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

Filing 256

NOTICE of Motion and Motion to Admit Exhibits by Edward C. O'Bannon, Jr. (Attachments: #1 Proposed Order, #2 Exhibit A, #3 Exhibit B, #4 Exhibit C, #5 Exhibit D, #6 Exhibit E, #7 Exhibit F)(Bojedla, Swathi) (Filed on 6/29/2014) Modified on 6/30/2014 (cpS, COURT STAFF). Modified on 6/30/2014 (cpS, COURT STAFF).

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MICHAEL D. HAUSFELD (pro hac vice)
[e-mail]
HILARY K. SCHERRER (SBN 209451)
[e-mail]
SATHYA S. GOSSELIN (SBN 269171)
[e-mail]
SWATHI BOJEDLA (pro hac vice)
[e-mail]
HAUSFELD LLP
1700 K Street, NW, Suite 650
Washington, D.C. 20006
Telephone:
[phone]
Facsimile:
[phone]

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MICHAEL P. LEHMANN (SBN 77152)
[e-mail]
BRUCE J. WECKER (SBN 78530)
[e-mail]
HAUSFELD LLP
44 Montgomery Street, Suite 3400
San Francisco, California 94104
Telephone:
[phone]
Facsimile:
[phone]

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Plaintiffs’ Counsel

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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EDWARD C. O’BANNON, JR. on behalf
of himself and all others similarly situated,
Plaintiffs,

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v.
NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION (NCAA); ELECTRONIC
ARTS, INC.; and COLLEGIATE
LICENSING COMPANY,

Case No. 4:09-cv-3329 CW
PLAINTIFFS’ NOTICE OF MOTION AND
MOTION TO ADMIT EXHIBITS
Judge:
The Honorable Claudia Wilken
Courtroom: 2, 4th Floor
Trial:
June 9, 2014

Defendants.

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PLAINTIFFS’ NOTICE OF MOTION AND
MOTION TO ADMIT EXHIBITS
4:09-CV 3329 CW

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PLEASE TAKE NOTICE that Plaintiffs hereby move to admit the following trial
exhibits:
PX 2628 (attached hereto as Exhibit A): PX 2628 is the University of Illinois student-

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athlete release. Dr. Stiroh relied on this document, bates stamped ILLINOIS000035, in her

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March 14, 2013 Class Certification Report as support for her statement that “student-athletes at

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the University of Illinois, for example, grant rights to the university and/or the Big Ten

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Conference to use their NILs in broadcasts and other media.” Stiroh Class Certification Report, ¶

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43 & n.53. PX 2628 is admissible as consistent with the Court’s ruling on the motion in limine

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permitting Plaintiffs to introduce student-athlete releases so long as there is some evidence of a

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nexus between the forms and the NCAA. Order Resolving Motions in Limine at 10, Dkt. No. 166

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(May 30, 2014). PX 2628 states that all uses of the athlete’s NILs “shall be consistent with all

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applicable NCAA . . . rules and regulations.” PX 2628, a legally binding release, is also

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admissible as non-hearsay. United States v. Karr, 928 F.2d 1138 (9th Cir. 1991) (“‘Facts of

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independent legal significance constituting a contract which is at issue are not hearsay.’”)

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(quoting United States v. Rubier, 651 F.2d 628, 630 (9th Cir. 1981), cert. denied, 454 U.S. 875

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(1981)). Finally, PX 2628 is admissible not for the truth but rather to show that Dr. Stiroh viewed

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and relied upon evidence which contradicts her testimony that student-athlete releases apply only

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to promotional uses of their NILs. See Tr. 2907:14-20.

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PX 2623 (attached hereto as Exhibit B): PX 2623 is a summary exhibit of voluminous

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data and is admissible under FRE 1006. It is entitled “Distribution of In-Season and

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Rebroadcasted Football and Basketball Games” and represents a true and accurate summary of

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voluminous Who’s Watching TV (“WWTV”) and Nielsen television data from the 2005-06 to

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2012-13 seasons regarding the number of NCAA Division I men’s basketball and FBS football

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games telecasted on television. These data are business records of their respective organizations.

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Pursuant to the parties’ stipulation, Plaintiffs disclosed this summary exhibit “no less than 48

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hours before to its anticipated use at trial.” Stipulation Regarding Exchange of Pretrial Materials,

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Case No. 4:09-cv-1967-CW (Dkt. No. 1038) at 3. As required by the stipulation and by FRE

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1006, Plaintiffs also made available to the NCAA the data underlying PX 2623.
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PLAINTIFFS’ NOTICE OF MOTION AND
MOTION TO ADMIT EXHIBITS
4:09-CV 3329 CW

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On June 27, 2014, after the last witness finished his trial testimony, counsel for the NCAA

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represented to the Court that the NCAA would not require Plaintiffs to call the lay witness who

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prepared this exhibit. By agreeing that Plaintiffs did not have to call the witness, the NCAA

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waived its opportunity cross examine the witness regarding the accuracy of the chart. Thus, the

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NCAA has no basis to contest the accuracy of this exhibit.

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The NCAA’s main objection to PX 2623 appears to be that it is “expert” evidence, but it

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is in fact, not. Rather, it is merely a summary of data regarding the number of broadcasts and

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rebroadcasts of NCAA FBS football and Division I basketball games. No expert opinion based

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on the summary of the data is offered in conjunction with the exhibit, and no expert opinion or

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testimony is required under the Rule. See United States v. Pree, 408 F.3d 855, 869 (7th Cir.

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2005) (“When a summary witness simply testifies as to what the . . . evidence shows, he does not

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testify as an expert witness.”); Klaczak v. Consol. Med. Transp., 458 F. Supp. 2d 622, 666 (N.D.

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Ill. 2006) (“Expert testimony is not necessary to summarize voluminous documents or records—

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Rule 1006 provides such a mechanism without the use of expert testimony.”).

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PX 2623 shows that, of all Division I men’s basketball and FBS football games telecasted

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during from July 1, 2005 to June 30, 2013, 80.6% of them were in-season live or rebroadcast

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games, 10.7% of them were games originally telecasted live during each game’s respective

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season between 2005-06 and 2012-13 and were also rebroadcast in a subsequent season, and

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8.7% of them constitute games originally telecasted prior to the 2005-06 season but were

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rebroadcasted between 2005-06 and 2012-13. The rebroadcasts that PX 2623 depicts demonstrate

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that the games held in the NCAA archives have a significant future value. See PX 298 (NCAA

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executive stating in an email that “archive rights are 10% of our TV rights (the $6 Billion deal) . .

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. .”).

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That the information summarized in PX 2623 is “gigabytes” of data, as counsel for the

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NCAA argued, is beside the point. See Intel Corp. v. Am. Guar. & Liab. Ins. Co., 5:09-CV-

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00299-JR/PVT, 2010 WL 5176088, at *2 n.5 (N.D. Cal. Dec. 7, 2010) (admitting summary of

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17,000 pages of attorney invoices). The fact of large volume of the data is precisely the issue that

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PLAINTIFFS’ NOTICE OF MOTION AND
MOTION TO ADMIT EXHIBITS
4:09-CV 3329 CW

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Rule 1006 addresses. See Fed. R. Evid. 1006 (permitting a party to introduce summary evidence

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to “prove the content of voluminous writings”).

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PX 2021 (attached hereto as Exhibit C): PX 2021 is a February-March 2007 email chain

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among NCAA executives, including Greg Weitekamp, David Knopp, and Peter Davis, with co-

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defendant Electronic Arts’ executives Joel Linzner and Jordan Edelstein, among others. PX 2021

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is admissible in its entirety as statements of party-opponents under FRE 801(d)(2)(C) and/or (D).

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EA remains a co-defendant in this case. Furthermore, PX 2021 is admissible as statements of co-

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conspirators in furtherance of the conspiracy. See Pls.’ June 8, 2014 Bench Mem. (Case No.

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4:09-cv-3329, Dkt. No. 197) at 8-9.

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PX 2645 (attached hereto as Exhibit D): PX 2645 is the first page of the National

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Association of Intercollegiate Athletics’ (“NAIA”) IRS Form 990 for 2011-12. PX 2645 is

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admissible as a business record under FRE 803(6).

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PX 2661 (attached hereto as Exhibit E): PX 2661 is an excerpt from Dr. Rubinfeld’s

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September 25, 2013 merits expert report. PX 2661 is admissible as Dr. Rubinfeld’s expert

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testimony and directly supplements Dr. Rubinfeld’s testimony on June 27, 2014 regarding the

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NCAA’s and Knight Commission’s views and/or recommendations regarding commercialism in

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college athletics. See June 27, 2014 Trial Tr. 3106:1-3110:24.

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PX 2662 (attached hereto as Exhibit F): PX 2662 is a compilation of the graduation rates

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of Conference USA member institutions. During the cross-examination of Britton Banowsky, the

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Conference USA commissioner, counsel for Plaintiffs represented that he would try to reach

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agreement with the NCAA on admission of this graduation data. June 23, 2014 Trial Tr.

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2382:13-29. The parties were unable to reach a stipulation. The graduation rate reports are

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publicly available data, filed by the NCAA on its own website. This data is highly relevant to the

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NCAA’s procompetitive justification regarding the success of the restraint in promoting

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integration. In fact, many other graduation rate reports from other NCAA member instutitions

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have already been admitted, without NCAA objection.

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For the foregoing reasons, Plaintiffs respectfully request that the Court admit the
preceding exhibits into evidence.
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PLAINTIFFS’ NOTICE OF MOTION AND
MOTION TO ADMIT EXHIBITS
4:09-CV 3329 CW

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Dated: June 29, 2014

Respectfully submitted,
By: /s/ Swathi Bojedla
Michael D. Hausfeld (pro hac vice)
Hilary K. Scherrer (Cal. Bar No. 209451)
Sathya S. Gosselin (Cal. Bar. No. 269171)
Swathi Bojedla (pro hac vice)
HAUSFELD LLP
1700 K Street, NW, Suite 650
Washington, DC 20006
Telephone: [phone]
Facsimile: [phone]
E-mail:
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Michael P. Lehmann (Cal. Bar No. 77152)
Arthur N. Bailey, Jr. (Cal. Bar No. 248460)
HAUSFELD LLP
44 Montgomery Street, 34th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
E-mail:
[e-mail]
[e-mail]
Plaintiffs’ Class Counsel

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PLAINTIFFS’ NOTICE OF MOTION AND
MOTION TO ADMIT EXHIBITS
4:09-CV 3329 CW

CERTIFICATE OF SERVICE

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I hereby certify that on June 29, 2014, I electronically filed the foregoing document with the

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Clerk of the Court using the CM/ECF system, which will send notification to the e-mail addresses

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registered.

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/s/ Swathi Bojedla
Swathi Bojedla
HAUSFELD LLP
1700 K Street, NW, Suite 650
Washington, DC 20006

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CERTIFICATE OF SERVICE
4:09-CV 3329 CW