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

Filing 278

ORDER by Judge Claudia Wilken RESOLVING ( #255 , #256 ) MOTIONS TO ADMIT EXHIBITS (ndr, COURT STAFF) (Filed on 7/8/2014)

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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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ORDER RESOLVING
MOTIONS TO ADMIT
EXHIBITS (Docket
Nos. 255, 256)

v.

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No. C 09-3329 CW

NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION; ELECTRONIC ARTS
INC.; and COLLEGIATE LICENSING
COMPANY,
Defendants.
________________________________/

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On June 27, 2014, Defendant National Collegiate Athletic

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Association moved to admit ten trial exhibits.

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objected to the admission of these exhibits and, on June 29, 2014,

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moved to admit six of their own trial exhibits.

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to the admission of five of Plaintiffs’ exhibits.

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considering the parties’ submissions, the Court resolves the

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motions to admit the exhibits as set forth below.

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I.

Plaintiffs

The NCAA objected
After

NCAA’s Exhibits

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A.

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GRANTED in part.

TX 3741
This exhibit contains excerpts from

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Plaintiff Oscar Robertson’s autobiography.

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this exhibit, which pertain to Robertson’s experience as a recruit

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and student-athlete, may be admitted: 1, 6, 75, 81, 83-84, and

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182.

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B.

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GRANTED in part.

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The following pages of

TX 3742
This exhibit contains excerpts from

Plaintiff David Lattin’s autobiography.

The following pages of

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this exhibit, which pertain to Lattin’s experience as a student-

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athlete, may be admitted: 1, 4, 73, 76, and 229.

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C.

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GRANTED.

TX 2102
This exhibit contains a 1994 broadcasting rights

agreement between the Southeastern Conference (SEC) and ESPN.

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Plaintiffs’ primary objection to this exhibit is that the NCAA

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moved to admit it too late for them to question Greg Sankey, an

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SEC executive, about its content during trial.

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agreement is a legal document that speaks for itself, however, it

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United States District Court
For the Northern District of California

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is unlikely that Sankey could have offered any relevant testimony

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regarding its content.

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been drafted several years before Sankey joined the SEC.

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these reasons, Plaintiffs’ inability to question Sankey about the

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agreement does not justify its exclusion.

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D.

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GRANTED.

Because the

Furthermore, the agreement appears to have
For

TX 2110
This exhibit contains a 1999 broadcasting rights

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agreement between the SEC and ESPN, Inc.

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admission of the document on the grounds that it does not

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represent the complete agreement between the SEC and ESPN.

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first page of the document, however, expressly states that it is a

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“legally-binding contract” and that it will “constitute [the

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parties’] agreement” until they enter into a long-form contract.

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Plaintiffs’ objection to this exhibit is therefore overruled.

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Plaintiffs may submit evidence, if they have any, to show that the

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SEC and ESPN subsequently entered into a long-form agreement with

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materially different terms than the agreement contained in this

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exhibit.

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Plaintiffs object to the

The

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E.

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GRANTED.

TX 2117
This exhibit contains a 2000 broadcasting rights

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agreement between the Big 12 Conference, ABC Sports, Inc., ESPN

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Regional Sports, Inc. (ERT), and ESPN.

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Plaintiffs object to this agreement on the grounds that it does

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not represent the complete agreement between the Big 12, ERT, and

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ESPN.

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clear that the agreement is a legally binding contract;

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accordingly, Plaintiffs’ objection is overruled.

As with Exhibit TX 2110,

Once again, however, the terms of the agreement itself make

Plaintiffs may

United States District Court
For the Northern District of California

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submit evidence, if they have any, to show that the Big 12, ERT,

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and ESPN subsequently entered into a long-form agreement with

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materially different terms than the agreement contained in this

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exhibit.

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F.

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DENIED.

TX 2119
This exhibit contains a heavily redacted copy of a

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2000 broadcasting rights agreement between the Atlantic Coast

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Conference, Raycom Sports, Inc., and Jefferson-Pilot Sports, Inc.

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Plaintiffs represent that they have not been given access to the

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original, unredacted version of this agreement.

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Plaintiffs have not had an opportunity to view the redacted

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portions of the agreement, this exhibit may not be admitted to

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show that this agreement lacks provisions pertaining to the name,

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image, and likeness rights of student-athletes.

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G.

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GRANTED.

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Thus, because

TX 2141
Plaintiffs have not identified any specific

objections to this exhibit.

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H.

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GRANTED.

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TX 2147
Plaintiffs have not identified any specific

objections to this exhibit.

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I.

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GRANTED.

TX 2179
This exhibit contains two broadcasting rights

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agreements between the University of Notre Dame and NBC Sports,

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Inc.

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these agreements on the grounds that they are incomplete.

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both agreements are legally binding, however, Plaintiffs’

As with Exhibits TX 2110 and TX 2117, Plaintiffs object to
Because

United States District Court
For the Northern District of California

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objection is overruled.

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have any, to show that Notre Dame and NBC subsequently entered

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into long-form agreements with materially different terms than the

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agreements contained in this exhibit.

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J.

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DENIED.

Plaintiffs may submit evidence, if they

TX 3086
This exhibit contains a heavily redacted copy of a

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2007 broadcasting rights agreement between several conferences,

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universities, bowl committees, and Fox Sports Productions, Inc.

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Plaintiffs represent that they lack access to the redacted

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portions of this exhibit.

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this exhibit may not be admitted to show that this agreement lacks

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provisions pertaining to the name, image, and likeness rights of

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student-athletes.

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II.

Accordingly, as with Exhibit TX 2119,

Plaintiffs’ Exhibits

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A.

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GRANTED.

PX 2628
This exhibit contains a University of Illinois

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student-athlete release form.

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sufficient evidence to establish a nexus between this document and

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the NCAA, as required by this Court’s May 30, 2014 order on the

Plaintiffs have not presented

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motions in limine.

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the limited purpose of rebutting Dr. Stiroh’s testimony.

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B.

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GRANTED.

Nevertheless, the exhibit may be admitted for

PX 2623
This exhibit contains a chart that purports to show

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the distribution of live and rebroadcasted football and basketball

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games shown on television between 2005 and 2013.

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to the admission of this chart on the grounds that the underlying

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data on which it is based is inadmissible.

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overruled.

The NCAA objects

This objection is

The NCAA was offered the opportunity to cross-examine

United States District Court
For the Northern District of California

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Plaintiffs’ expert about this exhibit at trial but chose not to do

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so.

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declined the opportunity to challenge the accuracy of the

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underlying data by presenting its own contrary evidence after

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trial.

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summary exhibit pursuant to Federal Rule of Evidence 1006.

Docket No. 272, Trial Tr. 3249:9-3250:20.

See id.

The NCAA also

Accordingly, the chart may be admitted as a

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C.

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GRANTED in part.

PX 2021
This exhibit contains an e-mail exchange

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between various Electronic Arts Inc. (EA) employees and NCAA

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representatives.

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admissible as statements of a party opponent because they are

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being introduced against the NCAA -- not EA -- and Plaintiffs have

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not shown that they were made in furtherance of the alleged

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conspiracy between EA and the NCAA.

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representatives, in contrast, may be admitted as statements of a

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party opponent.

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D.

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GRANTED.

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The e-mails sent by EA employees are not

The e-mails sent by NCAA

Fed. R. Evid. 801(d)(2).

PX 2645
The NCAA does not object to the admission of this

exhibit.
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E.

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GRANTED in part.

PX 2661
This exhibit contains an excerpt from Dr.

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Rubinfeld’s September 2013 expert report.

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report is admissible; however, the portions of Dr. Rubinfeld’s

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report that merely quote from the 2001 Knight Commission report

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constitute hearsay within hearsay and may not be admitted for the

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truth of the matter asserted therein.

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prior orders, statements of third-party groups such as the Knight

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Commission may be considered to show how the parties’ expert

This excerpt of the

Consistent with the Court’s

United States District Court
For the Northern District of California

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witnesses formed their opinions but, barring some other exception

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to the hearsay rule, may not be admitted for their truth.

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F.

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DENIED.

PX 2662
This exhibit contains over forty pages of raw data

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concerning graduation rates at various Conference USA schools.

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The introduction of such a large volume of raw data without

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accompanying witness testimony does not serve a useful purpose.

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Accordingly, this exhibit may not be admitted.

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CONCLUSION

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Plaintiffs and the NCAA’s motions to admit exhibits (Docket

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Nos. 255, 256) are resolved as set forth above.

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of this order, the parties shall submit a final joint exhibit

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list.

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containing electronic versions of every exhibit admitted during or

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after trial, with appropriate redactions.

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the contents of this flash drive against the physical exhibits in

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//

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//

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//

Within three days

In addition, the parties shall submit a flash drive

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The parties shall check

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the custody of the Clerk to ensure that the admitted exhibits --

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or portions of exhibits -- are included in both.

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IT IS SO ORDERED.

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Dated: 7/8/2014

CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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