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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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
__________________________/

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6
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CONFIDENTIAL - ATTORNEYS' EYES ONLY

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VIDEOTAPED DEPOSITION OF PAT BATTLE

9

June 19, 2012

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9:06 a.m.

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Kilpatrick Townsend & Stockton, LLP

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1100 Peachtree Street, NE

13

Suite 2800

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Atlanta, Georgia

15
16
17

Kristine A. Bokelmann, RDR, CRR, CCR-B-2148

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19
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Designation Color Key
Blue = NCAA Affirm Desigs.
Orange = Pls' Counter Desigs.
Fuchsia = NCAA Rebuttal Desigs

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212-279-9424

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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.

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4:09-CV-1967 CW (NC).

23

today is Pat Battle.

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25

The name of the witness

At this time the attorneys present
in the room and attending remotely will

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2
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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

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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

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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

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(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.
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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

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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

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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.

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(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

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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

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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.

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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

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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

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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?

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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.

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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

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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
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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

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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?

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MR. PAYNTER:

Object to form.

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THE WITNESS:

Former student-athletes?

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BY MR. SLAUGHTER:

9

Q

Yes.

10

A

If it's their trademark, they can do

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12
13

what they want to do with it.
Q

Or their right -- any of their name or

likeness rights, as well, correct?

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A

Yes.

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Q

From time to time did you discuss with EA

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and the NCAA whether EA could use names and likenesses

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in its college football and basketball video games?

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MR. PAYNTER:

Object to form.

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THE WITNESS:

Yes.

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BY MR. SLAUGHTER:

21

Q

22

that issue?

23

A

Primarily with Joel.

24

Q

Okay.

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A

Joel Linzner.

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Q

And with whom at NCAA did you primarily

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discuss the issue of whether EA might be able to in

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the future use names and likenesses in its video

4

games?

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A

Primarily with Greg Shaheen.

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Q

And if you could, please, just describe the

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nature of those discussions.

8

generally wanted and what was it that CLC or NCAA, how

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they responded to that request.

10

A

What was it that EA

Well, the discussions took place

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over a long period of time.

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I understand it as it was communicated to me

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is they wanted the game to be as realistic as

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possible.

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EA's interest, as

As licensing representative for the schools

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and all of the entities that were part of the

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agreement, we had the same objective.

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game to be as realistic as possible, and the game was

19

clearly not as realistic as possible because names and

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likenesses were not used, were not able to be used,

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and so the discussions were generally about how do we

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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,

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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

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reflected in terms of the -- it was reflected in terms

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of the sales.

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9
10
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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?

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15
16
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MR. PAYNTER:

Object to form.

BY MR. SLAUGHTER:
Q

Well, let me strike that and ask a better

question.

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Was it your -- were your discussions with

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the NCAA revolved around whether NCAA could change

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some of its rules that would then allow a

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student-athlete to have his name be -- name and image

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be in a -- name and likeness be in a video game

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without him losing eligibility?

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MR. PAYNTER:

Object to form, and I'm just

going to have the standing objection to the use of the

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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?

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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

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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

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Page 209
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C E R T I F I C A T E

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-oOo-

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4

STATE OF GEORGIA:

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FULTON COUNTY:

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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.

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This, the 22nd day of June, 2012.

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18
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_________________________________

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Kristine A. Bokelmann, CCR B-2148

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