O'Bannon, Jr. v. National Collegiate Athletic Association et al

Filing 237

Administrative Motion to File Under Seal Defendant NCAA's Deposition Designations filed by National Collegiate Athletic Association. (Attachments: #1 Declaration of Jeslyn A. Miller, #2 Proposed Order, #3 NCAA's Deposition Designations, #4 Exhibit A, #5 Exhibit B, #6 Exhibit C, #7 Exhibit D, #8 Exhibit E, #9 Exhibit F, #10 Exhibit G, #11 Exhibit H, #12 Exhibit I, #13 Exhibit J, #14 Exhibit K, #15 Exhibit L, #16 Exhibit M, #17 Exhibit N, #18 Exhibit O, #19 Exhibit P, #20 Exhibit Q, #21 Exhibit R, #22 Exhibit S, #23 Exhibit T, #24 Exhibit U, #25 Exhibit V - REDACTED, #26 Exhibit V - SEALED, #27 Exhibit W, #28 Exhibit X, #29 Exhibit Y, #30 Exhibit Z, #31 Exhibit AA, #32 Exhibit BB)(Miller, Jeslyn) (Filed on 6/23/2014) Modified on 6/24/2014 (kcS, COURT STAFF).

EXHIBIT 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

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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?

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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?

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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

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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

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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

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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.

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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

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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.

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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

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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.)

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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.

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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

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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

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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.)

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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

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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,

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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.

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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?

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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:

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Objection, foundation.

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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

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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

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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

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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

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And this is from Erika

And I would ask if this is a

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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.

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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,

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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?

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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

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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

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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

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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.

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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?

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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?

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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.

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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"

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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?

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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.

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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

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You wouldn't be using his name.

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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.

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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

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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?

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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

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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

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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

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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

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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

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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

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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.

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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

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19
20
21
22
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