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

Filing 255

Defendant NCAA's Notice of Motion and Motion to Admit Exhibits by National Collegiate Athletic Association (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F, #7 Exhibit G, #8 Exhibit H, #9 Exhibit I, #10 Exhibit J, #11 Exhibit K, #12 Proposed Order)(Miller, Jeslyn) (Filed on 6/27/2014) Modified on 6/30/2014 (cpS, COURT STAFF).

Download PDF
1 GLENN D. POMERANTZ (State Bar No. 112503) glenn.pomerantz@mto.com 2 KELLY M. KLAUS (State Bar No. 161091) kelly.klaus@mto.com 3 CAROLYN HOECKER LUEDTKE (State Bar No. 207976) carolyn.luedtke@mto.com 4 ROHIT K. SINGLA (State Bar No. 213057) rohit.singla@mto.com 5 MUNGER, TOLLES & OLSON LLP 560 Mission Street 6 Twenty-Seventh Floor San Francisco, California 94105-2907 7 Telephone: (415) 512-4000 Facsimile: (415) 512-4077 8 GREGORY L. CURTNER (Pro Hac Vice) 9 gcurtner@schiffhardin.com ROBERT J. WIERENGA (State Bar No. 183687) 10 rwierenga@schiffhardin.com KIMBERLY K. KEFALAS (Pro Hac Vice) 11 kkefalas@schiffhardin.com SCHIFF HARDIN LLP 12 350 Main St., Suite 210 Ann Arbor, MI 48104 13 Telephone: (734) 222-1500 Facsimile: (734) 222-1501 14 Attorneys for Defendant 15 National Collegiate Athletic Association 16 UNITED STATES DISTRICT COURT 17 NORTHERN DISTRICT OF CALIFORNIA, OAKLAND DIVISION 18 19 EDWARD O’BANNON, et al., Case No. 4:09-CV-3329-CW 20 21 Plaintiffs, 22 DEFENDANT NCAA’S NOTICE OF MOTION AND MOTION TO ADMIT EXHIBITS v. Judge: Hon. Claudia Wilken 23 NATIONAL COLLEGIATE ATHLETIC ASSOCIATION; COLLEGIATE 24 LICENSING COMPANY; and ELECTRONIC ARTS INC., 25 Defendants. 26 Judge: Hon. Claudia Wilken Courtroom: 2, 4th Floor Trial: June 9, 2014 27 28 09-CV-3329-CW NCAA’S OPPOSITION TO MOTION TO ADMIT EXHIBITS 1 NOTICE OF MOTION AND MOTION 2 PLEASE TAKE NOTICE that on June 27, 2014, or as soon as it may be heard, in the 3 above-referenced Court, Defendant National Collegiate Athletic Association (“NCAA”) will move 4 to admit certain exhibits, as further described herein. 5 1. 6 The NCAA respectfully moves to admit TX 3741 and 3742, which are autobiographies Books Authored By Named Plaintiffs 7 authored by class representatives David Lattin and Oscar Robertson. 8 These exhibits are non-hearsay statements of a party opponent under Federal Rule of 9 801(d)(2)(A), (B), and (C). See, e.g., Pierce v. Cnty. of Orange, 526 F.3d 1190, 1202 (9th Cir. 10 2008) (representative of the class is a party-opponent for Rule 801 purposes). 11 TX 3741 and 3742 discuss named plaintiffs’ experiences as student-athletes, and thus are 12 highly relevant to NCAA’s joint venture defense and procompetitive justifications and to refute 13 Plaintiffs’ representations that student-athlete football and men’s basketball players do not take 14 their education seriously. This testimony is not cumulative: The NCAA did not have reason to 15 explore the themes of education and live broadcast at the depositions of Lattin or Robertson, 16 which were taken before the addition of Plaintiffs’ live broadcast theory in this case. Further, 17 these excerpts provide additional context regarding student-athletes’ collegiate experience that is 18 necessary to compliment the testimony of the three plaintiffs, Ed O’Bannon, Tyrone Prothro, and 19 Chase Garnham, that Plaintiffs hand-picked to provide live testimony at trial. 20 Specifically, the NCAA moves to admit the following excerpts of named plaintiffs’ books: 21 • TX 3741 at 1, 5-6, 9-11, 15-16, 25-27, 31, 37, 66-67, 75, 81-84, 142, 148 (attached 22 hereto as Exhibit A), which is excerpts of a book titled “The Big O: My Life, My 23 Times, My Game” authored by class representative Oscar Robertson. Mr. 24 Robertson stated during deposition that he co-authored TX 3741. See 12/7/2012 25 Depo. at 216:12-18 (attached hereto as Exhibit K). TX 3741 contains descriptions 26 of Mr. Robertson’s collegiate experience, including that basketball provided an 27 opportunity to attend college, that it was “really something” to appear on television, 28 -1NCAA’S OPPOSITION TO MOTION TO ADMIT EXHIBITS 09-CV-3329-CW 1 and that playing basketball in college was a different experience than playing 2 basketball professionally. 3 • TX 3742 at 1, 3-4, 13-14, 73, 76, 229 (attached hereto as Exhibit B), which is 4 excerpts of a book titled “Slam Dunk to Glory” authored by class representative 5 David Lattin. Mr. Lattin identified himself as the author of TX 3742 at his 6 deposition in this case. See 12/7/2012 Depo. at 44:18-45:2 (Dkt. No. 237-15). In 7 TX 3742, Mr. Lattin describes his experience receiving an education at Texas 8 Western and also playing basketball, including that his coach encouraged education 9 and an athletic scholarship was the “only way” for him to receive a college 10 education. See, e.g., TX 3742 at 73, 76. 11 2. 12 The NCAA also respectfully moves to admit the following exhibits, which are contracts Contracts 13 for the broadcast of college football and basketball games: TX 2102, 2110, 2117, 2119, 2141, 14 2147, 2179, and 3086. These contracts are squarely relevant to Plaintiffs’ claims that there is a 15 market for NIL rights in live broadcasts. The contracts are not hearsay because they are being 16 offered as legal acts rather than the truth of their contents. See, e.g., W. Coast Truck Lines, Inc. v. 17 Arcata Cmty. Recycling Ctr., Inc., 846 F.2d 1239, 1246 n.5 (9th Cir. 1988) (“It is well established 18 that statements which may themselves affect the legal rights of the parties are not considered 19 hearsay under the Federal Rules of Evidence.”); Mueller v. Abdnor, 972 F.2d 931, 937 (8th Cir. 20 1992) (“A contract, for example, is a form of verbal act to which the law attaches duties and 21 liabilities and therefore is not hearsay.”); Fed. R. Evid. 801(c), advisory committee note (“The 22 effect is to exclude from hearsay the entire category of ‘verbal acts’ and ‘verbal parts of an act,’ in 23 which the statement itself affects the legal rights of the parities or is a circumstance bearing on 24 conduct affecting their rights.”). In addition, the contracts are being admitted to show the absence 25 of any contractual provision granting NIL rights in live broadcasts, and thus not for a hearsay 26 purpose. See United States v. Oaxaca, 569 F.2d 518 (9th Cir. 1978) (“In order to constitute 27 hearsay, evidence must be assertive or testimonial in character and must be introduced to prove the 28 truth of the matter asserted.”); 4 Jones on Evidence § 24:15 (7th ed.) (“Most courts hold that in the -2NCAA’S OPPOSITION TO MOTION TO ADMIT EXHIBITS 09-CV-3329-CW 1 absence of an identifiable ‘declarant’ who intended his silence to communicate, silence or the 2 absence of a statement is not hearsay.”). Accordingly, the contracts should be admitted, as 3 numerous others were during the course of the trial. 4 During meet-and-confer, Plaintiffs’ only objection to the admission of these contracts was 5 that they are “cumulative” of other contracts that have already been admitted. Plaintiffs are 6 wrong. Evidence of broadcast licenses is directly relevant and should be received. Plaintiffs have 7 alleged a national market for group licenses of supposed rights to use student-athletes’ NILs in 8 live broadcasts of college football and basketball games. The claim concerns hundreds of colleges 9 and dozens of conferences that have multiple agreements with numerous networks. As such, 10 evidence reflecting broadcasting practices around the country is particularly relevant to evaluating 11 Plaintiffs’ claims in this case. 12 Specifically, the NCAA moves to admit the following contracts: 13 • TX 2102 (attached hereto as Exhibit C), which is an agreement between 14 Southeastern Conference (“SEC”) and ESPN, Inc., dated as of May 31, 1994, 15 granting ESPN exclusive television rights to broadcast certain SEC athletics events. 16 • TX 2110 (attached hereto as Exhibit D), which is an agreement between 17 Southeastern Conference (“SEC”) and ESPN, Inc., dated as of June 4, 1999, 18 granting ESPN exclusive television rights to broadcast certain SEC athletics events. 19 • TX 2117 (attached hereto as Exhibit E), which is an agreement between The Big 20 Twelve Conference and ABC Sports, ESPN, Inc., and ESPN Regional Television, 21 dated March 11, 2000, relating to the exclusive television broadcast of Conference 22 football games. 23 • TX 2119 (attached hereto as Exhibit F), which is an agreement between the 24 Atlantic Coast Conference (ACC) and Raycom Sports, Inc. and Jefferson-Pilot 25 Sports, Inc., dated as of June 23, 2000, regarding exclusive telecast rights to certain 26 ACC men’s and women’s basketball games. 27 28 • TX 2141 (attached hereto as Exhibit G), which is an agreement between the University of Georgia Athletic Association and Cable Sports Southeast, LLC, dated -3NCAA’S OPPOSITION TO MOTION TO ADMIT EXHIBITS 09-CV-3329-CW 1 May 5, 2005, regarding the television broadcast and rebroadcast of certain 2 University of Georgia athletics events. 3 • TX 2147 (attached hereto as Exhibit H), which is an agreement between Atlantic 10 4 Conference and CSTV Networks, Inc., dated as of December 31, 2005, regarding 5 the television broadcast rights to certain athletics events. 6 • TX 2179 (attached hereto as Exhibit I), which is an agreement between University 7 of Notre Dame and NBC Sports, dated June 13, 2008, regarding the television 8 broadcast rights to certain football games. 9 • TX 3086 (attached hereto as Exhibit J), which is an agreement between the Atlantic 10 Coast Conference, Big East Conference, Big Ten Conference, The Big Twelve 11 Conference, Inc., Conference USA, Mid-American Conference, Mountain West 12 Conference, Pacific-10 Conference, Southeastern Conference, Sun Belt 13 Conference, and Western Athletic Conference, and University of Notre Dame, and 14 Fox Sports Productions, Inc., dated as of April 1, 2006, regarding the exclusive 15 television rights to broadcast certain National Championship collegiate football 16 games. 17 18 19 Respectfully submitted, 20 MUNGER, TOLLES & OLSON LLP 21 DATED: June 27, 2014 22 23 24 25 By: /s/ Jeslyn A. Miller JESLYN A. MILLER Attorneys for Defendant National Collegiate Athletic Association 26 27 28 -4NCAA’S OPPOSITION TO MOTION TO ADMIT EXHIBITS 09-CV-3329-CW

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?