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

Filing 258

Plaintiffs' Opposition to re #255 NCAA's Motion to Admit Exhibits by Edward C. O'Bannon, Jr (Bojedla, Swathi) (Filed on 6/30/2014) Modified on 7/1/2014 (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’ OPPOSITION TO NCAA’S
MOTION TO ADMIT EXHIBITS
Judge:
The Honorable Claudia Wilken
Courtroom: 2, 4th Floor
Trial:
June 9, 2014

Defendants.

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PLAINTIFFS’ OPPOSITION TO NCAA’S
MOTION TO ADMIT EXHIBITS
4:09-CV 3329 CW

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On June 27, 2014, the NCAA filed its Motion to Admit Exhibits. Dkt. No. 255. The

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NCAA has moved to admit two categories of documents. The first are a series of contracts for

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which they have laid no foundation, and many of which are incomplete or almost fully redacted.

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The second are excerpts from named Plaintiffs’ books. Plaintiffs respectfully request that the

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Court deny admission of these exhibits.

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I.

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Plaintiffs object generally to the NCAA attempting to dump contracts into the record

Contracts

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without giving Plaintiffs and the Court the opportunity to examine a witness on their contents.

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Furthermore, for many of these contracts, witnesses were present at trial who could potentially

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testify on these documents, and Plaintiffs were not notified until after the witnesses had left the

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stand that the NCAA intended to attempt to admit these contracts. For example, the NCAA seeks

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to admit TX 2102 and TX 2110, which are SEC contracts that Greg Sankey may have had

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knowledge of. TX 3086 is a contract involving the Big Ten, about which Jim Delany may have

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been able to testify. For the additional specific reasons below, these contracts should not be

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admitted.

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A.

TX 2110 – The NCAA represents that this exhibit is an agreement between ESPN

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and the SEC for broadcast rights to certain SEC athletic events. In fact, it is a letter confirming

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key points of a contract, and the sender states that “we intend to enter into a long-form document

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more definitively stating the various details of our agreement.” TX 2110-1. It is therefore

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incomplete and not probative for the points for which the NCAA intends to use it, which is to

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show a lack of name and likeness language.

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B.

TX 2117 – The NCAA represents this exhibit as an agreement between the Big

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Twelve and ESPN for broadcast rights to Big Twelve games. As with the previous exhibit, it is

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instead a letter memorializing key terms of an agreement, with a promise to execute a fuller

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“Long-Form Agreement” in the future. TX 2117-1. It is therefore incomplete and not probative

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for the points for which the NCAA intends to use it, which is to show a lack of name and likeness

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language.

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PLAINTIFFS’ OPPOSITION TO NCAA’S
MOTION TO ADMIT EXHIBITS
4:09-CV 3329 CW

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C.

TX 2119 – This is an agreement between the Atlantic Coast Conference and

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Raycom Sports, Inc., and Jefferson-Pilot Sports, Inc. for telecast rights to conference games. It is

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heavily redacted; only a handful of paragraphs are visible. Indeed, much of the “Grant of Rights”

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section is redacted from the contract. The “Indemnification” and “Additional Warranty”

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language is also redacted. Not only is its current form not probative of the NCAA’s arguments,

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but it would also be misleading and unfair under Fed. R. Evid. 1003 because Plaintiffs and the

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Court lack access to the original, unredacted language.

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D.

TX 2179 – Like TX 2110 and 2117 discussed above, this exhibit consists of short

letters confirming the material terms of a contract extension between Notre Dame and NBC for

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the broadcast of games. The initial extension letter contains four such material terms, and the

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subsequent extension letter contains eight terms. This is clearly not a complete contract

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containing all relevant provisions, and it is not probative of the NCAA’s arguments relating to

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name and likeness rights.

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E.

TX 3086 – This is an extremely redacted version of a contract between a number

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of conferences (including the Big Ten and Conference USA) and certain BCS bowls. Three

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paragraphs of the entire contract are not redacted—the introductory language, the definition of

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“BCS Games”, and a single sentence in Exhibit B that requires approval by the NCAA of any

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advertisement involving a student-athlete. As such, it is not probative of the NCAA’s arguments

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regarding name and likeness rights, and it is misleading and unfair under Fed. R. Evid. 1003

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because Plaintiffs and the Court lack access to the original, unredacted language.

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F.

TX 2141, TX 2147 - Plaintiffs have no specific objections to these contracts.

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II.

Named Plaintiffs’ Book Excerpts

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The NCAA’s proposed trial exhibits of excerpted portions of certain named Plaintiffs’

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books are irrelevant to the claims in this litigation. For example, TX 3741 contains several pages

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of Oscar Robertson’s personal account of his childhood; it is unclear why that is relevant to this

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litigation. TX 3742 similarly contains David Lattin’s opinions about his professional career that

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are not relevant to this litigation.

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PLAINTIFFS’ OPPOSITION TO NCAA’S
MOTION TO ADMIT EXHIBITS
4:09-CV 3329 CW

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For the foregoing reasons, Plaintiffs respectfully request that the Court deny the NCAA’s
Motion to Admit Exhibits.

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Dated: June 30, 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’ OPPOSITION TO NCAA’S
MOTION TO ADMIT EXHIBITS
4:09-CV 3329 CW

CERTIFICATE OF SERVICE

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I hereby certify that on June 30, 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