conversations. 4 turn off all cell phones and place them away from the 5 microphones, as they can interfere with the 6 deposition's audio. 7 parties have agreed to go off the record. 8 9 Please Recording will continue until all My name is Harris Bitman representing Veritext. Today's date is June 10 19th, 2012, and the time is approximately 9:06 11 a.m. 12 This deposition is being held at 13 Kilpatrick Townsend located at 1100 Peachtree 14 Street, Atlanta, Georgia, and this is being 15 taken by counsel on behalf of the plaintiffs. 16 The caption of the case today is in Re: 17 Student-Athlete Name and Likeness Licensing 18 Litigation. 19 NCAA This is filed in the United States 20 District Court for the Northern District of 21 California, Oakland Division, Case No. 22 4:09-CV-1967 CW (NC). 23 today is Pat Battle. 24 25 The name of the witness At this time the attorneys present in the room and attending remotely will 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 14 1 2 3 BY MR. PAYNTER: Q Sorry. Can you just say that again. I didn't hear the answer. 4 A That's correct. 5 Q Okay. And since learning of this 6 litigation, have you received any voice mails from 7 anyone about this litigation other than your 8 attorneys? 9 A No. 10 Q And other than your attorneys, did you speak 11 with anyone to prepare for this deposition? 12 A No. 13 Q And did you review any documents to prepare 14 for this deposition? 15 MR. BOYLE: You can answer that, but I'm 16 going to caution you, don't disclose any substance 17 about the communications we've had or disclose the 18 documents that you were shown by counsel. 19 THE WITNESS: 20 discussed with counsel. 21 Yes, documents that I've BY MR. PAYNTER: 22 Q Any other documents? 23 A No. 24 Q Let's talk a little bit about the Collegiate 25 Licensing Company. 212-279-9424 This is an entity that your VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 15 1 father, Bill Battle, founded; is that correct? 2 A Yes. 3 Q And when did he found the CLC? 4 A 1981. 5 Q And when did you become employed at the CLC? 6 A 1983. 7 Q And what positions did you -- well, strike 8 that. 9 10 What position did you hold in 1983? A was. I don't remember what the position There were three employees at the time. 11 Q Okay. 12 A So it was a lot of positions. 13 Q Right. And at the time did you receive any 14 ownership interest in the Collegiate Licensing 15 Company? 16 17 A I had ownership interest from day one from 1981. 18 Q And what was that ownership interest? 19 A I don't recall exactly. 20 21 22 I think it was around six percent. Q And did that change over time or did that stay consistent? 23 A It changed over time. 24 Q And so by the time -- well, strike that. 25 The CLC was purchased by IMG in 2007; is 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 16 1 that right? 2 A Yes. 3 Q And at the time of the purchase, what was 4 5 your ownership interest in the CLC? A I don't remember exactly. I think 6 it was around -- there were stock options and 7 other things that came into play, but it was 8 around 17, 18 percent. 9 Q And after the purchase of the CLC by IMG, am 10 I correct that you then became a senior vice president 11 at IMG College? 12 A Yes. 13 Q And how long did you remain in that 14 position? 15 A Approximately three years. 16 Q And do you remember when your, I guess, 17 official last day was? 18 MR. BOYLE: 19 THE WITNESS: 20 Official last day was June 30th of 2011. 21 Objection to form. BY MR. PAYNTER: 22 23 24 25 Q And following the purchase of the CLC by IMG, did you have any ownership interest in IMG? A As part of the acquisition, yes, there was a percentage of the acquisition 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 24 1 (Marked Exhibit 332.) 2 MR. PAYNTER: 3 This is double-sided, just so everyone knows. 4 Why don't I just go ahead, while 5 we're at it, and we'll mark this one as 333. 6 This one, Bob, technically it's from your 7 production. 8 assuming you don't have any objection to me 9 showing it to this witness. It's for counsel only. 10 MR. WIERENGA: 11 I'm (Marked Exhibit 333.) 12 13 No, that's fine. BY MR. PAYNTER: Q So let me just, while we have these both in 14 front of you, do you recognize what was marked as 15 Exhibit 332 as a copy of the licensing agreement for 16 Electronic Arts' NCAA Football game that was executed 17 by the CLC in December of 2008? 18 through, I think, just FYI, the CLC's signature page I 19 think is page 23. And if you flip 20 A Yes. 21 Q And do you recognize what was marked as 22 Exhibit No. 333 as a copy of a licensing agreement for 23 Electronic Arts' baseball video game that was also 24 executed by the CLC in December 2008? 25 A 212-279-9424 Yes. VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 30 1 the licensing agreement with Electronic Arts 2 separate from CLC directly with the licensee. 3 4 Q So CLC didn't represent those institutions as an agent then? 5 A Correct. 6 Q Now, as part of this agreement the CLC and 7 the institutions agreed to work in good faith with 8 Electronic Arts to secure name and likeness rights to 9 coaches and other relevant personnel associated with 10 the football teams of the institutions, correct? 11 12 13 MR. BOYLE: Objection. BY MR. PAYNTER: Q Sorry. And if you need to refresh your 14 memory, I direct you to paragraph 2(b), which is on 15 page four. 16 17 MR. BOYLE: speaks for itself and it calls for a legal conclusion. 18 19 20 21 Objection to form, the document THE WITNESS: I'm sorry. Where is it? BY MR. PAYNTER: Q Well, I'm specifically looking at the second sentence of 2(b). 22 A And the question was? 23 Q The question is, as part of this agreement 24 the CLC and the institutions agreed to work in good 25 faith with Electronic Arts to secure name and likeness 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 31 1 rights to coaches and other relevant personnel 2 associated with the football teams of the 3 institutions, correct? 4 5 MR. BOYLE: legal conclusion. 6 7 8 9 THE WITNESS: Yes. BY MR. PAYNTER: Q And why did Electronic Arts want the name and likeness rights to coaches? 10 11 Objection to form, calls for a MR. BOYLE: Objection to form, calls for speculation. 12 THE WITNESS: Well, I think that EA would 13 14 together to try to make the game, to make the product 15 as realistic as possible and having the coaches help 16 to make that happen. 17 106 have to answer that, but I think that we worked BY MR. PAYNTER: 18 Q And the sentence that we were just looking 19 at refers to "other relevant personnel associated with 20 football teams of the Institutions." Do you see that? 21 A Yes. 22 Q And who are those other relevant personnel 23 that are being referenced? 24 MR. BOYLE: 25 THE WITNESS: 212-279-9424 Objection to form. I don't know who they were. VERITEXT REPORTING COMPANY www.veritext.com I 212-490-3430 CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 32 106 1 mean, there were announcers in the game and there were 2 other people that Electronic Arts ultimately worked 3 out an agreement with to include in the game. 4 have been mascots, could have been announcers, could 5 have been coaches, obviously. 6 that, I would assume. 7 BY MR. PAYNTER: 8 9 10 Q 15 Other than announcers and mascots, can you football teams that that clause might refer to? MR. SLAUGHTER: THE WITNESS: No. BY MR. PAYNTER: Q So it doesn't refer to players? 16 MR. BOYLE: 17 THE WITNESS: 18 Objection, calls for speculation. 13 14 So it would refer to think of any other personnel associated with the 11 12 Could Objection to form. No. BY MR. PAYNTER: 19 Q And how do you know that? 20 A How do I know what? 21 Q That it doesn't refer to players. 22 A I don't know. I mean, it just -- it 23 wouldn't refer to players because the 24 licensees were prohibited from using players. 25 It could refer to former players. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 46 1 (Recess 9:53-10:05 a.m.) 2 (Marked Exhibit 336.) 3 THE VIDEOGRAPHER: 4 with videotape number two. 5 Back on the video record BY MR. PAYNTER: 6 Q The time is 10:05 a.m. I think when we took a break we were about 7 to -- we had just marked as Exhibit 336 a document 8 which I'm going to hand you now. 9 questions to begin with. And the usual Do you recognize this as an 10 e-mail that you sent Mr. Todd Sitrin of Electronic 11 Arts on December 19th, 2006? 12 A I'd like to review it, please. 13 Q Sure. 14 A Question? 15 Q So my question was just do you recognize 16 this as an e-mail that you sent Mr. Todd Sitrin of 17 Electronic Arts on December 19th, 2006? 18 A Yes. 19 Q And do you recognize the other e-mails in 20 the string as e-mails that you either sent or 21 received, starting with a December 15th, 2006 e-mail 22 from Mr. David Knopp at the NCAA? 23 MR. BOYLE: 24 THE WITNESS: Objection to form. Yes. 25 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 47 1 BY MR. PAYNTER: 2 3 Q And you sent or received all these e-mails in the ordinary course of business, correct? 4 A Yes. 5 Q In the released version, in other words, 6 publicly released version of EA's NCAA brand football 7 and basketball video games, Electronic Arts uses the 8 likenesses of then current NCAA student-athletes, 9 correct? 10 MR. BOYLE: 11 THE WITNESS: 12 I didn't understand the question. 13 Objection to form. BY MR. PAYNTER: 14 Q What didn't you understand? 15 A Just ask the question. 16 17 MR. PAYNTER: (Court reporter read the requested portion.) 20 21 MR. BOYLE: MR. SLAUGHTER: Objection, overbroad, as well. 24 25 Objection to form and foundation. 22 23 Can you just read the question back. 18 19 Oh, sure. THE WITNESS: A licensee is not allowed to use names or likenesses of student-athletes on the 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 48 106 1 products. 2 BY MR. PAYNTER: 3 Q 4 5 MR. BOYLE: Objection to form and foundation. 6 7 But does it anyway? THE WITNESS: No. BY MR. PAYNTER: 8 Q Sorry. I just couldn't hear. 9 A No. 10 Q But EA does, for each position, the avatar 11 in EA's game has the same jersey game as the real-life 12 player, correct? 13 MR. BOYLE: Objection to form. 14 MR. SLAUGHTER: 15 THE WITNESS: Objection, also foundation. I don't know about in all 16 cases, but, yes, I think in some cases they are. 17 BY MR. PAYNTER: 18 Q In most cases? 19 MR. BOYLE: 20 THE WITNESS: 21 22 23 I think in most cases. BY MR. PAYNTER: Q And EA replicates the body type of the actual NCAA student-athletes in its game, correct? 24 25 Objection to form. MR. BOYLE: Objection to form and foundation. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 49 1 2 THE WITNESS: I don't know. BY MR. PAYNTER: 3 Q Well, if you look at the e-mail that you 4 sent to Mr. Sitrin, do you see the second paragraph 5 where it says: 6 the issue of body type, skin color, and number (which 7 are all used now) as referring to 'likeness' in any 8 way." "I don't think we want to even raise Do you see that? 9 A Yes. 10 Q Does that refresh your recollection that EA 11 uses the body types of actual student-athletes -- 12 strike that. 13 Does that refresh your recollection that EA 14 replicates the body types of actual student-athletes 15 in its games? 16 MR. BOYLE: 17 MR. WIERENGA: 18 THE WITNESS: 19 uses certain generic body types. 20 they incorporate into the game, I don't know the 21 answer to that. 22 Objection to form. And foundation. My understanding is that EA How many body types But there are body types that 23 would -- a lineman's body time or a center's 24 body type might be different than a point 25 guard or a quarterback's body type, and so my 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 50 1 understanding is that those body types typical 2 to that position would be incorporated into 3 the avatars. 4 BY MR. PAYNTER: 5 6 Q Does Electronic Arts attempt to match those body types to the real-life players? 7 MR. BOYLE: 8 speculation, lacks foundation. 9 MR. WIERENGA: 10 11 12 Objection to form, calls for THE WITNESS: Also foundation. I don't know. BY MR. PAYNTER: Q Does -- well, Electronic Arts matches the 13 skin color of actual NCAA players in its game, 14 correct? 15 16 MR. BOYLE: Objection to form and foundation. 17 THE WITNESS: 18 specifically. 19 I don't know that either BY MR. PAYNTER: 20 Q Generally, yes, I think that they do. And Electronic Arts replicates in its game 21 whether a player is right-handed or left handed, 22 correct? 23 A I don't know. 24 Q Can you flip to the second page of this and 25 do you see an e-mail from Mr. Linzner to you dated 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 51 1 December 18th, 2006? 2 A Yes. 3 Q And do you see where Mr. Linzner says: 4 question I have about likeness: 5 "One We already match race and left/right handedness, as well as body type." 6 Do you see that sentence? 7 MR. SLAUGHTER: 8 I'm sorry, Stuart. Where are you reading? 9 MR. PAYNTER: I'm just on the second page of 10 this, and it's the paragraph that begins "Thanks Pat. 11 Great outline." 12 MR. SLAUGHTER: 13 MR. WIERENGA: 14 On the bottom. Oh, sorry. BY MR. PAYNTER: 15 Q Do you see that sentence? 16 A Yes. 17 Q Does that refresh your recollection that 18 Electronic Arts matches the -- whether a player is 19 right or left-handed in its game? 20 MR. BOYLE: 21 THE WITNESS: 22 23 Objection to form. I didn't recall that. BY MR. PAYNTER: Q How about hair color? Electronic Arts 24 attempts to match the hair color of real-life players 25 in its video game, correct? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 53 1 A Yes. 2 Q And do you see where you state: "I think we 3 should argue that the definition of likeness is facial 4 recognition ...not body type or skin color." 5 Do you see that? 6 A Yes. 7 Q What did you mean by "facial recognition"? 8 A Well, what I personally meant by 9 "facial recognition" is that in the context of 10 this discussion we were comparing the NCA 11 football and NCA basketball video games to 12 their pro counterparts, to the NFL Madden game 13 and the NBA Live game, both of which 14 Electronic Arts was the licensee. 15 And the major differences in those two games 16 was the fact that the names of the players appeared on 17 the avatars of the Madden and the NBA Live games, but 18 they didn't, because of NCA regulations, in the NCA 19 games. 20 And the facial features that identified, and 21 again, in my mind, what -- how you identified a player 22 and using their likeness was through replication of 23 their picture, their photograph, or their facial 24 features, and so in context of this, that's what I was 25 referring to. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 92 1 2 3 THE WITNESS: Not that I recall. BY MR. PAYNTER: Q And turning back to the exhibits that we 4 marked at the beginning of this deposition as 332 and 5 332 -- I'm sorry -- 332 and 333, do either of these 6 contracts permit Electronic Arts to utilize current 7 NCAA student-athlete names in its video games? 8 MR. BOYLE: Objection to form, calls for a 9 legal conclusion, and it's severely overbroad, unless 10 you want him to read through both of these contracts. 11 THE WITNESS: Do you want to point out a 12 provision in the agreement that you're referring to? 13 BY MR. PAYNTER: 14 Q Well, I'm actually asking you whether -- 15 well, yeah. 16 A Are you on 332 or 333? 17 Q 332. You can look at page -- It's page seven. And again, it's 18 paragraph seven. 19 that paragraph, is it your understanding that this 20 paragraph permits Electronic Arts to utilize actual 21 NCAA student-athlete names on the jerseys in the game? 22 23 MR. BOYLE: Objection to form, calls for a legal conclusion. 24 25 And my question is, if you look at THE WITNESS: What I read here is that nothing can happen without the express written 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 93 1 permission of the institution. 2 BY MR. PAYNTER: 3 Q And so my question is then, do you have any 4 opinion on whether this paragraph permits Electronic 5 Arts to use player -- actual NCAA player names on the 6 jerseys? 7 8 MR. BOYLE: Objection to form, calls for a legal conclusion and mischaracterizes the document. 9 THE WITNESS: It would not permit them -- 10 the approval process would not permit them and the 11 agreement would not permit them to use the names or 12 the likenesses. 13 BY MR. PAYNTER: 14 Q Okay. To your knowledge, has Electronic 15 Arts agreed to indemnify the CLC for any damages that 16 the CLC incurs as a result of this lawsuit? 17 18 MR. BOYLE: Objection to form, calls for a legal conclusion. 19 MR. SLAUGHTER: 20 THE WITNESS: Lacks foundation. There's an indemnification 21 provision. 22 agreement that we sign on behalf of the institutions 23 that CLC represents. 24 BY MR. PAYNTER: 25 Q 212-279-9424 It's a standard part of every licensing And has the CLC invoked that clause in this VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 190 1 their names or likenesses? 2 A I'm sorry. 3 Q Sure. Repeat the question. I'll say it again. Are you aware of 4 any agreement between or among EA, CLC, and NCAA in 5 which those three parties came together, two or three 6 together to not -- and say we're not going to pay 7 student -- former student-athletes -- 8 A No. 9 Q -- for the use -- 10 11 12 MR. KING: Object to form. BY MR. SLAUGHTER: Q Are you aware of any agreement or 13 understanding between or among the CLC, the NCAA, and 14 EA that restricts EA's ability to compensate former 15 student-athletes in any way? 16 A No. 17 Q Are you aware of any agreement or 18 understanding between or among CLC, the NCAA, and EA 19 to fix at zero dollars the price paid to former 20 student-athletes for the use of their names and 21 licenses? 22 A No. 23 Q Do you know -- I'm sorry. One more. Are 24 you aware of any agreement or understanding between or 25 among CLC, NCAA, and EA to refuse to deal with former 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 191 1 student-athletes with respect to their licensing of 2 their names or likenesses? 3 A No. 4 Q Do you know if former student-athletes are 5 in fact able to license their names and likenesses? 6 MR. PAYNTER: Object to form. 7 THE WITNESS: Former student-athletes? 8 BY MR. SLAUGHTER: 9 Q Yes. 10 A If it's their trademark, they can do 11 12 13 what they want to do with it. Q Or their right -- any of their name or likeness rights, as well, correct? 14 A Yes. 15 Q From time to time did you discuss with EA 16 and the NCAA whether EA could use names and likenesses 17 in its college football and basketball video games? 18 MR. PAYNTER: Object to form. 19 THE WITNESS: Yes. 20 BY MR. SLAUGHTER: 21 Q 22 that issue? 23 A Primarily with Joel. 24 Q Okay. 25 A Joel Linzner. 212-279-9424 With whom at EA did you primarily discuss That's Joel Linzner? VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 192 1 Q And with whom at NCAA did you primarily 2 discuss the issue of whether EA might be able to in 3 the future use names and likenesses in its video 4 games? 5 A Primarily with Greg Shaheen. 6 Q And if you could, please, just describe the 7 nature of those discussions. 8 generally wanted and what was it that CLC or NCAA, how 9 they responded to that request. 10 A What was it that EA Well, the discussions took place 11 over a long period of time. 12 I understand it as it was communicated to me 13 is they wanted the game to be as realistic as 14 possible. 15 EA's interest, as As licensing representative for the schools 16 and all of the entities that were part of the 17 agreement, we had the same objective. 18 game to be as realistic as possible, and the game was 19 clearly not as realistic as possible because names and 20 likenesses were not used, were not able to be used, 21 and so the discussions were generally about how do we 22 make the game more realistic. 23 We wanted the There were a lot of features that were 24 added, you know, every year there were new features 25 that were added by EA to make the game more realistic, 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 193 1 whether it was the fight songs or the mascots or the 2 announcers or, you know, any number of things to make 3 the game more realistic, but the lack of ability to 4 use the names and the likenesses was a glaring 5 omission in terms of the realism of the game and it 6 reflected in terms of the -- it was reflected in terms 7 of the sales. 8 9 10 11 And so that's what EA wanted to do. We had the same objectives, and so our discussions with the NCAA and with others generally were around that. Q Okay. And whose decision would it have been 12 to allow EA to use names and likenesses in its video 13 games? 14 15 16 17 MR. PAYNTER: Object to form. BY MR. SLAUGHTER: Q Well, let me strike that and ask a better question. 18 Was it your -- were your discussions with 19 the NCAA revolved around whether NCAA could change 20 some of its rules that would then allow a 21 student-athlete to have his name be -- name and image 22 be in a -- name and likeness be in a video game 23 without him losing eligibility? 24 25 MR. PAYNTER: Object to form, and I'm just going to have the standing objection to the use of the 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 194 1 term "likeness" unless it's defined, but go ahead. 2 3 4 THE WITNESS: Yes. BY MR. SLAUGHTER: Q And was it your understanding that it wasn't 5 Mr. Shaheen personally who could make that decision 6 about whether the NCAA would change its rules, 7 eligibility rules? 8 A That is correct. 9 Q Who, as to your understanding's, decision 10 11 would it be to change the NCAA's eligibility rules? A I don't know whose decision. I 12 don't know what subcommittee or committee 13 within the NCAA would be responsible for 14 making that change. 15 Q But it wasn't up simply to the executive 16 leadership, the NCAA just to do that by a stroke of 17 their pen? 18 A That was my understanding. 19 Q During your time at CLC, and is it fair to 20 say that this was a theme that existed throughout the 21 period of time that you were dealing with EA and the 22 NCAA, that is, the desire to be able to use names and 23 likenesses but not being able to do so? 24 MR. PAYNTER: Object to form. 25 THE WITNESS: Well, I would say that the 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 195 1 theme that was carried through was how to constantly 2 improve the game and to make it more realistic, and as 3 part of that at a certain point in time, you know, 4 using the names and using the likenesses, you know, 5 that became an issue that we constantly tried to 6 address, never to any successful conclusion, but we 7 did try to address their time. 8 BY MR. SLAUGHTER: 9 Q And that last part was going to be my next 10 question is during your time at CLC, were you ever 11 successful in -- or strike that. 12 During your time at CLC, did the NCAA 13 eligibility rules ever change so that EA could use 14 names and likenesses in its games without risking the 15 eligibility of any of the current student-athletes? 16 MR. PAYNTER: Object to form. 17 THE WITNESS: No. 18 BY MR. SLAUGHTER: 19 Q I'm sorry. Could you -- 20 A No. 21 Q And we've been focusing on EA. I want to 22 direct your attention now to other CLC licensees of -- 23 and ask you, did other licensees occasionally make 24 requests or participate in discussions about whether 25 the NCAA eligibility rules would be changed to allow 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 CONFIDENTIAL - ATTORNEYS' EYES ONLY Page 209 1 C E R T I F I C A T E 2 -oOo- 3 4 STATE OF GEORGIA: 5 FULTON COUNTY: 6 7 I hereby certify that the foregoing 8 transcript was taken down, as stated in the caption, 9 and the colloquies, questions, and answers were 10 reduced to typewriting under my direction; that the 11 transcript is a true and correct record of the 12 evidence given. 13 I further certify that I am not a relative 14 or employee or attorney of any party, nor am I 15 financially interested in the outcome of this action. 16 This, the 22nd day of June, 2012. 17 18 19 20 21 _________________________________ 22 Kristine A. Bokelmann, CCR B-2148 23 24 25 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430

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