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

Filing 264

ORDER by Judge Claudia Wilken RESOLVING PLAINTIFFS' #240 MOTION TO ADMIT EXHIBITS. (ndr, COURT STAFF) (Filed on 6/30/2014) Modified on 7/1/2014 (cpS, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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EDWARD O’BANNON, et al.
Plaintiffs,

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United States District Court
For the Northern District of California

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v.

No. C 09-3329 CW
ORDER RESOLVING
PLAINTIFFS’ MOTION
TO ADMIT EXHIBITS
(Docket No. 240)

NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION; ELECTRONIC ARTS
INC.; and COLLEGIATE LICENSING
COMPANY,
Defendants.
________________________________/
On June 23, 2014, Plaintiffs moved to admit fifteen trial

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exhibits.

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(NCAA) objected to the admission of eleven of these exhibits.

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After considering the parties’ submissions, the Court resolves

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Plaintiffs’ motion to admit the exhibits as set forth below.

Defendant National Collegiate Athletic Association

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A.

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GRANTED.

PX 2564
Dr. Rascher’s amended chart may be admitted as a

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summary exhibit under Federal Rule of Evidence 1006.

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original objection to this exhibit is now moot in light of the

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fact that Plaintiffs have removed all references to universities

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that were not discussed in Dr. Rascher’s expert reports.

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B.

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DENIED.

The NCAA’s

PX 2282
Plaintiffs move to admit the entire 2001 Knight

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Commission report as an admission of a party opponent because the

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report was signed by then-NCAA president Cedric Dempsey.

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that Dempsey was one of the twenty-seven signatories to this

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report, however, does not suffice to convert every statement in

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the report into an admission of the NCAA.

The fact

Plaintiffs have also

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failed to excerpt the relevant portions of the report.

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reasons and those stated in the May 30, 2014 order resolving the

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motions in limine, this exhibit may not be admitted in its

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entirety.

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C.

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GRANTED.

For these

PX 2046
This exhibit contains two e-mails sent from

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university administrators to NCAA officials and other university

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administrators in 2008.

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limited purpose of showing their effect on any NCAA officials who

These e-mails may be admitted for the

United States District Court
For the Northern District of California

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received them.

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Cir. 1991).

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statements of a party opponent because the senders are not agents

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or employees of the NCAA, even if they serve on NCAA committees.

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See United States v. Bonds, 608 F.3d 495, 504 (9th Cir. 2010)

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(recognizing that “statements are admissible under Rule

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801(d)(2)(D)” if they were made by the party opponent’s “employee

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or agent”).

United States v. Payne, 944 F.2d 1458, 1472 (9th

The e-mails may not, however, be admitted as

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D.

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GRANTED.

PX 280
This exhibit contains an e-mail exchange between

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two NCAA employees regarding statements made by certain university

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presidents.

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exhibit may be admitted for the limited purpose of showing the

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effect of those statements on any of the NCAA officials who

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received them.

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university presidents recounted in the e-mails may not be admitted

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for their truth as admissions of party opponents nor as statements

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of co-conspirators made in furtherance of the alleged conspiracy.

As with PX 2046, the e-mails contained in this

Payne, 944 F.2d at 1472.

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The statements of

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E.

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GRANTED.

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PX 2598

exhibit.

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F.

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GRANTED.

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PX 2603

G.

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GRANTED.

PX 2604
The NCAA does not object to the admission of this

exhibit.

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United States District Court
For the Northern District of California

The NCAA does not object to the admission of this

exhibit.

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The NCAA does not object to the admission of this

H.

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DENIED.

PX 2014
This exhibit contains an e-mail exchange between

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various Collegiate Licensing Company (CLC) employees.

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e-mails were sent by or to any NCAA agents or employees.

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even though CLC remains an adverse party in this action, the e-

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mails are not admissible against the NCAA.

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I.

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GRANTED.

None of the
Thus,

PX 2487
This exhibit contains a 2002 report prepared by an

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NCAA consultant at the NCAA’s request.

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report itself may be admitted as non-hearsay but objects to the

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admission of certain statements made in the report by university

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presidents and administrators.

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presidents and administrators constitute hearsay within hearsay

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and, as such, may not be admitted for their truth.

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do not constitute admissions of party opponents because, as noted

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above, university presidents and administrators are not agents or

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employees of the NCAA.

The NCAA concedes that the

The statements of university

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The statements

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J.

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GRANTED.

PX 2095
This exhibit contains a proposal presented to the

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NCAA Division I Board of Directors in November 2013 by two

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university presidents.

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admission of a party opponent nor a statement of a co-conspirator

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made in furtherance of the alleged conspiracy.

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proposal may not be admitted for the truth of its content, it may

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be admitted for the limited purposes of showing its effect on the

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recipients and the intent, motives, or beliefs of the presenters.

United States District Court
For the Northern District of California

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The proposal does not constitute an

Although this

Fed. R. Evid. 803(3).

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K.

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GRANTED.

PX 2527
This exhibit contains a May 2014 letter that the

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presidents of the twelve universities in the Pac-12 Conference

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sent to the presidents of universities in the other four major

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conferences.

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may be admitted for the limited purposes of showing the existence

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of less restrictive alternatives and the senders’ intent, motives,

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or beliefs.

This letter may not be admitted for its truth but

Fed. R. Evid. 803(3).

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L.

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GRANTED.

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PX 2616
The NCAA does not object to the admission of this

exhibit.

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M.

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GRANTED.

PX 2287-1 & 2287-17
This exhibit contains an excerpt from a Knight

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Commission report and may be admitted for the limited purpose of

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showing that the NCAA refused to act upon certain reform

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proposals.

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is “cumulative” and duplicative of Mark Emmert’s testimony -- does

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not provide grounds for excluding the exhibit.

The NCAA’s only objection to this excerpt -- that it

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N.

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DENIED.

PX 2057-20
This exhibit contains a page from an unidentified

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PowerPoint presentation.

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presentation.

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may have been authored by an NCAA employee, they previously argued

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that it was authored by a conference commissioner.

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this ambiguity, the exhibit may not be admitted.

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O.

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GRANTED.

It is not clear who authored the

Although Plaintiffs suggest in their brief that it

In light of

PX 3081
This exhibit contains a document entitled,

United States District Court
For the Northern District of California

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“Discussion of the Application of the Recommendations of the NCAA

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Study Group on the Use of Student-Athletes’ Names and Likenesses.”

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This exhibit may be admitted for the limited purpose of showing

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its effect on any NCAA officials who participated in the study

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group’s discussion or were otherwise presented with the group’s

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findings.

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CONCLUSION
The NCAA’s objections to these exhibits are resolved as set
forth above.
IT IS SO ORDERED.

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Dated: June 30, 2014

CLAUDIA WILKEN
United States District Judge

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