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).

EXHIBIT H

EXECUTION VERSION
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CSTV/ATLANTIC-10 ("A10")
HEADS OF AGREEMENT
THIS HEADS OF AGREEMENT effective as of December 31, 2005 by and between CSTV Networks, Inc.

rcsTV"), 851011 Avenue, New York, New York 10011 and CSTV Online, Inc., at the same address rcsTVOj on
the one hand, and the AHantic 10 C-onference, 230 S. Broad Street, Suite 1700, Philadelphia, PA 1910? (f!A10") on
the other.
I.

The parties intend ~,enter into a marketing and sponsorship and multimedia license; production,
exhibition and distribUtion agreement with respect to certain sporting events and other related matters
conducted by A10 (the 'Distribution Arrangement').
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II.

The parties hereto shall use good faith efforts to negotiate a definitive agreement for the Distribution
Arrangement. Until execution of such definitive agreement, this Heads of Agreement sets forth the
principaJ terms of the Distribution Agreement and shall be deemed binding in accordance with the
terms hereof.

t!§BM
a. Five years, beginning July 1, 2006 through June 30, 2011 {the •tnitial Term}, v,ittta:..1omatic rertewal for an
additionaJ two years, through June 30, 2013 (the •2013 Termj, so long as CSTV has achieved the·Ben~marks
(as hereinafter defined). The Benchmarks shaJl mean CSTV's programming service, CSTV: Co118ge·8ports.
Television (the ·service} has achieved 30 million national subscribers, ~nciuding three mftlion subscribers in the
A1o footprint {WhiCh must include carriage by dominant distributor ·n at least i ht of the A10 desi nated
television
' • o later than June , 2010 or alte atively CSTV shall have written
commitments as of June 1, 2010 for launches to 30 million su scribers, including three mlrron subscribers in
the A10 footprint {which must include carriage by the dominant distributor in at least eight of the A10 DMA's as
listed on Exhibit A), effective no later than December 31, 2010; provided that if such subscribers are not added
by December 31, 2010, the extension may be cancelled by A10 not later than January 31,2011 and the right of
FNIFR (as hereafter defined) shall commence upon delivery of such notice by A10. If CSTV has not achieved
the Benchmarks by the required dates, CSTV will instead have an exclusive right of first negotiation (•FNjlfirst
refusal rFRj, which will operate as follows: commencing as of June 1, 2010, the parties shaD engage in an
exclusive 60-day first negotiation period. If at the end of such 60-day period the parties have not reached an
agreement, then CSTV shall make a final offertoA10, which A10 shall have seven business days to accept or
reject c·csTV Anal Offer'). In the event that A10 rejects such CSTV Final Offer, then A1O.shall be required to
provide CSTV with terms and conditions it is wilfing to accept which must be comparable in scope with respect
to rights and benefits to those contained herein and provided further any such offer is an offer fOr at. least three
years (''A10 Final Offer}. CSTV shaJI then have seven business days to accept or reject any such A10 Anal
Offer. In the event CSTV rejects the A10 Final Offer or does not respond within seven days, A10 may negotiate
with third parties. A10 must give CSTV the right to match the economic terms of ariy third party offer that taken
in the aggregate, is more favorable to the third party than the A10 Final Offer (the •Reofferj. CSTV shall
accept or reject a Reoffer by A10 no later than seven days from its receipt. If the Initial Tenn Is extended to
June 30, 2013 as set forth above, or to another later date, CSTV will have the FNIFR as set forth above, the FN
to commence as of June 1 of the year prior to the expiration of the agreement (i.e., if the agreement expires as
of June 30,2013, the FNIFR commences as of June 1, 2012).
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b. The Initial Tenn and the 2013 Term shall be hereinafter collectively be deemed the "Term" and each contract
year during the Tenn shall be denoted by the applicable school season, i.e., contract year one shall be the
"2006- 2007 Season;" contract year two shall be the ~2007-2008 Season"; etc.
c. If ESPN's package of rights expires (which agreement with ESPN will provide for initial expiration after the
2000..2010 Season} or is terminated for any reason during the Term~ CSTV shall have a 60-day FN for such
package of rights, but shall only have an FR if CSTV has achieved distribution at such time of not less than 50
mHiion subscribers for the Ser.1ce or not less tr.an 40 million subscribers ptus binding written commitments to
increase to not less than 50 million subscribers within one year. The FNIFR rights will operate as follows:
commencing upon notice provided by the A10, the parties shall engage in an exclusive 60-day FN period. If at
the end of such 60-day period the parties have not reached an agreement, then CSTV shall make a CSTV Final
Offer to A10, which A10 shall have seven business days to accept or reject. In the event that A10 rejects such
CSTV Final Offer, then A10 shall be required to provide CSTV with an A10 Final Offer. CSTV shall then have
seven business days to accept or reject any such A10 Final Offer. In the event CSTV rejects the A10 Final
Offer or does not respond within seven days, A1 0 may negotiate with third parties. If CSTV has FR rights, A10
must make a Reoffer with respect to any third party offer that taken in the aggregate is more favorable to the
third party than the A1 0 Final Offer. CSTV shall accept or reject a Reoffer by A10 no later than seven days
from its receipt. The rights in this paragraph will be subject to any rights of FR that A10 has granted to ESPN.
d. A10 shall have the right to terminate this Agreement upon written notice to CSJV without any further liability
to A10 or any of the member inst'tutions if CSTV ceases to continue to telecast A10 programming on a
continuing basis, subject in any case to the notice and cure provisions set forth in subsection •e• below.
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e. If either party shall default in a material manner with respect to any material provision of this Agreemen~ the
other party may give the defaulting party written notice of such default and the defaulting party shall have thirty
{30) days to cure such default If such default is not cured within such thirty (30) day period, the nondefaulting
party shall have the right, upon notice to the defaulting party and without prejudice to any other rights the
nondefaulting party may have, to terminate this Agreement unless the defaulting party is in the process of
attempting in good faith to remedy such default, in which case the thirty {30) day cure period shall be extended
by an additional forty-five {45) days.

2. TELEVISION AND BROADBAND RIGHTS
a. A10 grants to CSTV exclusive rights in all media, now known or hereinafter invented Qncluding without
limitation over-the-air, cable, sateflite, onfinelbroadband, hkief, v.'i.reless, DVD and VOD) to cert.ain regular
season A10 men's and women's basketball games (i.e., games in which the participants are two A10 members
and home non-conference games) and the A10 men's and women's basketball tournaments, subject only to (i)
ESPN's exclusive rights to distribute up to 14 men~s basketball games per season (of which no more than 8
total will be distributed on ESPN or ESPN 2·arid no more than 6 will be distributed on ESPNU) and the finals of
the A10 men's basketball tournament and two women's basketball games per season and the finals of the A10
women's basketball tournament; and OQ Local Carriage Telecasts, as permitted only in accordance with the
terms set forth in Section 7 below. It is acknowledged that «neutra~ games are excluded from !he rights
granted hereunder, provided that any such games shaH not be games from the regular season conference
schedule and that the number and nature of such •neutral sHe• games are substantially similar to the ·customary
number and quality of games from past years.
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b. CSTV shall have the exclusive online/broadband rights to all A10 sports, including men's/women's baske~ball
{except for the ESPN games) and all sports set forth on Exhibit B (the "Olympic Sports").
c. CSTV shall have the right to exhibit an unlimited number of men's and women's basketball games (with the
exception of games referenced in Section 2(a)(i)) and Olympic Sports events ("Events") on the Service or
through CS1Vs syndicated programming division hereinafter "CSTV Re ionai) or otherwise in all media.
CSTV Will telecast a minimum of 1 women's basketball games per year tota rough a combination of
exhibition on the Service and/or CSTV Regional and not less than six hours annually of Olympic Sports. In
addition, CSTV sha!! have the exclusive right to sublicSJ'1Se atiy of the Events to any third party iocai, regional
and national broadcasters (for example, ABC, CBS and NBC, ESPN, Fox Sports, Comcast, local affiliates,
other regional networks, etc.), subject to Section 5 below. Any Events sublicensed by CSTV s~l! also be
available for distribution by CSTV on any CSTV distribution platform including CSTV Regional, any CSTV
regional or local programming service, the A10 website, C~TV.com and/or the member websites if the member
is a partner of CSTVO.

o

d. CSTV shall permit use of limited excerpts from the men's intercollegiate basketball games distributed by it by
each third party that distributes A10 men's intercollegiate basketball games for news programs, highlight shows
or A10 programming; provided that A10 negotiates a reciprocal right for CSTV with such third party for A10
men's intercollegiate basketball games distributed by such third party. A10 shall use all necessary
commercially reasonable efforts to obtain permission for CSTV to use limited excerpts from the A10 men's
intercollegiate basketball games distributed by ESPN or its affiliates for CSlVs news programs, highlight
shows or A10 programming.
·
e. CSTV shall have non-exclusive rights to basketball highlights programs, coaches shows, magazine shows
and studio shows produced by member institutions locally as well as a non-exclusive license to the A10's and
all member institufions' archival libraries of basketball, football and all Olympic Sports programming that the
member institutions or the A10 has a right to license for further telecast. A10, or its member institutions, shall
own all underlying copyrights and related rights in and to such programs, subject to the licenses of rights
therein granted to CSTV pursuant to this Agreement.
f. All A10 programs produced by CSTV, or licensed by CSTV to a third party to produce, pursuant to the rights
granted to CSTV hereunder, shall be deemed to be the "Programs." As between CSTV and A10, CSTV shall
own all right, title and interest, including but not fimited to ali copyrights, in and to the Programs and other
materials CFeated and produced hereunder.
· g. Any men's basketball games syndicated by A10 during the 2005-06 season shall be made available to
CSTV for use, within CSTV's discretion, as a subscription product within CSTV's All Access offering to stream
five on the A10 webstte in association with CSTV.com as an affiliate partner during the 2005-06 season,
provided however, CSTV shall ensure that such programming shall not be accessible .by any viewers online
outside of the A10 foolprint. Upon five business days notice by A10 to CSTV, CSTV shall cease including such
games within its All-Access package during the balance of the 2005-2006 season. Further, !he termination
right in the immediately preceding sentence shall be the sole remedy for a breach of this Section 2(g) by CSTV.
h. CSTV hereby consents to access to the events licensed hereunder (the "Ucensed Events"} by crews for
local television stations for purposes of filming or taping material for news stories provided that (i) at all times
CSTV has absolute, first priority to camera and announcing positions, participants, and all other services and
facilities required for its television production, Oi) such local news crews do not in any way interfere with CSTV's

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production, and QU) the organizations sending such crews use such material for news purposes only from the
Ucensed Events and limit such usage to no more than 30 seconds of the action or competition of the Ucensed
Events, and shall not be provided to any regional or national network or newsfeed service or distributed via the
Internal A10 and member institutions may also produce game fiims foi internal coaching purposes, promotion,
recruiting, and other uses, provided that all such uses are limited to non-income producing activities.
i. No promotional materials shall include endorsements of any type, whether direct or implied without the prior
written approval of the A10, which may be withbeld for any reason. CSTV shall promote the Programs,
member institutions and the A10 in and to the media, in a reasonable manner and in accordance v.ith its r.orma!
practice with respect to other events, games and programs ofsimilar stature.

3. WEBSITEIONUNE AND OTHER MEDIA RIGHTS
In addition to the exclusive audiolvideo streaming rights set forth in Section 2(b) for CSTV.com and the A10
website, CS1VO wiR become the ofiicial online partner of the A10 website for the remainder of the Tenn.
A10 shall also cause any member inStitution not currently us~ CSTVO as its online partner for its athletic
website to utilize those services of CSTVO for the remainder of the Tenn when its respective existing
online/website agreements (including any rights of first negotiations/first refusaQ expire, which member
instibJtions (the •Non-Web Membersj are listed on Exhibit C, as such may be amended to incorporate
institutions which hereafter join the A10 and are notthen using CSTVO as their online partner. A10 shall
cause its member institutions to agree that the currently existing agreements of all A10 members which are
using CSTVO as Its online partner (listed on Exhibit C) to be extended_ to be cotenninous with the Tenn on
the terms and conditions listed on Exhibit D(so long as CSTv'O is not in breach ihereoij, piuvidad,
however, all such annual production fee amounts shall remain consistent with those in effect during the
2005-06 year and throughout the remainder of the Term and shall also include the rights not curreiltiy held
by CSTVO (e.g., audio rights currently with Yahoo, etc). For Non-Web Members, upon expiration of preexisting online partner agreements, the Non-Web Members shall negotiate separate agreements in good
faith with CSTVO pursuant to wh~ CSTVO is subject to its customary obBgations and the Non-Web
Members provide CSTVO with the &mary rights and benefitS suCh as ad sales, online store, '
subscription audio and video, search, toolbar, auctions, wireless and other CSTV Online offerings;
provided. however, the level of services and costs shall be comparable to that provided by CSTVO to other
• unwerslties in the A10 to which CSTVO already provides services and eacn Non-Web Miriiber shan
__::.:=.;.;::...::;...:a=:-=~ n
o not more an
per year r the ba ance
erm {provided that no
such production fee shaD be payable by A10
for A website). The revenues ares payable by
CS1VO to such .Non-Web Members in connection with such activities are set forth on Exhibit Dattached
hereto and made apart hereof. To the extent that any Non-Web Member does not enter into an exclusr,;e
agreeritent with CSTVO as its onrme partner as provided above or if a member institution that utilizes
CSTVO as its online partner ceases to use CSTVO as its online partner as a result of fhe entire member
institution consolidating Its iristitution's various websites with another online provider, such that the athletic
department website does not control the choice of website provider for its website, the sole remedy
available to CSlV under this Agreement shall be a reduction in the consideration payable pursuant to
Section 11 of $20,000 per Season per non-compliant member institution while such non-compDance
continues. To the extent that any member institution which uses CSTVO as its onUne partner terminates or
fails to renew .its CST\lO-cmline-semces agreement for any..other:.RJason at. any time during the Term, such
termination or failure to renew shall be deemed amaterial breach of this Agreement Furlhermore, the A10
shaD, and shall use commeroially reasonable efforts to cause its members tO, feature prominent promotion
and marketing on their athletic websites of all of materials created, produced and disbibuted by CSTV and
CSTVO in all media owned and/or controlled by the variOus members and shall approve all reasonable

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national advertising campaigns proposed by CSTVO {which shall exclude, in any case, any advertising
prohibited by NCAA Guidelines, including but not limited to tobacco products, gambling, firearms, hard
alcohol and sexually explicit materials).
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4. MARKETING/SPONSORSHIP/RADIO RIGHTS FOR CSTV PROPERTIES:

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5. TELECAST GUARANTEES AND OBLIGATlONS:
During each year of the agreement, CST/ agrees to telecast a minimum of 10 men's basketball
games per year (with no maximum) on the Service and will distribute and/or exhibit, through CSTv Regional, a
minimum of 32 men's basketball games per year with no more man six such games to be non-conference
men's basketball game per year (with no maximum on the total number of games). Furthermore, CSTV shall
have the right to fulfill such 32 game minimum totals by telecasting games on the Service so long as CSTV is
available live in the markets ofthe~ath~Jf~ or by licensing the games through CSTv Regional
within such rnarl<ets. Furthermore, CSTv Regional shall make available a total of four &~J!tlli§~~JR,
the participating members of each game for institutional promotion use plus a total of
~ID~ r*W~i!lJot.~~~~..., CSTV shall guarantee each A10 member in~ution a mini mtotal of at least
two appearances per year through a combination of the Service and/or CSTV Regional.
6~

SELECTiON PROCESS- TI1e game sa1ection

shaH be as fotio\vs:

a. ESPN shall have the right to the first selection of up to eight games per year, provided such games
are selected no later than July 1 prior to each season.
b. CSTV shall have the right to select its eight CSTV national games telecasts, provided such games
do not conflict with any A10 time windows on the eight ESPN games and such games are selected
vlfthin 7 days of ESPN's final selections.

c. After CSTV has selected its games, ESPN U shan have the right to select up to six games within
the next frve business days, provided such games do not conflict 'J\~m any_ A10 time windows of the
eight CSTV games and such games are seiected no later than August 1 prior to each season.
d. CSTv' and CSTV Regional shall thereafter select i!s 34 games per year {or more, within CSTV's
discretion}, of which at least two shall be CSTV national game telecasts {as determined by CSTV}

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8. SCHEDULING:
CSTV shall not distribute any A10 men's intercollegiate basketball game at any time during which any ESPN game
selected pursuant to Section 6{a} or 6(c) is distributed by ESPN, provided that ESPN distributes su~ ESPN game
on the date and time originally identified by ESPN pursuant to Section 6(a) or 6(c), as applicable. 'A10 shall cause
ESPN, ESPN2 and ESPNU not to distribute any A10 men's intercollegiate basketball game at any time during ·
which any CSTV game selected pursuant to Section 6(b) is distributed by CSTV, provided that CSTV distributes
such CSTV game on the date and time originally identified by CSTV pursuant to Section 6(b). CSTV otherwise
shall not be subject to any scheduling restrictions {either for Ser:lce telecasts or telecasts through CSTV Regional),
except that it will not require any school to commence a game later than 9pm local time. CSTV will discuss
scheduling issues with the A10 conference office before approaching Individual-teams. During the term of the
Distribution Arrangement, the A10 agrees to maintain a reasonable number of non-conference men's basketball
games with Conference USA, the Mountain West Conference, Big East, ACC, SEC, Big Ten, Big 12 and Pac 10
(but in any event, no less than 20 totaJ, either home or away, non-conference events per contract year, and an
average of 25 such events per year over the term of the Distribution Arrangement), provided that ~~n request
CSTV assists A10 in obtaining agreement of the other conferenceS; to schedule such games.
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9. CONFERENCE RE-ALIGNMENT OR PROBATION:

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13.1NDEMNIFICATION: Each party agrees to indemnify and hold the other (and its affiliates, exhibitas,
assignees, licensees, and. their respective officers and employees) harmless against any &ablty, damage,
costs and expenses fmcluding reasonable attorneys• fees) occasioned by or arising out of any claim,
demand·or action lncoilsistent with any agreement. representation. grant or warranty made by the
indemnitor hereunder. the indemnitee agrees to give the Indemnitor prompt notice of any action to which
lhe foregoing Indemnity appfles, and the indemnitee may participate in the defense of same, at its expense,
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through counsel of its choosing; however, the final control and disposition of same (by settlement,
compromise, or otherwise) shall-remain with the indemnitor; provided, however, that no such claims shall
be settled by the indemnitor in a manner prejudicial to the indemnitee's rights hereunder witilout the
consent of the indemnitee, which shall not be unreasonably withheld. The indemnitor agrees to pay the
indemnitee on demand any amounts for which it may be responsible under the foregoing indemnity.
14. MISCELLANEOUS:

A.
Force Maieure: Notwithstanding anything herein contained to the contrary, neither party
shall be liab~ to the other in damages because of any failure to perform hereunder caused by any cause
beyond its control, including but not limited to fire, earthquake, flood, epidemic, accident explosion,
casualty, strike, lockout, labor controversy, riot, civil disturbance, act of a public enemy, embargo, war, act
of terrorism, act of God, any government ordinance or law, the issuance of any executive or judicial order,
any failure or delay of any transportation agency, any failure or delay with respect to ~ny electrical or sound
equipment or transmission equipment or apparatus. No Continuing Waiver: No waiver by either party of
any breach hereof shall be deemed a waiver of any preceding, continuing or succeeding breach of the
same or any other tenn hereof.Construction: This Agreement shall be deemed made and is to be
construed and interpreted under the laws of the State of New York applicable to contracts el)tered into and
totally perfonned therein, and the parties agree that any legal action brought with respect to this Agreement
:· must be brought in the State or Federal courts in New York City. The parties hereby submit to the
jurisdiction of such courts.Notices: All notices, statements, payments anq other communicaUons giyen
hereunder shall be made in writing, by personal delivery, or by mailing the same by postage prepaid by
registered or certified mail return receipt requested, or by FedEx .or .similar overnight delivery service, or by
facsimile transmission, to the other party, at the following address (unless either party at any time or times
designates another address for itself by notifying the other thereof, by certified mail, in which case all
notices to such party thereafter shall be given at its most recently so designated address):A10
230
South Broad Street SUite 1700
Philadelphia, PA 19102
ATTN: Unda Bruno, Commissioner
Phone: [phone]

Fax: {215)545-3342
CSTV:

CSTV NETVVORKS, INC.

85 10TH Avenue
NewYo.1t, NY 10011
ATTN: Chris Bevilacqua,
Executive Vice President-and Co-Founder
Cc: General Counsel
Phone: [phone], ext. 235

Fax:

212-972-9876

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Notices or reports given by personal delivery shall be deemed given on delivery. Notices or reports
given by maH shall be deemed given on the earlier to occur of actual receipt thereof or on the fifth day
following mailing thereof in accordance with the notice requirements of this Section. Notices or reports
given by overnight delivery service (e.g., Federal Express) shalf be deemed given on the next business day
foRewing delivery of the notice or report to such service with Instructions for overnight delivery. Notices or

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reports given by facsimile transmission shall be deemed given on the day of transmission if a business day,
or on the next business day after the day of transmission if not transmitted on a business day.

E.
Entire Agreement This Agreemant (including the annexed Exhibits which are hereby
incorporated by reference and made a part hereoij supersede and cancel all prior negotiations, writings
and understandings between the parties, including the Sports Program Agreement previously executed,
and contain all of the terms of the agreement between parties in connection with the subject matter
contemplated herein. No modification, including the definitive agreement, shall be valid unless in writing
and executed by both parties. Confidentiality: Except as provided in Section 10, CSiV and A agree to
10
keep confidential the tenns of this Agreement and not to reveal such terms to any third party that is not
owned or controlled by. or under common ownership and control with, the respective party making such
disclosure {with the exception that (i) disclosure of the tenns hereof to any legal and financial advisors of
the disclosing party shall not be a breach, provided that such advisors are expressly made aware of and
agree to be bound by, this confidentiality agreement; and 00 each party shall be entitled to make
disclosures to the extent required by law or appropriate court order, subject to such party's making
reasonable efforts to prevent the pubfic disclosure thereof; and {iii) each party shall be entiUed to make
such disclosures as may be reasonably necessary to enforce its rights hereunder). NCAA Rules: All of the
rights granted herein shall be subject to NCAA rules. No inadvertent failure to comply with NCAA rules
shall be deemed a breach of this Agreement; and CSTV agrees to use reasonable efforts to cure such
breach prospectively.Annual Meetings: Upon A1O's request, CSTV agrees to meet with A10 one time
··annually at a mutually agreed upon date and time to discuss any issues which may arise from this
Agreement or CSWs exercise of the rights granted hereunder.No joint Venture: Nothing contained hereh1
shall be deemed to create a relationship of joint venture, principal and agency relationship or partnership
between the parties hereto, and neither party shall hold itself out to the contrary. Each party is acting as
principal hereunder.Severablrttv: The invalidity under applicable law of any provision of this Agreement
shall not affect the validity of any other provision of this Agreement and in the event that any provision.
'hereof is detennined to be invalid or otherwise illegal, this Agreement shall remain effective and shall be
construed in accordance with its terms as if the invarld or illegal provision were not contained herein;
provided, however that both parties shall negotiate in good faith with respect to an equitable modification of
the provision, or appHcation thereof, held to be invalid and provisions logically related thereto.Assiqnment
This Agreement shall be binding upon, and shall inure to the benefit of the parties and their successors,
transferees and assigns, as permitted herein. Neither party shaD transfer or assign this Agreemen~ or all or
any part of its rights hereunder, to any other person, firm, corporation or entity without the prior written
consent of the other party hereto; provided that no such consent shall be necessary for CS1Vs assignment
of aU or any portion of its rights to any corporate successor thereto, or to any party owned or coniroiied by,
or which owns or controls, or which is under common ownership or control with, CSTV. A10 Intellectual
Property A10 (and its member institutions) shall at all times be the sole and exclusive owner of all names,
logos, trade names, trademarks and service marks owned by the A10 and member institutions, which may
not be used by CSTV in any manner (other than as authorized in this Agreement) without A1O's prior
written consent.

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The parties hereto intend to enter into a more formal agreement consistent with the foregoing and including such
other terms and conditions as are customary for license agreements of this scope, nature and within the collage
sports programming sector.

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