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
212-279-9424
I don't recall specifically his --
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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
212-279-9424
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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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
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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
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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.
18
19
20
21
22
23
24
25
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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
18
19
20
21
22
23
24
25
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