O'Bannon, Jr. v. National Collegiate Athletic Association et al
RESPONSE (re #240 MOTION to Admit Exhibits ) Defendant NCAA's Oppositon to Motion to Admit Exhibits filed byNational Collegiate Athletic Association. (Pomerantz, Glenn) (Filed on 6/24/2014)
1 GLENN D. POMERANTZ (State Bar No. 112503)
2 KELLY M. KLAUS (State Bar No. 161091)
3 CAROLYN HOECKER LUEDTKE (State Bar No. 207976)
4 ROHIT K. SINGLA (State Bar No. 213057)
5 MUNGER, TOLLES & OLSON LLP
560 Mission Street
6 Twenty-Seventh Floor
San Francisco, California 94105-2907
GREGORY L. CURTNER (Pro Hac Vice)
ROBERT J. WIERENGA (State Bar No. 183687)
KIMBERLY K. KEFALAS (Pro Hac Vice)
SCHIFF HARDIN LLP
12 350 Main St., Suite 210
Ann Arbor, MI 48104
Attorneys for Defendant
15 National Collegiate Athletic Association
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA, OAKLAND DIVISION
EDWARD O’BANNON, et al.,
Case No. 4:09-CV-3329-CW
DEFENDANT NCAA’S OPPOSITION TO
MOTION TO ADMIT EXHIBITS
Judge: Hon. Claudia Wilken
23 NATIONAL COLLEGIATE ATHLETIC
24 LICENSING COMPANY; and
ELECTRONIC ARTS INC.,
Hon. Claudia Wilken
Courtroom: 2, 4th Floor
June 9, 2014
NCAA’S OPPOSITION TO MOTION TO ADMIT EXHIBITS
The NCAA opposes Plaintiffs’ motion to admit the following trial exhibits.
PX 2564: This exhibit was prepared by Dr. Rascher and purports to list “possible related-
3 party transactions” at college athletic departments. Plaintiffs’ claim that this is a “summary
4 exhibit” is incorrect. PX 2564 does not summarize the content of voluminous data or writings
5 contained in admissible evidence, as required by Fed. R. Evid. 1006. Rather, this exhibit is simply
6 an argumentative list of supposed “revenues under-valued” and “expenses over-valued” in college
7 athletics budgets. Plaintiffs have not identified any underlying data or writings that would be
8 admissible evidence and that are accurately summarized by this exhibit. Dr. Rascher testified
9 regarding his opinion about how expenses and revenues in athletic departments are accounted for,
10 and the proposed exhibit is merely a summary of his testimony, which is not admissible as
11 evidence. “Summary of purely testimonial evidence is … not within the purview of FRE 1006.”
12 Sims v. Lakeside Sch., C06-1412RSM, 2008 WL 189674 (W.D. Wash. Jan. 17, 2008).
PX 2282: This is a Knight Commission report, and the Court has already ruled that
14 “Plaintiffs may not introduce any media reports or reports produced by third-party groups, such as
15 the Knight Commission, for the truth of the matter asserted in those reports.” Order Resolving
16 Motions in Limine, Dkt. 166, at 7. Plaintiffs’ end-run around the Court’s order should be rejected.
17 Plaintiffs now argue that the report is admissible because former NCAA President Cedric
18 Dempsey was one of 27 people who signed the letter of transmittal accompanying the report. PX
19 2282-6. There is no indication that in signing the letter of transmittal, Mr. Dempsey intended to
20 adopt all the statements in the report itself as his own, and much less is there any indication that
21 Mr. Dempsey intended to adopt the statements in the report as statements of the NCAA. To the
22 contrary, the report actually contains quotations from Mr. Dempsey, PX 2282-16-17, which belies
23 Plaintiffs’ suggestion that the entire report should be characterized as a statement of Mr. Dempsey.
PX 2046: This document is a hearsay statement by a university president that relays a
25 second hearsay statement by an athletic director at a different university. Plaintiffs contend these
26 two declarants were acting as agents of the NCAA by virtue of their participation in a task force,
27 and argue that their statements are admissible under Fed. R. Evid. 801(d)(2)(D). To determine the
28 admissibility of a statement under Rule 801(d)(2)(D), the Court “must undertake a fact-based
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1 inquiry applying common law principles of agency.” United States v. Bonds, 608 F.3d 495, 504
2 (9th Cir. 2010). The “essential ingredient [in determining the existence of an agency relationship]
3 is the extent of control exercised by the employer.” Id., at 505. Here, there is not a shred of
4 evidence that university employees who sit on NCAA task forces act as agents of the NCAA. The
5 NCAA does not exercise any control or authority over members of task forces, who at most could
6 be characterized as outside advisors who are not authorized to speak on behalf of the NCAA. Cf.
7 id. (independent contractors are not agents for purposes of Rule 801(d)(2)(D). Plaintiffs
8 alternatively argue that Mr. Spanier’s statement is admissible under the co-conspirator exception,
9 but they simply assert that this statement was in furtherance of the alleged conspiracy without
10 offering any evidentiary basis for this assertion. Even if Mr. Spanier’s hearsay statement were
11 admissible under the co-conspirator exception, that would not apply to the double-hearsay
12 statement of Ms. Altmaier, which is not admissible for its truth.
PX 280: This document collects various hearsay statements made by presidents of
14 universities in the Atlantic Coast Conference regarding a variety of issues in intercollegiate
15 athletics. Among other topics, the statements refer to the ACC academic collaboration report,
16 NCAA championships air travel policy, and the equitable treatment of pregnant student-athletes.
17 Plaintiffs contend all of these statements are admissible as co-conspirator statements. This
18 argument serves only to illustrate the overbreadth of Plaintiffs’ reliance on the co-conspirator
19 exception. It appears that under Plaintiffs’ theory, any statement by any college employee
20 regarding any issue in collegiate athletics would be admissible under the co-conspirator exception.
21 Plaintiffs also assert that these particular statements were “made to determine how best to protect
22 the conspiracy from the antitrust laws,” but there is no basis in this document for suggesting that
23 this was the purpose of any of these statements. Only one of the comments, from Nancy Zimpher,
24 refers vaguely to the concept of an antitrust exemption, but the document says that “Nancy did not
25 support that option.” In any event, Plaintiffs have not proposed admitting only Ms. Zimpher’s
26 comment, but have sought to admit this entire document.
PX 2598: The NCAA does not object to this exhibit.
PX 2603: The NCAA does not object to this exhibit.
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PX 2604: The NCAA does not object to this exhibit.
PX 2014: This is an internal CLC document; there is no indication that anyone at the
3 NCAA was ever aware of this document or its contents. Plaintiffs contend that this document is
4 admissible because “CLC remains an adverse party-opponent in this litigation.” That might make
5 the document admissible against CLC, but it is no basis for admitting the document against the
6 NCAA. See, e.g., United States v. Castro, 887 F.2d 988, 999-1000 (9th Cir. 1989) (“Statements
7 by party-opponents are not hearsay and are admissible provided the statement is offered against
8 the party and is the party's own statement.”) (emphasis added).
PX 2487: This document is a NCAA report based on a survey of Division I Presidents.
10 The NCAA does not contest that the report itself is non-hearsay because it was requested and
11 authorized by the NCAA. However, much of the report consists of comments made by
12 anonymous Division I Presidents, and there is no indication that the NCAA either intended to
13 adopt these statements as its own or made any attempt to verify the accuracy of these comments.
14 All of these comments and the summaries of these comments contained within the report are
15 hearsay within hearsay, and are not admissible for their truth. See Shimozono v. May Dep’t Stores
16 Co., 00-04261 WJR (AJWx), 2002 WL 34373490, *13 (C.D. Cal. Nov. 20, 2002) (“If the records
17 contain information obtained from a customer, thus constituting hearsay within hearsay, the
18 records will come within the business records exception only ‘if it is shown that the business’s
19 standard practice was to verify the information provided.’”) (quoting U.S. v. Mitchell, 49 F.3d 769,
20 778 (D.C.Cir.1995)).
PX 2095: This document is an email from an independent consultant to the NCAA,
22 attaching a presentation authored by two university presidents. Plaintiffs again attempt to rely on
23 the co-conspirator exception, but again their argument is overbroad. The statements in this
24 presentation touch on a wide variety of issues in intercollegiate athletics. Most of the presentation
25 refers to a number of proposed reforms to collegiate athletics that have nothing to do with
26 Plaintiffs’ alleged conspiracy. In the alternative, Plaintiffs suggest this presentation is admissible
27 to show “the feasibility of reforms.” But the NCAA has not contested the feasibility of the
-3NCAA’S OPPOSITION TO MOTION TO ADMIT EXHIBITS
1 specific reforms identified in this presentation, so it is inadmissible for that purpose. Burleson v.
2 Samson, 2:00-CV-01591-JKS, 2007 WL 2688840 at *1 (E.D. Cal. Sept. 13, 2007).
PX 2527: Plaintiffs again rely on the co-conspirator exception to seek to admit a document
4 that discusses a wide range of issues in intercollegiate athletics. For the reasons given above, the
5 Court should reject this argument. Plaintiffs also assert that this document shows the feasibility of
6 reforms, but the NCAA has not contested the feasibility of the specific reforms identified in this
PX 2616: The NCAA does not object to the admission of this exhibit.
PX 2287-1 and -17: Plaintiffs propose admitting these pages from the Knight Commission
10 to show the fact that a proposal to change the NCAA’s revenue distribution model was made and
11 not acted upon by the NCAA. Admission of this exhibit for that purpose would be cumulative, as
12 Plaintiffs already questioned Dr. Emmert at length about this proposal in Court. Tr. 1993:1513 1996:12.
PX 2057-20: This is a page from a presentation that was attached to a NCAA email. The
15 author of the presentation is unidentified, and Plaintiffs have now taken two positions as to who
16 authored and made this presentation. In Court, Mr. Isaacson represented that the presentation is “a
17 deck from Jamie Zaninovich. He was the Commissioner of the West Coast Conference” Tr.
18 1811:23-24. Mr. Isaacson then went on to specifically say that page 2057-20 represents the views
19 of Mr. Zaninovich. Tr. 1813:23; Tr. 1814:15-16. In their motion to admit this document,
20 Plaintiffs now claim that the presentation was made “by Mr. Shaheen,” a former NCAA employee.
21 Plaintiffs’ contradictory positions establish that this document is inadmissible. If Plaintiffs cannot
22 even identify who authored this presentation, or whether it was made by a NCAA employee or a
23 conference employee, then there is no foundation for the admission of this document.
DX 3081: This document is titled “Discussion of the Application of the Recommendations
25 of the NCAA Study Group on the Use of Student-Athletes’ Names and Likenesses.” There is no
26 author identified on the document, nor does the document indicate what its purpose was or the
27 context in which it was prepared. Plaintiffs have had the opportunity at trial to question Chris
28 Plonsky, who was a member of the Study Group, about this document to lay some foundation for
-4NCAA’S OPPOSITION TO MOTION TO ADMIT EXHIBITS
1 its admission, but they declined to do so. Plaintiffs assert that the document should be admitted
2 merely because it was produced by the NCAA in discovery. Courts have rejected exactly that
3 argument for similar documents lacking any author or context. See, e.g., Adams v. United States,
4 CIV. 03-0049-E-BLW, 2009 WL 1922250 (D. Idaho June 30, 2009) (“This is an August 28,
5 2000, ‘Issue Paper’. … While the document was produced by the BLM in discovery, there is no
6 author identified on the document. The document was prepared by someone on the “Idaho State
7 Office EFR Team,” but the nature and duties of that team are not clear from the submission. If
8 there has been testimony on this at trial, the Court does not recall it. For these reasons, the Court
9 finds this exhibit inadmissible at this time under Rules 106, 611, and 403 because there is no
10 supporting witness to explain the creation of this document.”).
DATED: June 24, 2014
MUNGER, TOLLES & OLSON LLP
/s/ Glenn D. Pomerantz
GLENN D. POMERANTZ
Attorneys for Defendant
National Collegiate Athletic Association
-5NCAA’S OPPOSITION TO MOTION TO ADMIT EXHIBITS
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