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 C 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 PETER DAVIS, a witness produced and 14 sworn before me, Debbi S. Austin, RMR, CRR, Notary 15 Public in and for the County of Hendricks, State of 16 Indiana, taken on behalf of the Plaintiffs, at the 17 offices of Faegre Baker & Daniels, 300 North 18 Meridian Street, 27th Floor, Indianapolis, Marion 19 County, Indiana, on the 6th day of June, 2012, 20 commencing at 8:55 a.m., pursuant to the Federal 21 Rules of Civil Procedure with written notice as to 22 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 9 1 PETER DAVIS, 2 having been duly sworn to tell the truth, the whole 3 truth, and nothing but the truth relating to said 4 matter, was examined and testified as follows: 5 6 DIRECT EXAMINATION, 7 8 QUESTIONS BY MR. STEVEN J. GREENFOGEL: Q 9 Would you state your name for the record, please. 10 A Certainly. 11 Q Okay. 12 A 4409 North Pennsylvania Street, Indianapolis, 13 It's Peter Davis. And what is your home address? Indiana. 14 Q And by whom are you currently employed? 15 A National Collegiate Athletic Association. 16 Q And for how long have you been employed by NCAA? 17 A Ten years this month. 18 Q And what is your current position with the NCAA? 19 A Director of corporate relationships. 20 Q How long have you held the title of director of 21 22 corporate relationships? A 23 24 25 Various titles, but the general responsibilities for about seven years now. Q Was it called something else before it became director of corporate relationships? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 10 1 A It would have been the director of corporate 2 alliances and in a fleeting moment the director 3 of championships and alliances. 4 Q 5 Okay. So would it be okay if I use director of corporate relationships? 6 A Certainly. 7 Q Okay. And you said you've had that title or 8 something akin to it for seven years. 9 you do before that? 10 A 11 12 Q A It would have been the remainder of my time at the NCAA, so approximately three years. Q 17 18 And for how long a period of time were you in the brand and advertising group? 15 16 Prior to that I was involved in the brand and advertising group at the NCAA. 13 14 What did Can you recall approximately what year it was that you became director of corporate relations? A 19 2005 or 2006. Oh, corporate relations. That's been within the last 18 months. 20 Q No, I -- I'm using that as a generic term. 21 A Oh, as a generic term, yes. 22 23 So 2000- -- roughly 2005, 2006 time frame. Q Okay. And as the director of corporate 24 relations, what were your duties and 25 responsibilities? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 11 1 A My duties were and continue to be responsibility 2 for the NCAA sponsorship program, the NC- -- and 3 the NCAA licensing programs. 4 Q And what is the NCAA sponsorship program? 5 A The sponsorship program is servicing of the 6 corporate champions and corporate partners, in 7 layman's terms, sponsors, and working with their 8 marketing groups to understand and implement or 9 approve the implementation of their marketing 10 promotional activations. 11 Q What's an NCAA champion? 12 A NCAA champion is the highest tier of sponsor. 13 There are two tiers, corporate champion and 14 corporate partner, corporate champion being the 15 higher of the two. 16 Q 17 18 Okay. And how does one become a corporate champion? A CBS at the -- going back a few years, CBS Sports 19 was -- was the -- the rights holder to NCAA 20 marketing rights. 21 solicit major corporations to become sponsors of 22 the NCAA. 23 financial package that includes advertising and 24 rights to NCAA marks. 25 Q They would go out and -- and So it's a -- it's an advertising -- So -- and that -- that would have been done 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 12 1 through CBS? 2 A The sales process, yes. 3 Q Is that true today? 4 A CBS is a partner with Turner Sports who also 5 assists in that -- those endeavors. 6 Q So as of today, then it's CBS and Turner -- 7 A That's correct. 8 Q -- who go out and get the corporate champions 9 and the corporate partners? 10 And then what is your relationship with 11 those corporate champions and the corporate 12 partners? 13 A Once Turner and CBS do find those and we -- and 14 they agree to terms with those companies to 15 become a cor- -- an NCAA corporate champion or 16 corporate partner, the NCAA, my group in 17 particular, works with those sponsors to have 18 them understand their rights as a sponsor and 19 execute those rights in their marketing 20 materials, marketing activities. 21 Q Now, in terms of what you do as the director of 22 corporate relations, does your relationship with 23 the corporate champions or corporate sponsors 24 generate any income directly to the NCAA? 25 A There are times when, if the NCAA is -- has 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 13 1 developed a program and we offer it to the 2 champions or partners at cost for them to 3 participate, to put their logo on a sign, for 4 example, then yes, there is direct payment to 5 the NCAA. 6 Q But basically, most of the revenue that is 7 generated from corporate champions and corporate 8 partners go to CBS/Turner; is that correct? 9 A That is correct. 10 Q Now, in addition to -- since I missed it, you 11 said -- to the NCAA sponsorship programs, you 12 said you had one other major responsibility, and 13 I'm blanking on what it was that you said. 14 A The NCAA licensing program. 15 Q Okay. 16 A It's kind of a three-tier program that I deal And what was that? 17 with. One tier being sales at NCAA 18 championships of merchandise and the management 19 of that vendor. 20 licensees. 21 official supplier program, the official 22 equipment supplier program. The second tier being retail And the third tier being the NCAA 23 Q What is the official equipment supplier program? 24 A The NCAA builds partnerships with sporting goods 25 manufacturers that supply equipment that we 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 15 1 they know and recognize that they have 2 opportunity to use NCAA marks in their marketing 3 materials. 4 it -- how to use those marks appropriately so as 5 to protect the NCAA brand and -- well, the size 6 of the logos, the placement of logos. 7 example would be how to utilize tickets in a 8 sweepstakes-type promotion. 9 Q We help them understand how to use Another In the course of your duties and 10 responsibilities as director of corporate 11 relations, do you have occasion to deal with the 12 issues of name, image, and likeness? 13 A Yes. 14 Q And -- and how does that come into play in your 15 16 job as director of corporate relations? A In that scenario, there may be a request from a 17 sponsor to utilize a certain image or piece of 18 video footage that has or potentially may have 19 currently eligible student-athletes involved, 20 and it's our role to educate them on the NCAA 21 bylaws that would prevent such student-athletes 22 from participating in their commercial endeavors 23 or determining where it is appropriate or where 24 it is not appropriate for those student-athletes 25 to appear. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 16 1 Q 2 3 advertising by you? A 4 5 Q Well, the -- the proposed advertising that And let me back up one thing. As director of corporate relations, who do you report to? A 8 9 Yes. utilizes NCAA trademarks, yes. 6 7 Do the corporate champions pass their proposed Right now I report to the executive vice president of the NCAA. Q And for how long a period have you been 10 reporting to the executive vice president of the 11 NCAA? 12 A The executive vice president has been in place 13 for about six weeks now. Prior to that, I 14 reported to the interim executive vice 15 president. 16 individual under a different title that I don't 17 know that I can recall right now. And prior to that, it was the same 18 Q And who was that? 19 A That was Greg Shaheen. 20 Q And in your position as director of corporate 21 relations, did you have a staff? 22 A Yes, I do. 23 Q And who comprised your staff? 24 A In general terms, in the -- in the -- in the 25 basic history, I've had a number of managers or 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 18 1 of a year, I think we'd be looking upwards of 2 1500 approvals or approval requests. 3 Q 4 5 And -- and would those approval requests come directly from the corporate sponsors? A Typically, yes, unless the sponsor is using an 6 ad agency or -- or a -- another agency 7 representing them. 8 Q 9 question really is is that it didn't come from 10 11 CBS or Turner? A 12 13 So -- so the -- rather -- I -- because my That's correct. No, it came directly from the champions, partners, or their representative. Q And were there occasions when you were reviewing 14 proposed advertisements that you rejected 15 specific ads? 16 A Certainly, yes. 17 Q Did the corporate sponsors have any recourse 18 above you to ask for any sort of relief from 19 your Draconian rulings? 20 A I suspect if -- if there was need or purpose, 21 they could ask -- could ask senior management 22 for assistance, yes. 23 MR. CURTNER: The record should reflect 24 that I was slow on the uptake there and I should 25 have objected to the form of the question. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com The 212-490-3430 Page 20 1 name, image, and likeness? 2 3 MR. SLAUGHTER: A Object to the form. Outside of the world of sponsorship -- well, 4 yes, we dealt with name, image, and likeness in 5 licensing as well. 6 Q And -- and how did you deal with that? 7 A Very similarly, working with NCAA licensees that 8 had requested to potentially use name, image, or 9 likeness of currently el- -- eligible or former 10 11 student-athletes. Q 12 13 And when you use the term "former student-athletes," what do you mean by that? A Typically I mean -- not typically. In I think 14 every case, I mean student-athletes that have 15 exhausted their eligibility and/or moved on 16 beyond collegiate athletics. 17 Q And how -- how would you deal with individuals 18 who had exhausted their eligibility in the 19 course of your dealings with licensees? 20 A Well, typically my charge has been to look after 21 the bylaws of the NCAA. 22 student-athlete has exhausted or foregone their 23 eligibility, then that's no longer something 24 that the NCAA watches over. 25 direct -- direct the licensee to find that 212-279-9424 And once a So we would simply VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 21 1 individual and -- and come to agreement with 2 that individual. 3 NCAA controls. 4 Q It's not something that the So in other words, with respect to former 5 students who have exhausted their eligibility, 6 you had no position with respect to anything to 7 do with them and just told the licensees, that's 8 your problem; right? 9 MR. CURTNER: 10 11 Object to the form. You may answer. A For the -- yeah, I think that is right. That -- 12 I mean, we -- we would help them find the school 13 or the individual if we knew where to find that 14 individual. 15 with someone that is not involved -- no longer 16 involved with the NCAA, then yes, that would be 17 up to the licensee to work with that individual. But essentially, if they're dealing 18 Q And how many licensees did the NCAA have? 19 A It certainly varies, but I would say typically 20 between 30 and 40. 21 Q And you're responsible for all of them? 22 A Uh-huh. 23 (A discussion was held off the record.) 24 (Deposition Exhibit 305 marked for 25 identification.) 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 33 1 Q Okay. 2 (Deposition Exhibit 308 marked for 3 4 identification.) Q I'll show you a document we've marked as 5 Plaintiffs' Exhibit 308, which has the NCAA 6 production number of 00213924 through 928. 7 it's a series of e-mails. 8 them, see if we can identify the ones on which 9 you are either the author or recipient. And And let's go through 10 A Uh-huh. 11 Q And if you take a look at the e-mail that's 12 starting sort of halfway down the page on 13 page 926. 14 A Yes. 15 Q And it's an e-mail from you to -- dated 16 October 5th, 2004, to Bill Glenn at Cingular 17 and a number of other people. 18 if this is a document which you prepared on or 19 about that date in the course of your duties as 20 an employee of the NCAA. And I would ask 21 A It does appear to be, yes. 22 Q And at this point in time, were you becoming 23 more active in terms of dealing with NCAA 24 corporate partners? 25 A Yes, very much so. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 34 1 Q 2 And actually I guess your -- had your title changed? 3 A Yes. 4 Q And what was an associate director of corporate 5 6 alliances? A Associate director of corporate alliances was 7 very similar to my role now. 8 much direct authority and still worked with my 9 boss who was Greg Shaheen at the time. 10 Q 11 I did not have as But by this point in time in 2004, you had switched out of brands and advertising? 12 A That's right, so I was -- that's right. 13 Q Yeah, time flies when you're having fun. 14 A Isn't that true. 15 Q I can't remember what I was doing last night. 16 Now, if you'd take a look at the e-mail 17 three-quarters of the way down on page 925 -- 18 A Uh-huh. 19 Q -- from Brooke Studwell to you dated October 6, 20 2004. I would ask if this is a document which 21 you prepared -- or which you received on or 22 about October 6th, 2004, in the course of your 23 duties as an employee of the NCAA. 24 A Yes, it looks to be. 25 Q And in 2004 -- Cingular was a predecessor of 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 35 1 2 AT&T? A That's correct. 3 4 MR. BOYLE: Q 5 Objection to form. So when Cingular was merged in with AT&T, AT&T took over that corporate champion slot? 6 A Yes. 7 Q And I guess that Brooke Studwell asked you 8 whether video footage of basketball highlights 9 would be available through the NCAA royalty free 10 in addition to photos. 11 Did you find out the answer for that? 12 A I'm sure I did. 13 Q And actually you did. 14 A Yes. 15 Q And if you take a look at the first page, 16 there's an e-mail from Greg Weitekamp to you -- 17 A That's right. 18 Q -- dated October 9th, 2004. I'd ask if this 19 is a document which you received on or about 20 2004 -- October 9th, 2004, in the course of 21 your duties as an employee of the NCAA. 22 A It looks to be, yes. 23 Q Okay. 24 A Greg Weitekamp at the time was my counterpart on 25 And who is Mr. Weitekamp? the broadcast side while I was working with the 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 36 1 2 sponsorship side at the NCAA. Q And -- and he told you that -- that this would 3 be provided to -- this material would be 4 provided to Cingular; correct? 5 MR. BOYLE: 6 MR. CURTNER: 7 A Object. Object to the form. It certainly depended on what they requested 8 specifically. 9 provide them with assets, yes. 10 Q There would be opportunity to And -- and he went on to tell -- to say that -- 11 that "Cingular will need to clear all the 12 likenesses of the athletes that appear in the 13 footage if they are used -- using as a 14 commercial or promotional application. 15 guarantee that the individuals will not charge a 16 fee for the use of their likenesses." 17 I cannot Correct? 18 A Correct. 19 Q Okay. Then I guess the top e-mail you sent to 20 yourself. 21 in your file? 22 A 23 24 Was that so that you would have that I changed the subject so I'd recognize it in a file, yes. Q Okay. 25 (A discussion was held off the record.) 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 122 1 that right? 2 A That's right. 3 Q So -- so the position was that you wanted to -- 4 you weren't going to stand in the way of 5 individual players building and sharing rosters 6 that may or may not include eligible 7 student-athletes' names? 8 MR. CURTNER: 9 A That's correct. 10 Q Okay. Object to the form. Do you recall having any discussions with 11 Mr. O'Brien about how file sharing might affect 12 revenues for their game? 13 A 14 I do not recall having revenue conversations related to that aspect of the video game, no. 15 MR. GREENFOGEL: 16 (Deposition Exhibit 332 marked for 17 18 332. identification.) Q I'll show you a document we've marked as 19 Plaintiffs' Exhibit 332, which bears the Bates 20 numbers NCAA production 00242950 through 957. 21 And it's a series of e-mails with an attachment. 22 23 Who is Dave Schnase? A 24 25 Dave Schnase is also an employee of the NCAA, I believe also in membership services. Q Now, if you take a look at the bottom e-mail on 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 123 1 the first page, Mr. Schnase writes to you on 2 April 22nd, 2008, and to David Knopp, and 3 asks -- I would ask if this is a document which 4 you received on or about that date in the course 5 of your duties as an employee at the NCAA. 6 A Yes, it looks like it is. 7 Q And he was telling you that -- is it Joan Scott 8 from Nike -- 9 A That's correct. 10 Q -- wanted a list of dos and don'ts for corporate 11 involvement. 12 And -- and if you look at the attachment, 13 it -- it's -- there -- there's one titled 14 "Working with NCAA Trademarks" and "Guidelines 15 for Promotional Use of NCAA Images and Marks." 16 Did you discuss these attachments with 17 Mr. Knopp before he provided them to -- well, 18 strike that. 19 Were -- were these attachments provided to 20 Joan Scott of Nike? 21 MR. CURTNER: 22 A I don't know. 23 Q Now -- all right. Object to the form. Going up to the next -- the 24 middle e-mail on the first page where it's from 25 Mr. Knopp to a number of people, including you, 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 124 1 dated April 22nd, 2008. 2 is a document which you received on or about 3 that date in the course of your duties as an 4 employee of the NCAA. 5 A It seems that I did. 6 Q Okay. I would ask if this And -- and Mr. Knopp says, "We prepared a 7 cheat sheet for ESPN a few months ago on the use 8 of SA likenesses, et cetera, that might be of 9 some help." 10 Were you involved in the creation of that 11 cheat sheet? 12 MR. CURTNER: Object to the form. 13 A I was not. 14 Q And he says -- he goes on and says, "And members 15 of your MS staff and Greg Weitekamp and Jim 16 Hayes -- Haynes met with ESPN to review those 17 rules and may have prepared another document 18 related to this topic." 19 And Jim Haynes was -- was your direct 20 report; right? 21 A That's correct. 22 Q Do you recall having any discussions with 23 Mr. Haynes regarding this? 24 A I do not. 25 Q Okay. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 127 1 A 2 3 I think this document was prepared by EA Sports with editorial assistance from the NCAA. Q And what was the purpose of this? 4 MR. SLAUGHTER: 5 MR. CURTNER: 6 Q 7 Object to the form. Of that -- what was the purpose of that preparation? 8 9 Object to the form. MR. SLAUGHTER: A Object to the form. The purpose of this preparation was for the -- 10 it was the ability to share internally 11 information, and if necessary, externally if 12 asked. 13 about the new video game, which would have been 14 NCAA Football 2009, partic- -- particularly as 15 related to the file sharing that we've 16 discussed. 17 Q But internally in particular information So if you take a look under No. 3, where the EA 18 response was that it says, "NCAA policy does not 19 permit the usage of player names or likenesses 20 in video games. 21 is permitted to accurately re-create university 22 rosters with uniform numbers, positions, 23 heights, weights, and the previous season's 24 statistical information." 25 In accordance with the NCAA, EA Was that correct? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 104a; 611b Page 128 1 MR. CURTNER: Object to the form. 2 A Yes, that's correct. 3 Q And "While NCAA policy also permits the accurate 4 re-creation of skin tones, EA does not model 5 faces or body types after student-athletes." 6 Did NCAA policy permit accurate re-creation 7 of skin tones? 8 9 MR. CURTNER: A Object to form. That's a question I don't know the answer to 10 based on the bylaw. 11 preclude that. 12 Q But if -- we do not Was -- was this a document prepared in 13 anticipation of a press conference that was 14 going to go hand in hand with the announcement 15 of NCAA Football '09? 16 A This was not prepared for that purpose. 17 Q Because if -- if you take a look at this, at the 18 bottom part of No. 3 -- 19 A Uh-huh. 20 Q -- where it says, "Note, if this question is 21 asked of EA, we defer all questions regarding 22 NCAA policy to the NCAA." 23 24 So -- so for what purpose was this designed, this document? 25 MR. CURTNER: 212-279-9424 Objection, foundation. VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 133 1 potentially could. 2 we'd refer to the schools and universities 3 themselves as they helped protect the names and 4 likenesses of the student-athletes individually, 5 whereas the NCAA does not. 6 (Deposition Exhibit 336 marked for 7 8 This would be something that identification.) Q 9 I'll show you a document we've marked as Plaintiffs' Exhibit 336, which bears the Bates 10 number NCAA production 00204331. 11 pair of e-mails -- or it's three e-mails. 12 take them one at a time. 13 painful e-mail for me to read about. 14 And this is a I'll And this is a very The first one is from you to Joan Scott at 15 Nike dated March 4th, 2009. And ask if this 16 is a document which you prepared on or about 17 that date in the course of your duties as an 18 employee at the NCAA. 19 A Yes, it appears to be. 20 Q What was it that Ms. Scott was trying to do with 21 the University of Illinois, University of North 22 Carolina footage? 23 MR. CURTNER: 24 25 A Object to the form. As I recall, this was a Nike advertisement that they were utilizing footage from the 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 134 1 championship game of the 2005 Final Four in 2 which the University of Illinois and the 3 University of North Carolina competed. 4 were focusing on individual players within the 5 ad. 6 their eligibility and moved on to either the pro 7 ranks or had -- had left the collegiate game. 8 They And those individual players had exhausted So they were asking permission to license 9 the footage from the NCAA and then also if there 10 were any other issues that we had. 11 where I indicate to Joan that let's make sure 12 that there aren't any arms, legs, or fingers of 13 an eligible student-athlete within the video 14 clip. 15 recognizable by that individual perhaps, so we 16 just need to make sure that all shots were 17 completely clear of eligible student-athletes. 18 Q And that's Because if there's an arm, it's In fact, in the -- in the next e-mail up the 19 chain, you wrote to Joan Scott on March 4th, 20 2009, that it was Nike or Thought Equity's 21 obligation to clear each player or coach that 22 was shown; correct? 23 A That's right. So the student-athletes that had 24 gone on, had left the collegiate ranks and 25 playing, they have the right to be in a 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 135 1 commercial just as anyone would. And they have 2 the right to be compensated to be part of that 3 advertising campaign. 4 the -- the duty of the advertiser, in this case 5 Nike, or their vendor, Thought Equity, who was 6 sourcing the video footage for Nike -- it's 7 their responsibility to make sure that everybody 8 that is in the video footage is cleared and has 9 either signed off their likeness or is being And it's the -- it's 10 compensated for it, the use of their likeness in 11 the ad. 12 Q And that was a document in which you prepared on 13 or about March 4th, 2009, in the course of 14 your duties as an employee of the NCAA? 15 A Correct. 16 Q And then in the e-mail above that, she writes 17 back to you and says, "Eric Lautenbach is 18 getting clearance from players." 19 And who is Eric Lautenbach? 20 A Eric Lautenbach at the time was head of NCAA -- 21 or N- -- of college basketball for Nike and may 22 have had more responsibility than just college 23 basketball. 24 his title or -- or full scope of responsibility. 25 In essence, he had access to the players that 212-279-9424 I don't recall specifically his -- VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 137 1 2 photo in a commercial setting. Q So then -- so that the -- and your view was the 3 safest way was to -- to minimize the problem was 4 to make sure that a photo would be at least five 5 years old? 6 A That's right. Typically student-athletes have 7 four years of eligibility. And if there's an 8 injury, they might have a fifth year. 9 unlikely that they would have a sixth, seventh, It's very 10 or eighth year of eligibility, based on injury 11 or -- or other circumstances. 12 entities are looking to utilize photos for 13 commercial purposes, it's much easier to look at 14 photos that are five years old or older, because 15 it's very unlikely that they will find somebody 16 with eligibility remaining in that photo that 17 would cause issues for that student-athlete. 18 (Deposition Exhibit 338 marked for 19 20 So if commercial identification.) Q Let me show you a document we've marked as 338, 21 which bears the Bates of NCAA production 22 00203057 through 61. 23 Austin to Dan DeFabio with a cc to you dated 24 December 21, 2009. 25 document which you received on or about that 212-279-9424 And this is from Erika And I would ask if this is a VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 138 1 date in the course of your duties as an employee 2 at the NCAA. 3 A Yes, it looks to be. 4 Q And this was a situation where somebody was 5 trying to create a Villanova national champions 6 print collection? 7 A I believe that's correct. 8 Q Was this from 19- -- the 1985 team? 9 A I think this was pertaining to their football 10 11 championship, subdivision national championship. Q Oh, okay. 12 So the only -- I guess Ms. Austin writes 13 that -- that -- that if this item were being 14 sold commercially, it couldn't be done if there 15 were any students that had any eligibility left; 16 correct? 17 A Yes. I -- and I don't know the bylaw, which is 18 why we have the membership services team. 19 think there are ways for the school itself to be 20 able to produce and/or sell a photo with 21 currently eligible student-athletes rather than 22 a corporate entity doing so. 23 Q Could the school do it for commercial purposes? 24 25 But I MR. SLAUGHTER: Object to the form, lacks foundation. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 139 1 A I -- I guess I don't know the answer to that 2 question. 3 the -- what the request looked like. 4 Q It would very much depend on what All right. I'm just going to introduce this 5 document. 6 very many questions about it. 7 A Okay. 8 MR. GREENFOGEL: 9 in one bag on the way home. 11 MR. CURTNER: 12 I'm sure I can find a wastebasket. 13 (Deposition Exhibit 339 marked for 14 identification.) Q 16 Let me show you a document that we've marked as 338 -- 17 18 I just want to make sure that my pile goes down so that I can fit it all 10 15 I'm probably not going to ask you THE REPORTER: Q 339. -- 339, which bears the Bates number of NCAA 19 production 00228565 through 605. 20 titled "NCAA Corporate Champion and Corporate 21 Partner Marketing Guidelines, Revised July 13th, 22 2010." 23 Is this a document that was generated from 24 25 And it's your office? A In conjunction with counterparts at CBS Sports, 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 140 1 2 yes. Q 3 And -- and were you involved in the preparation of this document, you personally? 4 A Yes. 5 Q And -- and who did you work with at C- -- CBS in 6 7 terms of preparing this document? A CBS, because they have certain marketing rights 8 of the NCAA and partnership with us on the 9 corporate champion and partner program, wanted 10 to make sure they had review and approval rights 11 before we shared this with the corporate 12 champions and corporate partners. 13 the -- those that may have reviewed it would 14 include -- 2010, so probably Devron Edwards, 15 Jeff Brenner, and Chris Simko. 16 Q 17 18 In doing so, So -- so the way it worked was -- was -- did -did you personally prepare it, this document? A This revision, I was the lead preparer. I had a 19 number of other colleagues at the NCAA that 20 worked with me. 21 Q 22 Okay. But yes, this was my project. And then -- and then it went -- it was submitted to CBS for review and comment? 23 A That's correct. 24 Q So they -- they weren't generally part of the 25 initial drafters of this? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 150 1 at some point, and I'm sure I played as the 2 University of Michigan at some point. 3 Q 4 5 You said you played as -- as -- as the mascots. Can you explain that? A There's a -- a function in the game where rather 6 than student-athlete avatars, each of the 7 players is actually a mascot. 8 for example, just using the two examples I gave, 9 the University of Tennessee versus University of So if you played, 10 Michigan, you might have University of 11 Tennessee's dog mascot playing against -- the 12 University of Michigan may be a bad example. 13 can't think of what their mascot would be as a 14 wolverine. 15 a wolverine I guess is what it would look like. 16 Q 17 I But as a -- against -- a dog versus And you were able to recognize the mascots for those teams? 18 A Yes. 19 Q And did they have the names on the back of their 20 21 jerseys or not? A I don't recall, but because they're not eligible 22 student-athletes, it wouldn't be a concern if 23 they did. 24 25 Q Okay. Okay. When you played the 2009, 2010 NCAA football games, did you recognize any 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 151 1 student-athletes in the game? 2 MR. SLAUGHTER: 3 MR. CURTNER: 4 A 5 Object to form. Object to form. I did not, because they are not the same as real-life individuals. 6 Q Well, explain that to me, please. 7 A The -- 8 9 MR. CURTNER: A Object to form. The student-athlete avatars are, for lack of a 10 better term, cartoons, and they're -- they are 11 not actual individuals that exist in real life. 12 Q Okay. I understand that the avatars are 13 cartoons. 14 avatars to be representations of actual 15 student-athletes? 16 MR. CURTNER: 17 But did you recognize any of the Objection, asked and answered. 18 A I did not recognize them as such. 19 Q Do you understand that you can have an avatar 20 that would represent an athlete -- 21 22 MR. CURTNER: Q -- in a video game? 23 24 25 MR. SLAUGHTER: A Object to form. Object to form. I do understand that they can be built to be extremely similar, particularly in the 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 152 1 professional games. In professional NBA games, 2 you can tell exactly who -- who the -- the 3 likeness is supposed to be that mirror to the 4 real-life athlete -- professional athlete. 5 Q How can you tell? 6 A Well, in -- in an NBA game, you can see very 7 explicit facial features and -- and hair 8 stylings and tattoos. 9 Q Any other way? 10 A That's -- that's the best -- that's the most 11 12 telling way to tell an individual, in my book. Q Would you be able to tell certain athletes by 13 the number they wear and the team that they play 14 for -- 15 16 MR. CURTNER: Q -- without seeing their face? 17 MR. CURTNER: 18 MR. SLAUGHTER: 19 A Object -- Object to form. Join. It depends on the individual. Some individuals 20 may be able to make a judgment that they are 21 looking at someone, and many others would not be 22 able to make that same judgment. 23 Q If you saw a video game from the late '80s and 24 there was a player, an avatar for the Chicago 25 Bulls wearing No. 23, would you know who that 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 153 1 is? 2 MR. SLAUGHTER: Object to the form. 3 A In the late '80s? 4 Q Yes. 5 A You could draw -- I mean, it says a name on the 6 back, so it probably says Jordan on the back of 7 the jersey. 8 certainly. 9 Q So for that reason it says Jordan, Without the name would you know who it was if 10 you saw just the number and the Chicago Bulls 11 jersey from the front? 12 MR. CURTNER: 13 A 14 15 Object to form. Depends on -- I mean, perhaps. I'd have to see that avatar to really know and understand. Q When you played the video game, did you notice 16 whether or not there were any student-athlete 17 images in the 2009 and 2010 NCAA football game? 18 19 MR. SLAUGHTER: A 20 Object to the form. Could you describe what you mean by "student-athlete images"? 21 Q Pictures of student-athletes. 22 A Of real student-athletes, of real-life 23 student-athletes. 24 Q Real student-athletes, not their avatars. 25 A There are not pictures. 212-279-9424 There should not be VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 154 1 pictures of real student-athletes within the 2 game. 3 Q Did you determine whether -- did you make an 4 investigation to determine whether or not that 5 was true, or is that your belief of what should 6 be in the game -- or should not be in the game, 7 excuse me? 8 A 9 Certainly there's very little ability for me to see every avatar within the game. So the 10 avatars that I did see I did not find problem 11 with. 12 Q During your review, did you see student-athlete 13 names being used in the 2009 and 2010 NCAA 14 football game? 15 A I did not see names being used. 16 Q Were you reviewing this as part of a review 17 process prior to the release of the game, or was 18 this after the game had been released? 19 A Using -- in the NCAA offices, it was after the 20 release of the game. 21 had opportunity to see a beta test before the 22 game was completely finished. 23 parts of what the game would look like prior to 24 final development of the video game. 25 Q There were times where we So we did see And when you say "we," who are you referring to? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 163 1 each individual's -- each individual 2 student-athlete. 3 opportunity to review the video game, and they 4 would be the ones that would be more likely to 5 have an opportunity to identify true 6 student-athletes or exact representations of 7 student-athletes on their campus. 8 not an obligation of the NCAA to look for 9 individuals within the video game that reflect 10 11 So there's that of someone in real life. Q 12 Does the NCAA approve the video game before it's released to the public? 13 14 Each individual school has the MR. CURTNER: A Object to the form. The NCAA does approve. Our approvals are based 15 on the use of NCAA trademarks and NCAA rules 16 within the video game that reflect reality of 17 the game -- of game -- the -- the game rules, 18 the field rules, the academic rules of the NCAA, 19 not specifically the -- the individuals within 20 the game. 21 individual school to make those approvals. 22 Q That's the role of the -- each So if the game included names of 23 student-athletes, current student-athletes, you 24 would have no role in approving or disapproving 25 that game based on the inclusion of those names? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 611b Page 170 1 2 game. Q 3 4 Was someone else actually physically playing the game while you observed? A You can actually have the computer play itself. 5 So that's the easiest way to watch it and see 6 what's going on. 7 Q 8 9 And did you set up the game to have the computer play itself, or was someone helping you? A 10 I was able -- I was able to get that far and let the computer play itself. 11 Q And what EA basketball games have you reviewed? 12 A I think probably about the same timeline. And I 13 don't recall if the last -- the last basketball 14 game was March -- was NCAA basketball -- or 15 March Madness 2010 or '9, but it would have been 16 the 2008, '9, or '10 time frame that I'd be more 17 familiar with. 18 Q And how often did you play those games? 19 A Similar to the football video game, very 20 infrequently. 21 times in a given year. 22 Q 23 24 25 Maybe -- maybe ten or a dozen And which game -- which version of the game did you play most often? A If I had to select one, I would say 2009 version. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 171 1 Q 2 Did you recognize student-athletes in any of the basketball games that you played? 3 MR. CURTNER: Objection. 4 A I did not. 5 Q What teams did you play when you played the 6 basketball games or observed the games being 7 played? 8 A 9 I would say similar to the other one, to the other answer in football, it was very much my 10 opportunity to look at the different venues, and 11 I probably selected venues at which I had 12 visited either for a game or another purpose to 13 see the similarity in -- in venue. 14 Q 15 16 When you observed the games, did you also review the rosters within the games? A I reviewed the rosters perhaps of -- of -- of a 17 few individual schools, but for no particular 18 purpose, I would say. 19 see the roster. 20 that, I saw the rosters. 21 Q When the game begins, you So for no other reason than Did you compare the roster within the EA video 22 game to the roster of that particular team in -- 23 in real life? 24 A I did not. 25 Q We used the term "name, image, and likeness" 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 177 1 2 actually happened in real life. Q 3 Do you know specifically what the change was, though? 4 5 MR. SLAUGHTER: A Objection. My recollection is in real life he scored a 6 touchdown. 7 was -- how that manifested itself, I don't 8 remember the exact play. 9 Q 10 Okay. And other than -- and who -- who was the MR. CURTNER: A 13 14 So how that running back, again, I'm sorry, Ian Johnson? 11 12 In this, he did not. Object to the form. In the Fiesta Bowl, there was a running back named Ian Johnson. Q And is Mr. Johnson's number 41? 15 MR. SLAUGHTER: 16 MR. CURTNER: Object to the form. Join. 17 A I don't know the answer to that. 18 Q Okay. So if I understand this correctly, if 19 they use a avatar that has the same height, 20 weight, position, school, skin color, and number 21 of Mr. Johnson, and have him run this Statute of 22 Liberty play, that would be okay -- 23 24 25 MR. SLAUGHTER: Q Object to -- -- if it's -- if it's slightly different than the play that was run in real life? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 104a; 16; 611b Page 178 1 2 MR. SLAUGHTER: A Object to form. 104a; 106; 611b Doing so would not affect the eligibility of 3 Mr. Johnson if someone perceived that to be a 4 representation of Mr. Johnson based on NCAA 5 bylaws. 6 Q Okay. Would Mr. John- -- Johnson be able to 7 license his height, weight, position, hair 8 color, facial features, home state, and position 9 to Electronic Arts and have that avatar be used 10 in a video game? 11 MR. CURTNER: 12 a legal opinion. 13 You may answer if you have some 14 15 Object to the form, calls for understanding. A I can only speak to the eligibility concern. If 16 he -- if Mr. Johnson decided to accept monetary 17 value for licensing his name and facial 18 features, likenesses, then that's his right to 19 do so. 20 compromised, and he would no longer be eligible 21 to play collegiate athletics. 22 Q Okay. However, his eligibility would be Well, let's take out fac- -- facial 23 feature, and so he licenses his height, weight, 24 position, hair color, home state, position, and 25 number to Electronic Arts. 212-279-9424 Would that affect VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 106; 611b; 701 Page 179 1 his eligibility? 2 MR. CURTNER: 3 MR. SLAUGHTER: 4 Object to the form. Object to the form, lacks foundation, incomplete hypothetical. 5 A And that, I don't know. 6 Q How come? 7 8 MR. SLAUGHTER: A MR. SLAUGHTER: A Object -- I don't -- 9 10 What -- what's the difference? Object to the form. I don't know that you can license those things 11 or cannot. 12 he would be interested, and I don't know if a 13 company would be interested in doing so. 14 Q 15 I understand. I -- I don't know if But do you know whether or not it would affect his eligibility? 16 17 I don't know. MR. SLAUGHTER: A Object to the form. If he were to -- if a -- if he were to accept 18 compensation from a commercial entity in return 19 for representing himself, then yes, that 20 would -- that would negatively impact his 21 eligibility. 22 Q Well, what do you mean by "representing 23 himself"? 24 him. 25 would be the problem in the scenario that I gave 212-279-9424 You wouldn't be using a picture of You wouldn't be using his name. VERITEXT REPORTING COMPANY www.veritext.com What 212-490-3430 106; 611b; 701 Page 180 1 you? 2 3 MR. SLAUGHTER: A Object to the form. I think the scenario you gave me was he was -- 4 he was licensing his own statistics or his own 5 image, if you will, or his own likeness. 6 that is indeed what he is licensing and 7 accepting monetary compensation for, then yes, 8 that damages his ability, because he said this 9 is me, and that damages his -- his eligibility 10 11 by NCAA bylaws. Q Because he says it's himself? 12 13 MR. CURTNER: Q 14 15 So if Object to the form. Is -- is that right? Is that what you just said? A If he is selling information as himself, then -- 16 without knowledge of law, then I suppose that is 17 right. 18 Q Okay. Well, let's assume Mr. Johnson is an 19 Electronic Arts video game while a current 20 student-athlete. 21 Well, let me strike that. Let's assume that No. 41 for Boise State 22 during this period of time is in an Electronic 23 Arts video game and that avatar matches the 24 height, weight, position, hair color, home state 25 of Mr. Johnson. 212-279-9424 That wouldn't affect his VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 106; 611b; 701 Page 193 1 that right? 2 A That is correct. 3 Q Do you have an understanding about why that 4 5 occurs? A The understanding that I have of why that occurs 6 is because they're looking for any advance 7 notice of things that could be problematic 8 and/or anything that could be an opportunity for 9 the NCAA to provide additional information or 10 additional assets to make that feature or 11 addition more robust than it may already be. 12 Q 13 Is EA generally receptive to comments and concerns expressed by the NCAA? 14 MR. ARAGON: Form. 15 MR. GREENFOGEL: Objection as to form. 16 A Very much so. 17 Q Is EA permitted to use the name or likeness of a 18 19 current student-athlete in any of its games? A 20 21 EA is not permitted to use the name or likeness of student-athletes. Q As far as you know, do any of EA's video games 22 use the name or likeness of an -- any current 23 NCAA student-athlete? 24 A As far as I know, they do not. 25 Q If EA had paid a current student-athlete for the 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 199 1 Q 2 Is that an accurate statement of NCAA policy as you understand it? 3 A It is. 4 Q Has that been, based on your experience at the 5 NCAA, the consistent practice at the NCAA? 6 A It has been. 7 Q I'd ask you to turn, if you would, please, to 8 Exhibit 339. That was one of the exhibits 9 counsel marked earlier in the day. 10 A Uh-huh. 11 Q And it's entitled "NCAA Corporate Champion and 12 Corporate Partner Marketing Guidelines, Revised 13 July 13th, 2010." 14 Right? 15 A Yes. 16 Q Would you turn to page 21 of that document. 17 A Okay. 18 Q There's a subparagraph there that's entitled, 19 "Use of Student-Athletes in NCAA-Related 20 Advertising or Communications." 21 Do you see that? 22 A Yes, I do. 23 Q Are you familiar with that section? 24 A Very familiar. 25 Q Why is it that you're very familiar? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 200 1 A This -- well, as discussed earlier, this was a 2 document that I was instrumental in putting 3 together. 4 student-athletes is a piece of our marketing 5 guidelines that is critical to everything we do 6 with our champions, our partners, and our 7 licensees. 8 Q 9 10 And -- and the use of Would you read paragraph 1 for the record, please. A Yes. Paragraph 1 reads, "Current NCAA 11 student-athletes with athletics eligibility 12 remaining or their names, pictures, or 13 likenesses may not be used in any advertising, 14 marketing, or communication activities." 15 Q 16 Based on your years of experience at the NCAA, is that a correct statement of NCAA policy? 17 A Yes, that is a correct statement. 18 Q Based on your years of experience at the NCAA, 19 20 has that been a consistent practice of the NCAA? A It has been. And I should point out that 21 although these guidelines have been revised from 22 time to time, that -- that piece has not 23 changed. 24 Q What was done with these guidelines? 25 A These guidelines are supplied to the NCAA 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 201 1 corporate champions and partners as well as the 2 NCAA broadcast partners so as to help them 3 understand the -- the marketing opportunities 4 that they have with the assets of the NCAA. 5 Q Would you look at the second paragraph of that 6 subparagraph G and read the first sentence for 7 the record, please. 8 A 9 Sure. "Personalities retired from any sport may appear in advertising, marketing, or 10 communications activities provided that the CC/P 11 obtains the individual's consent." 12 Q Now, it says, "Personalities retired from any 13 sport." Would that include what we've been 14 referring to as former student-athletes? 15 A That's right. 16 Q Or -- or individuals who have exhausted or 17 renounced their remaining eligibility for 18 collegiate athletics? 19 A That's correct. 20 Q And has -- is that an accurate statement of NCAA 21 practice based on your experience? 22 A That is. 23 Q Does the NCAA license in any way individual 24 rights to the use of their name, image, likeness 25 in advertising, marketing, or communications 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 202 1 activities? 2 MR. GREENFOGEL: 3 MR. ARAGON: 4 A No. Objection as to form. Form. The NCAA doesn't have rights to individual 5 likeness or -- or appearance or names. 6 any business dealings having to deal with that 7 would be through the individual or the school of 8 the individual, not through the NCAA. 9 Q Any -- Do you know whether or not commercial interests 10 such as corporate champions and partners or 11 other commercial interests, in fact, do obtain 12 releases from former student-athletes and pay 13 them money for their consent to appear in 14 advertising, marketing, or communications 15 activities? 16 A Yes. 17 18 MR. GREENFOGEL: Q 19 20 Objection as to form. And what is the -- the source or the basis for your information in that regard? A Experience. We direct our sponsors, our 21 corporate champions and partners, and/or our 22 licensees to work directly with individuals if 23 utilizing names or images. 24 25 Q And do you know whether there is an active trade or business in obtaining and paying for those 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 203 611c 1 2 rights? A There is. In fact, we utilize -- Thought Equity 3 has the ability -- it's a vendor of the NCAA -- 4 has the ability -- I guess they're called T3 5 now. 6 they provide to champions, partners, and 7 licensees -- if they are in need of obtaining 8 permission and authorization from individuals to 9 use their likeness, T3 will do that on behalf of 10 11 103 But T3 has the ability and service that the commercial entity. Q If the NCAA does not own those rights or control 12 those rights to individuals -- name, image, 13 likeness of former student-athletes, why does it 14 encourage its corporate partners or champions to 15 obtain a clearance and pay where appropriate to 16 obtain those rights? 17 A Well, while it may not be our responsibility to 18 do so, certainly we are interested in the 19 welfare of our former student-athletes and 20 certainly interested in the partnerships we have 21 developed. 22 anything else we do with our sponsors, that we 23 help them clear hurdles that they may or may not 24 be aware of to make sure that their promotional 25 activities, marketing activities, run as 212-279-9424 So we want to make sure, just as in VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 204 103 1 2 smoothly and -- and without issue as possible. Q 3 Would you look at Exhibit 336 from earlier today, please. 4 A Okay. 5 Q This was a document that was -- included some 6 e-mail chain, including some to and from you. 7 A Uh-huh. 8 Q And there's one statement in an e-mail from you 9 in March of 2009 to someone at Nike -- 10 A Uh-huh. 11 Q -- where you say, "And on top of below, we can't 12 provide rights to the individuals in the video 13 clips, so Nike or Thought Equity has to clear 14 each player/coach shown." 15 you were telling Nike that they should use 16 five-year or older footage so that there would 17 be no one or part of anyone with eligibility 18 remaining. 19 And then down below, Do you remember these events? 20 A I do. 21 Q So could you explain for the record, please, why 22 you were concerned about not using footage that 23 was newer than five years old. 24 25 A Certainly. One, to protect Nike, making sure that they did not cause any eligibility concerns 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 205 1 for currently eligible student-athletes that may 2 be part of the video sequence that they utilize 3 in their advertising. 4 that is to make sure that we're working on -- to 5 the degree we can, the school's behalf in a 6 larger picture, to make sure that the 7 individuals are protected and -- and their 8 eligibility is protected. 9 Q And then secondary to And then for those people who appear in such 10 clips five years or older whose eligibility 11 would be exhausted, you say you can't provide 12 those rights; is that -- 13 A 14 15 That's right. those rights to convey. Q 16 And then you say, "Thought Equity or Nike has to clear each player/coach shown." 17 18 Yeah, the NCAA does not have What does it mean to clear? A Typically what that means would be that the 19 20 Equity, as I've described, now known as T3, 21 would need to contact each player or coach 22 and/or their representation, their agent, to get 23 their authorization to be included within the 24 611c commercial entity, Nike in this case or Thought Nike advertisement. 25 Q And is that a form of permission or clearance or 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 206 611c 1 authorization that they can get from the NCAA? 2 A It is not. 3 Q And why not? 4 A The NCAA does not have rights to individual 5 players or coaches to convey. 6 7 MR. CURTNER: Thank you. else. 8 MR. ARAGON: 9 MR. GREENFOGEL: 10 MR. CURTNER: deposition. 13 14 I have no further questions. Me neither. Thank you very much. 11 12 I have nothing We're done. This closes the We'll read and sign as usual. THE VIDEOGRAPHER: We're off the record at 3:58 p.m. 15 16 17 (Time noted: 3:58 p.m.) AND FURTHER DEPONENT SAITH NOT. 18 19 20 21 22 23 24 25 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 209 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 18th 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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