Bishop v. Electronic Arts, Inc., et al

Filing 44

Transcript of Proceedings held on 12/17/09, before Judge Claudia Wilken. Court Reporter/Transcriber Diane E. Skillman, Telephone number 510-451-2930, [e-mail]. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 3/22/2010. Redacted Transcript Deadline set for 4/1/2010. Release of Transcript Restriction set for 6/1/2010. (Skillman, Diane) (Filed on 3/1/2010)

PAGES 1 - 75 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE CLAUDIA WILKEN, JUDGE SAMUEL KELLER,
PLAINTIFF,

) )
) NO. C-09-1967 CW

) VS. ) ) ELECTRONIC ARTS, NCAA, ) COLLEGIATE LICENSING CO., ) ) DEFENDANTS. ) ____________________________) EDWARD C. O'BANNON, ) ) PLAINTIFF, ) VS. ) ) NCAA AND COLLEGIATE ) LICENSING COMPANY, ) ) DEFENDANTS. ) ____________________________) BRYON BISHOP, ) ) PLAINTIFF, ) VS. ) ) ELECTRONIC ARTS, NCAA AND ) COLLEGIATE LICENSING CO., ) ) DEFENDANTS. ) ____________________________)

THURSDAY, DECEMBER 17, 2009 OAKLAND, CALIFORNIA

C-09-3329 CW

C-09-4128 CW

CAPTION CONTINUED ON NEXT PAGE REPORTER'S TRANSCRIPT OF PROCEEDINGS REPORTED BY: DIANE E. SKILLMAN, CSR 4909, RPR, FCRR OFFICIAL COURT REPORTER

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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) ) PLAINTIFF, ) VS. ) ) NCAA AND COLLEGIATE ) LICENSING COMPANY, ) ) DEFENDANTS. ) ____________________________) MICHAEL ANDERSON, ) ) PLAINTIFF, ) VS. ) ) NCAA AND COLLEGIATE ) LICENSING COMPANY, ) ) DEFENDANTS. ) ____________________________) DANNY WIMPRINE, ) ) PLAINTIFF, ) VS. ) ) NCAA AND COLLEGIATE ) LICENSING COMPANY, ) ) DEFENDANTS. ) ____________________________) SAMUEL JACOBSON, ) ) PLAINTIFF, ) VS. ) ) NCAA AND COLLEGIATE ) LICENSING COMPANY, ) ) DEFENDANTS. ) ____________________________)

CRAIG NEWSOME,

C-09-4882 CW

C-09-5100 CW

C-09-5134 CW

C-09-5372 CW

CAPTION CONTINUED ON NEXT PAGE

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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) ) PLAINTIFF, ) VS. ) ) NCAA AND COLLEGIATE ) LICENSING COMPANY, ) ) DEFENDANTS. ) ____________________________)

DAMIEN RHODES,

C-09-5378 CW

APPEARANCES: FOR PLAINTIFF SAMUEL KELLER: BY: HAGENS BERMAN SOBOL SHAPIRO 11 WEST JEFFERSON STREET, STE. 1000 PHOENIX, ARIZONA 85003 ROBERT B. CAREY, ESQUIRE LEONARD W ARAGON, ESQUIRE THE PAYNTER LAW FIRM PLLC 1200 G STREET N.W., STE. 800 WASHINGTON, DC 20005 STUART MCKINLEY PAYNTER, ESQUIRE

BY: 14 15 16 17 18 19 BY: 20 21 22 23 24 25 FOR PLAINTIFF EDWARD O'BANNON: BY:

HAUSFELD LLP 1700 K STREET, NW, SUITE 650 WASHINGTON, DC 20006 MICHAEL D. HAUSFELD, ESQUIRE HAUSFELD LLP 44 MONTGOMERY STREET, STE. 3400 SAN FRANCISCO, CALIFORNIA 94104 MICHAEL LEHMANN, ESQUIRE JON T. KING, ESQUIRE

(APPEARANCES CONTINUED)

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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1 2 3 4 5 6 BY: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY: PEARSON SIMON WARSHAW & PENNY 44 MONTGOMERY STREET, STE. 2450 SAN FRANCISCO, CALIFORNIA 94104 JESSICA L. GRANT, ESQUIRE FOR PLAINTIFF MICHAEL ANDERSON & DANNY WIMPRINE: FOR PLAINTIFF CRAIG NEWSOME: BY: LIEFF, CABRASER, HEIMANN & BERNSTEIN 275 BATTERY STREET, 30TH FLOOR SAN FRANCISCO, CALIFORNIA 94111 KELLY M. DERMODY, ESQUIRE JOSEPH R. SAVERI, ESQUIRE CAFFERTY FAUCHER LLP 1717 ARCH STREET, STE. 3610 PHILADELPHIA, PENNSYLVANIA 19103 BRYAN CLOBES, ESQUIRE REINHARDT WENDORF & BLANCHFIELD 332 MINNESOTA STREET SAINT PAUL, MINNESOTA 55101 GARRETT D. BLANCHFIELD, ESQUIRE FOR PLAINTIFF BRYON BISHOP: BY: WEINSTEIN KITCHENOFF & ASHER 1845 WALNUT STREET, STE. 1100 PHILADELPHIA, PENNSYLVANIA 19103 STEVEN A. ASHER, ESQUIRE RAM & OLSON 555 MONTGOMERY STREET, STE. 820 SAN FRANCISCO, CALIFORNIA 94111 MICHAEL F. RAM, ESQUIRE KARL OLSON, ESQUIRE

BY:

FOR PLAINTIFF SAMUEL JACOBSON: BY:

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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FOR PLAINTIFF DAMIEN RHODES: BY:

FARUQI & FARUQI 2600 PHILMONT AVENUE, STE. 324 HUNTINGDON VALLEY, PENNSYLVANIA 19006 STEPHEN E. CONNOLLY, ESQUIRE LIEFF, CABRASER, HEIMANN & BERNSTEIN 275 BATTERY STREET, 30TH FLOOR SAN FRANCISCO, CALIFORNIA 94111 JOSEPH R. SAVERI, ESQUIRE KEKER & VAN NEST 710 SANSOME STREET SAN FRANCISCO, CALIFORNIA 9411 ROBERT A. VAN NEST, ESQUIRE ADAM LAURIDSEN, ESQUIRE KILPATRICK STOCKTON 1100 PEACHTREE STREET, NE, STE. 2800 ATLANTA, GEORGIA 30309 R. CHARLES HENN JR., ESQUIRE KILPATRICK STOCKTON 607 14TH STREET, NW, STE. 900 WASHINGTON, DC 20005 PETER M. BOYLE, ESQUIRE MILLER, CANFIELD, PADDOCK AND STONE 101 NORTH MAIN, 7TH FLOOR ANN ARBOR, MICHIGAN 48104 GREGORY L. CURTNER, ESQUIRE ROBERT J. WIERENGA, ESQUIRE NCAA P.O. BOX 6222 INDIANAPOLIS, INDIANA 46206 ELSA KIRCHER COLE, VICE PRESIDENT OF LEGAL AFFAIRS AND GENERAL COUNSEL LONG & LEVIT 465 CALIFORNIA STREET, 5TH FLOOR SAN FRANCISCO, CALIFORNIA 94104 JASON A. GELLER, ESQUIRE

BY: FOR DEFENDANT ELECTRONIC ARTS: BY:

FOR DEFENDANT CLC: BY:

BY: FOR DEFENDANT NCAA: BY:

BY:

BY:

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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THURSDAY, DECEMBER 17, 2009

3:05 P.M.

THE CLERK:

CALLING THE MATTER OF KELLER VERSUS

ELECTRONIC ARTS, CIVIL ACTION C-09-1967, O'BANNON VERSUS NCAA, CIVIL ACTION NUMBER C-09-3329, BISHOP VERSUS ELECTRONIC ARTS, CIVIL ACTION C-09-4128, NEWSOME VERSUS NCAA, CIVIL ACTION NUMBER C-09-4882, ANDERSON VERSUS NCAA, CIVIL ACTION NUMBER C-09-5100, WIMPRINE VERSUS NCAA, CIVIL ACTION C-09-5134, JACOBSON VERSUS NCAA, CIVIL ACTION NUMBER C-09-5372 AND RHODES VERSUS NCAA, CIVIL ACTION NUMBER C-09-5378. COUNSEL, PLEASE STATE YOUR APPEARANCES FOR THE RECORD. THE COURT: DO IT IN THE ORDER THAT I SET. AND IF

THERE IS MORE THAN ONE ATTORNEY FOR ANY GIVEN CLIENT, IF YOU CAN JUST INTRODUCE YOUR COLLEAGUE RATHER THAN HAVE EVERYBODY COME UP AND SAY THEIR NAME. KELLER? MR. CAREY: ROB CAREY FROM HAGENS BERMAN ALONG WITH

LEONARD ARAGON HAGENS BERMAN AND STUART PAYNTER OF THE PAYNTER LAW FIRM ON BEHALF OF MR. KELLER. MR. VAN NEST: BOB VAN NEST, YOUR HONOR, KEKER & VAN I AM

NEST FOR ELECTRONICS ARTS DEFENDANT IN THE KELLER CASE. HERE WITH ADAM LAURIDSEN. MR. HENN: STOCKTON. I'M CHARLIE HENN WITH KILPATRICK

I'M HERE WITH PETE BOYLE FROM MY FIRM AND WE'RE HERE

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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ON BEHALF OF THE COLLEGIATE LICENSING COMPANY. MR. CURTNER: GREG CURTNER. GOOD AFTERNOON, YOUR HONOR, MY NAME IS

I'M HERE WITH MY PARTNER ROBERT WIERENGA AND

ELSA KIRCHER COLE, WHO IS THE GENERAL COUNSEL OF THE NCAA. THE COURT: O'BANNON. MR. HAUSFELD: MICHAEL -MR. CURTNER: AND JASON GELLER. I'M SORRY. GOOD AFTERNOON, YOUR HONOR, OKAY.

MR. GELLER IS HERE AS WELL. MR. HAUSFELD: O'BANNON. MICHAEL HAUSFELD FOR PLAINTIFF

WITH ME IS MICHAEL LEHMANN AND JON KING ALSO FROM

OUR LAW FIRM. THE COURT: OKAY. AND DO WE HAVE THE SAME DEFENDANT

ATTORNEYS FOR ALL OF THE DEFENDANTS IN THAT CASE? MR. CURTNER: THE COURT: MR. ASHER: STEVE ASHER. YES.

SO, BISHOP? GOOD AFTERNOON, YOUR HONOR, MY NAME IS I'M HERE

I'M FROM PHILADELPHIA, PENNSYLVANIA.

FOR PLAINTIFF BRYON BISHOP. RAM FROM SAN FRANCISCO. THE COURT:

I AM HERE WITH CARL OLSON AND MIKE

THEY'RE LOCAL COUNSEL.

OKAY.

AGAIN, THE DEFENDANTS ARE THE SAME ATTORNEYS FOR ALL THESE CASES, I AM ASSUMING? MR. BOYLE: THAT'S CORRECT, YOUR HONOR.

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEWSOME?

THE COURT:

SO, NEWSOME?

WHO HAS THE PLAINTIFF IN

MS. DERMODY:

GOOD AFTERNOON, YOUR HONOR, KELLY

DERMODY AND MY PARTNER JOSEPH SAVERI FOR THE NEWSOME PLAINTIFFS. MR. SAVERI: THE COURT: MR. CLOBES: GOOD AFTERNOON, YOUR HONOR. AND ANDERSON? GOOD AFTERNOON, YOUR HONOR, BRYAN

CLOBES FROM PHILADELPHIA, CAFFERTY FAUCHER, COUNSEL FOR ANDERSON AND PLAINTIFF WIMPRINE AS WELL, IN BOTH THOSE CASES. THE COURT: JACOBSON? MR. BLANCHFIELD: GOOD AFTERNOON, YOUR HONOR, I'M OKAY.

GARRETT BLANCHFIELD HERE ON BEHALF OF PLAINTIFF JACOBSON. HERE WITH JESSICA GRANT, WHO IS LOCAL COUNSEL. THE COURT: AND RHODES?

ANYBODY HERE ON RHODES?

MR. CONNOLLY:

GOOD AFTERNOON, YOUR HONOR, STEVE

CONNOLLY ON BEHALF OF DAMIEN RHODES AND CO-COUNSEL JOSEPH SAVERI. MR. SAVERI: CO-COUNSEL'S WAY. GOOD AFTERNOON, YOUR HONOR JOSEPH SAVERI, AGAIN, ON BEHALF OF PLAINTIFF. THE COURT: OKAY. I DIDN'T MEAN TO STAND IN MY

IN TERMS OF CONSOLIDATION, I'M GENERALLY INCLINED TO

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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CONSOLIDATE FOR ALL PURPOSES WITH THE POSSIBLE EXCEPTION OF TRIAL. AND IF I DO CONSOLIDATE ALL THE CASES, AND IT TURNS OUT

THAT THE TRIAL ISN'T MANAGEABLE WITH ALL THOSE ISSUES, THEN WE CAN ALWAYS DE-CONSOLIDATE AND PICK AND CHOOSE WHAT ISSUES SHOULD BE TRIED TOGETHER OR SEPARATELY. BUT IN TERMS OF SCHEDULING AND CASE MANAGEMENT AND DISCOVERY, I THINK IT MAKES SENSE TO CONSOLIDATE THEM AND DO THE THINGS IN THE MOST EFFICIENT WAY THAT WE CAN. IN THAT REGARD, I AM SORT OF INTERESTED IN THESE TENNESSEE CASES AND THE NEW JERSEY CASE. I DON'T KNOW IF IT

WOULD MAKE SENSE TO MOVE TO TRANSFER THE TENNESSEE CASES HERE OR MOVE TO TRANSFER THESE CASES TO TENNESSEE. YOU SAY YOU ARE

GOING TO REMOVE THE NEW JERSEY CASE, OR TRY TO, YOU CAN THEN PERHAPS TRANSFER THAT, MAYBE SOMEONE WANTS TO SUGGEST AN MDL; DOES IT MAKE SENSE TO PROCEED IN BOTH TENNESSEE AND NEW JERSEY AND HERE ON THESE CASES? MR. VAN NEST: ELECTRONICS ARTS. O'BANNON. WITH RESPECT TO THE TENNESSEE CASES, THE STATUS THERE IS THAT THEY WERE FILED IN STATE COURT, REMOVED, THERE HAS BEEN A MOTION TO REMAND, WHICH HAS NOT BEEN RESPONDED TO. SO THOSE CASES ARE NOT PERMANENTLY IN FEDERAL COURT YET. THE COURT: TENNESSEE? ARE THEY ALL IN FRONT OF ONE JUDGE IN YOUR HONOR, BOB VAN NEST FOR

WE ARE ONLY IN THE KELLER CASE, NOT IN

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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MR. VAN NEST: THE COURT:

THEY ARE. DO WE KNOW THE --

WHO IS IT?

MR. CURTNER: THE REPORTER: MR. CURTNER: THE REPORTER: MR. CURTNER:

YOUR HONOR, JUST TO CLARIFY. COUNSEL, I'M SORRY. I'M SORRY, GREG CURTNER FOR THE NCAA. THANK YOU. IN THE TENNESSEE CASE, KNUCKLES, THERE

WERE SEPARATE CASES FILED IN STATE COURT AGAINST EA AND NCAA AND CLC. THEY WERE BOTH REMOVED. I UNDERSTAND THERE HAS BEEN

A MOTION TO REMAND THE EA SPORTS MATTER, BUT WE HAVE NOT YET RECEIVED A MOTION TO REMAND, ALTHOUGH WE WOULDN'T BE SURPRISED BUT THAT WE GET ONE. THE COURT: THE QUESTION IS, DOES ANYONE KNOW WHO

THE JUDGE IS IN TENNESSEE OR IF THERE IS MORE THAN ONE? NO. OKAY.

YOU MIGHT KEEP THAT IN MIND. MR. CURTNER: YOUR HONOR, WE CERTAINLY AGREE THAT IT

WOULD MAKE SENSE IF THOSE STAY IN FEDERAL COURT THAT THEY BE ALL HEARD IN THE SAME PROCEEDING, AND WE WOULD INTEND TO MOVE. YOU HAVE ALREADY RULED ON OUR MOTION TO CHANGE VENUE TO INDIANA, SO IT PROBABLY LOOKS LIKE OUR NEXT MOVE IS TO BRING IT ALL HERE. WE HAVE TO MAKE SURE IT'S GOING TO STAY IN

FEDERAL COURT FIRST. THE COURT: OKAY. WELL, YOU CAN EVEN TALK TO THE

PLAINTIFFS AND TELL THEM ABOUT THIS CASE AND PERHAPS THEY WOULD

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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AGREE TO STAY IN FEDERAL COURT AND GET TRANSFERRED TO A PLACE WHERE THEY WOULD HAVE SO MUCH COMPANY. MR. VAN NEST: CASE, YOUR HONOR. THE COURT: OKAY. I THINK THEY ARE WELL AWARE OF THIS

AS FAR AS THE REST OF CASE MANAGEMENT, I GUESS WE WILL TALK ABOUT THAT LATER, BUT IN TERMS OF THE MOTION TO DISMISS, LET'S START WITH KELLER. I CAN GIVE YOU MORE THAN A HALF AN HOUR, BUT I DON'T HAVE AN UNLIMITED AMOUNT OF TIME FOR ALL OF THESE MOTIONS, SO WE WILL HAVE TO DIVIDE IT UP IN SOME KIND OF WAY. MR. VAN NEST: HAVE DONE THAT. YOUR HONOR, ON THE DEFENSE SIDE, WE

I INTENDED TO START AND CONSOLIDATE BOTH THE

MOTION TO DISMISS AND THE SLAPP MOTION FILED BY ELECTRONICS ARTS ON KELLER. THAT COVERS A LOT OF THE ISSUES, AND THEN

THERE WOULD BE SHORT PRESENTATIONS FROM THE NCAA AND POSSIBLY CLC. THE COURT: OKAY. SO, HANDLING THOSE TWO MOTIONS

MR. VAN NEST:

TOGETHER, YOUR HONOR, I INTEND TO MAKE JUST FOUR POINTS. AND THE FIRST POINT IS THAT ELECTRONIC ARTS VIDEO GAMES ARE CERTAINLY ENTITLED TO FIRST AMENDMENT PROTECTION JUST LIKE A NOVEL, OR A MOVIE, OR ANY OTHER EXPRESSIVE WORK. THE COURT: IN GENERAL THAT'S TRUE UNLESS THEY FALL

SHORT ON SOME OTHER GROUND.

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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MR. VAN NEST:

INDEED.

AND HERE, BOTH IN CALIFORNIA

AND IN THE NINTH CIRCUIT, THE TRANSFORMATIVE USE TEST IS THE TEST THAT'S APPLIED IN DETERMINING WHETHER OR NOT THERE IS A CLAIM FOR PRIVACY. AND HERE, THESE GAMES ARE SO TRANSFORMATIVE THAT THEY CLEARLY QUALIFY FOR FIRST AMENDMENT PROTECTION AS A MATTER OF LAW BECAUSE THEY ARE SO MULTIFEATURED, AS YOU WILL SEE IN A MINUTE, AND HAVE SO MANY ELEMENTS IN THEM, IT COULD NEVER BE SAID THAT THE LIKENESS OF MR. KELLER OR ANY OTHER ATHLETE, EVEN IF WE WERE USING IT, WAS THE SUM AND SUBSTANCE FOR THE ENTIRETY OF THE GAME ITSELF. SO UNDER THAT TRANSFORMATIVE USE TEST, AS

I WILL GO INTO IN A MOMENT WE'RE ENTITLED TO A DISMISSAL NOW. THE COURT: I AM NOT SURE I WOULD LOOK AT THE I THINK ONE WOULD NEED TO LOOK AT

TRANSFORMATION THAT BROADLY.

THE TRANSFORMATION OF THE INDIVIDUALS AND NOT JUST HOW MUCH OTHER STUFF THEY WERE PUT IN WITH. MR. VAN NEST: WELL, LET'S GO TO THAT, YOUR HONOR,

BECAUSE I THINK THE TEST REALLY IS IN BOTH THE WINTER CASE AND ALL THE CASES THAT HAVE LOOKED AT THIS, IS THE WORK AS A WHOLE TRANSFORMATIVE? IS THE WORK AS A WHOLE TRANSFORMATIVE?

WHAT WE ARE SAYING HERE TODAY IS EVEN IF WE WERE USING THE LIKENESS, WHICH WE DON'T CONCEDE AS A MATTER OF FACT, BUT AS A MATTER OF PLEADING FOR TODAY'S PURPOSES WE WILL CONCEDE IT, YOU LOOK AT THE WORK AS A WHOLE, AND SEE WHETHER OR NOT, GIVEN ALL ITS ASPECTS, IT'S TRANSFORMATIVE OR NOT.

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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SO, FOR EXAMPLE, LOOKING AT THESE VIDEO GAMES, THEY HAVE CONTAINED WITHIN THEM ORIGINAL GRAPHICS THROUGHOUT, ANIMATION OF PLAY ACTION, THEY HAVE MUSIC, THEY HAVE SOUND EFFECTS, THEY HAVE VOICE COMMENTARY, WHICH HAS NOTHING TO DO WITH ANY INDIVIDUAL LIKENESS OF ANY PARTICULAR ATHLETE. BEYOND THAT -THE COURT: UNLESS YOU UPLOAD THE ADD-ONS, IN WHICH AND

CASE THE ANNOUNCER USES THEIR NAME. MR. VAN NEST: THE ANNOUNCER DOESN'T USE THE NAME. LET'S

THE UPLOAD, YOUR HONOR, IS PROVIDED BY THIRD PARTIES.

ASSUME FOR TODAY'S PURPOSE, LET'S ASSUME FOR TODAY'S PURPOSE THAT THAT'S PART OF THE GAME, EVEN THOUGH WE WOULDN'T CONCEDE THAT AS A MATTER OF FACT DOWN THE LINE. EVEN THEN, YOU LOOK AT THE VISUAL EFFECTS AS A AND HERE YOU HAVE PLAY ACTION ON THE FIELD, YOU HAVE

STADIUMS, YOU HAVE FANS -THE COURT: THE STADIUMS ARE THE STADIUMS THAT THEY

MR. VAN NEST: THE COURT:

THEY ARE.

THEY ARE NOT TRANSFORMED. THEY ARE --

MR. VAN NEST: THE COURT:

WHAT I'M LOOKING AT IS THIS ULALA CASE,

WHERE NOT ONLY WAS MS. ULALA LOOKING DIFFERENT, BUT SHE WAS PUT IN THE 25TH CENTURY, AND SHE WAS A REPORTER INSTEAD OF A SINGER, AND HERE YOU HAVE GOT PEOPLE IN PRESENT TIME IN THEIR

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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PRESENT STADIUMS, THEY'RE FOOTBALL PLAYERS NOT 25TH CENTURY REPORTERS. MR. VAN NEST: THAT'S ALL TRUE. BUT IN ULALA, YOUR THEY TALKED ABOUT

HONOR, THEY TALKED ABOUT A LOT OF ASPECTS.

THE CONTEXT, THE SURROUNDING, AND SO ON AND SO FORTH. THE COURT: RIGHT. IN THESE GAMES, AND I ENCOURAGE THE

MR. VAN NEST:

COURT TO LOOK AT THEM IF YOUR HONOR HASN'T, FOR EXAMPLE, THE STADIUMS THEY PLAY IN ARE GRAPHIC REPRESENTATIONS. THEY ARE

ART IN AND OF THEMSELVES CREATED BY ELECTRONIC ARTS. THE COURT: RIGHT, BUT THEY LOOK LIKE THE COLLEGE THEY AREN'T THE

FOOTBALL STADIUMS THAT THE PEOPLE PLAYED IN. 25TH CENTURY, FOR EXAMPLE, OR OUTER SPACE. MR. VAN NEST:

THEY DO, BUT WHETHER OR NOT SOMETHING THERE ARE PLENTY OF

IS REALISTIC OR NOT IS NOT THE TEST.

EXAMPLES OF REALISTIC PORTRAYALS THAT ARE JUST AS ENTITLED TO FIRST AMENDMENT PROTECTION AS -THE COURT: REALISM IS NOT TRANSFORMATION. IT DEPENDS ON HOW YOU LOOK AT IT,

MR. VAN NEST: YOUR HONOR.

IF, FOR EXAMPLE, YOU PORTRAY THE LIFE OF RUDOLPH THE FACT THAT YOU USE HIS NAME AND

VALENTINO AS HIS LIFE WAS.

HIS LIKENESS AND AN ACTOR DRESSED UP TO LOOK LIKE HIM AND PLAY THAT ROLE, THAT'S CLEARLY ENTITLED TO FIRST AMENDMENT PROTECTION AND CAN BE TRANSFORMATIVE IN LIGHT OF THE ELEMENTS AROUND IT.

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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SIMILARLY, JUST LOOKING AT IT GRAPHICALLY, THIS PHOTOGRAPH OF TIGER WOODS -- HE HAS BEEN GETTING A LITTLE PRESS LATELY. (COUNSEL DISPLAYS BLOWUP.) THE COURT: THEY PAY HIM, DON'T THEY? NOT HERE THEY DID NOT. NOT HERE.

MR. VAN NEST:

THIS IS AN ETW CASE.

THIS IS A LIKENESS OF TIGER

WOODS ON A GOLF COURSE SURROUNDED BY FEATURES OF GREAT TOURNAMENTS. THIS WAS DECLARED BY THE SIXTH CIRCUIT TO BE

TRANSFORMATIVE EVEN THOUGH THERE'S VERY LITTLE IN IT OTHER THAN JUST THE PICTURE OF TIGER WOODS. SIMILARLY, IN THE WINTER CASE, ONE OF THE LEADING CALIFORNIA CASES, THE PLAINTIFF THERE WAS -- THE PLAINTIFFS WERE JOHNNY AND EDGAR WINTER. WERE JOHNNY AND EDGAR AUTUMN. THE CHARACTERS IN THE COMIC BOOK AS YOU CAN SEE, THE FACES ARE

SIMILAR, THE CLOTHING IS SIMILAR, THE INSTRUMENTS ARE SIMILAR, THE PHRASES ARE SIMILAR. THE COURT: THEY WERE. THEY ARE, AND THE COURT FOUND THAT

MR. VAN NEST: THIS WAS TRANSFORMATIVE.

SO THE FACT THAT SOMETHING IS REALISTIC DOES NOT TAKE IT OUTSIDE OF THE STANDARD AT ALL. THE TEST IS, IF YOU

LOOK AT WINTER AND YOU LOOK AT KIRBY VERSUS SEGA, THE TEST IS WHAT DOES -THE COURT: KIRBY IS ULALA?

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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MR. VAN NEST:

RIGHT.

IF YOU LOOK AT THAT CASE,

YOUR HONOR, THE TEST IS WHAT DOES THE WORK AS A WHOLE CONSTITUTE? IF I MAY JUST FOR A MINUTE HERE, THEY ARE CLAIMING THAT THEIR LIKENESS IS THE SUM AND SUBSTANCE OF THIS GAME AND THE VALUE OF THE GAME. AND ASSUMING FOR A MINUTE, EVEN IF WE

USE THEIR LIKENESS, THERE ARE SO MANY FEATURES OF THIS, THEY HAVE NOTHING TO DO WITH THE LIKENESS OF KELLER OR ANY OTHER COLLEGE ATHLETE. YOU HAVE, FOR EXAMPLE, COMMENTATORS AND YOU HAVE THE GAME --

COMMENTARY WITH NO PLAYERS INVOLVED. THE COURT:

ARE THE COMMENTATORS REAL PEOPLE? SOMETIMES YES, SOMETIMES NO.

MR. VAN NEST: THE COURT:

ARE THEY PAID? IF THEY ARE PROFESSIONALS AND THEY

MR. VAN NEST:

COME IN AND DO TAPE-OVERS, AND ACT OUT THE ROLE, THEN THEY ARE PAID, BUT THEY CAN BE IMAGINARY AS WELL. BUT THERE THEY ARE

BEING PAID FOR THEIR WORK AND DOING A VOICEOVER AND SO ON AND SO FORTH. THEY ARE IN A DIFFERENT CATEGORY ALTOGETHER. THE USER CREATES THE IMAGE EVERY TIME. IT'S THE

USER OF THE GAME THAT SELECTS THE OFFENSIVE PLAYS AND THE DEFENSIVE PLAYS. THEY ARE NOT REPLICATING ANY PARTICULAR REAL

GAME, THEY ARE CREATING A NEW EXPRESSION EVERY TIME THEY PLAY. AND, FOR EXAMPLE, A USER COULD PLAY THIS GAME FOR A YEAR AND NEVER SEE THE IMAGE THAT PLAINTIFFS CLAIM IS MR. KELLER BECAUSE HE, THE IMAGE THEY'RE TALKING ABOUT MIGHT

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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APPEAR ON ONE TEAM FOR ONE YEAR FOR SOME PLAYS AND NOT OTHERS. IT'S CERTAINLY NOT THE SUM AND SUBSTANCE OF THE GAME. THIS IS WHAT YOU ACTUALLY SEE. YOU SEE PLAYERS IN

HELMETS, IN JERSEYS WITH NUMBERS AND UNIFORMS THAT ARE LICENSED FROM THE NCAA, AND THEY PLAY BASED ON THE ACTION CREATED BY THE USER OF THE GAME. THAT ACTION AND THAT DETERMINATION IS CREATED BY THE SOFTWARE AND THE ANIMATION DESIGNED BY EA. THE ONLY TIME IN

THE GAME THAT YOU EVER EVEN SEE A FACE IS AT THE COIN TOSS WHEN THE CAPTAINS COME OUT. CAPTAIN. EVEN HERE, THESE ARE NOT THE IMAGES OR THE NAMES OF THE PLAYERS. THESE ARE ARTISTIC FACES CREATED BY EA DESIGNERS IT TURNS OUT MR. KELLER WAS NEVER A

AND ENGINEERS THAT THE USER CAN MODIFY, CHANGE, SWITCH, AND SUBSTITUTE. IMAGES. AND IT GOES WITHOUT SAYING THEN, YOU'VE GOT LOTS OF OTHER FEATURES. YOU'VE GOT MASCOTS, CHEERLEADERS, REFEREES. YOU'VE GOT ALL THE OTHER THESE INDIVIDUAL FACES ARE ARTWORK, THEY ARE NOT

YOU'VE GOT FANS IN THE STANDS.

ACCOUTERMENTS THAT MAY OR MAY NOT APPEAR AT A COLLEGE FOOTBALL GAME. AND GIVEN THE CASE LAW, YOUR HONOR, I WANT TO WALK THROUGH THESE FOR JUST A MINUTE, THESE GAMES ARE FAR MORE TRANSFORMATIVE THAN ANYTHING THAT HAS BEEN RULED UPON YET, INCLUDING THE WINTER CASE AND INCLUDING KIRBY. BECAUSE THOSE

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

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CASES INVOLVE PRINTED EXPRESSION ON THE PAGE, OR IN CASE OF KIRBY, A VIDEO GAME WITH A FIGURE IN IT THAT LOOKS LIKE, TALKS LIKE, HAS LOTS OF SIMILAR CHARACTERISTICS TO THE ACTUAL ROCK ARTIST FROM THE '70S, AND THE COURT HELD THAT BECAUSE OF THE CONTEXT AND THE ENVIRONMENT AND THE TRANSFORMATIVE ELEMENTS, THAT WAS PROTECTED BY THE FIRST AMENDMENT AND NOT SUBJECT, NOT SUBJECT TO A CLAIM. SIMILARLY -BOTH KIRBY AND WINTER STRIKE ME AS MORE

THE COURT:

TRANSFORMATIVE THAN THIS CASE. MR. VAN NEST: I DON'T THINK SO, YOUR HONOR, BECAUSE

HERE, AGAIN, IT'S NOT A QUESTION OF WHETHER OR NOT IT'S REALISTIC; IT'S A QUESTION OF WHAT ELEMENTS ARE IN THE GAME, OR THE BOOK, OR THE NOVEL BEYOND AND SURROUNDING THE QUOTE "LIKENESS" OF THE PLAINTIFF. THE COURT: IF, FOR EXAMPLE --

THE WORD "TRANSFORM" MEANS TO CHANGE.

IT SEEMS TO ME IT'S MORE A QUESTION OF HOW MUCH HAVE YOU CHANGED FROM REALITY. MR. VAN NEST: NO, IT'S, WITH ALL DUE RESPECT, YOUR

HONOR, IT'S NOT HOW MUCH YOU'VE CHANGED FROM REALITY, IT'S HOW MUCH YOU'VE CHANGED FROM MERELY THE CELEBRITY OF THE PLAINTIFF. FOR EXAMPLE, IN THE COMEDY III CASE, THE IMAGE WAS THIS IMAGE OF THE THREE STOOGES. (COUNSEL DISPLAYS BLOWUP.) THIS WAS RENDERED BY AN ARTIST, BUT IT IS NOTHING MORE THAN THE BARE, SORT OF UNADORNED IMAGE OF THE CELEBRITIES

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THEMSELVES PLACED ON A T-SHIRT OR SOMETIMES ON A POSTER. AND THE COURT SAID THAT IS NOT TRANSFORMATIVE BECAUSE THERE ARE NO OTHER ELEMENTS OF ARTISTIC CREATION AROUND IT. IN OUR CASE, WE HAVE TAKEN FOOTBALL PLAYERS OF A GENERIC TYPE AND PLACED THEM IN A GAME THAT HAS LOTS OF OTHER ELEMENTS; HAS THE ABILITY FOR THE USER TO CHANGE IT, HAS THE ABILITY FOR THE USER TO PLAY A WHOLE TEAM FOR A YEAR, THE STUDENT ATHLETES IN IT CAN EVOLVE DURING THE YEAR, YOU CAN PLAY DIFFERENT TEAMS IN DIFFERENT STADIUMS, IN DIFFERENT TOWNS, TEAMS THAT NEVER PLAYED BEFORE CAN PLAY EACH OTHER. IN OTHER

WORDS, THERE ARE SO MANY ARTISTIC ELEMENTS TO THE GAMES THAT THEY HAVE BEEN TRANSFORMED. I WOULD SAY THIS CASE FALLS FAR TO THE RIGHT OF EVEN KIRBY WHERE THERE THE MAIN FEATURE WAS THIS ONE CHARACTER. YES, SHE WAS IN A DIFFERENT SETTING, BUT THE MAIN FEATURE OF THE GAME WAS MS. ULALA, UNLIKE THESE GAMES WHERE THERE IS AN ENTIRE EXPERIENCE AROUND COLLEGE FOOTBALL. YOU, IN FACT,

EXPERIENCE AN ENTIRE AFTERNOON OR AN ENTIRE SEASON. MOST OF THE CASES THAT THE PLAINTIFFS ARE RELYING ON ARE CASES IN WHICH THE IMAGE OF THE PLAINTIFF IS USED IN AN ADVERTISEMENT, A PROMOTION. YOU CAN'T PUT KAREEM ABDUL-JABBAR

NEXT TO AN AUTOMOBILE AND SAY THAT IS TRANSFORMATIVE AND GET AWAY WITH IT BECAUSE HE IS BEING USED IN AN ADVERTISEMENT TO PROMOTE A PRODUCT THAT HE'S GOT NOTHING TO DO WITH.

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THERE IS NO CLAIM HERE THAT MR. KELLER IS BEING USED TO ADVERTISE THIS PRODUCT OR TO ENGAGE IN SOME KIND OF COMMERCIAL SPEECH. IT IS A TRANSFORMATIVE WORK THAT IS -- HAS

ELEMENTS ADDED TO IT THAT, AS A MATTER OF LAW, BASED ON THESE CALIFORNIA AND OTHER CIRCUIT CASES, ESTABLISH TRANSFORMATION. THERE IS A SECOND POINT I WANT TO MAKE, YOUR HONOR, APART FROM TRANSFORMATION. THERE IS A SECOND TEST. AND THAT

IS THE TEST OF PUBLIC INTEREST. THESE GAMES ALSO ARE EXEMPT INDEPENDENT OF THE TRANSFORMATION TEST BECAUSE NCAA FOOTBALL AND BASKETBALL ARE MATTERS OF PUBLIC INTEREST. AND THERE ARE A HOST OF CASES

DEALING WITH FANTASY FOOTBALL AND FANTASY BASEBALL WHERE ALL THE PUBLISHERS PRESENTING ARE THE NAMES, IN SOME CASES IMAGES, STATISTICS AND PERSONAL INFORMATION ABOUT REAL PLAYERS IN A REAL LIVE SEASON. AND THE COURT IN CBS AND CBC ALL HELD THE PUBLIC INTEREST TEST MEANS PUBLISHERS HAVE A RIGHT TO MAKE THAT INFORMATION TO THE PUBLIC WHETHER THEY ARE DOING IT IN THE SATURDAY OR SUNDAY NEWSPAPER RIGHT AFTER THE CAL GAME, OR DOING IT FOR ENTERTAINMENT PURPOSES MONTHS OR YEARS LATER. THE RULING IN CBS, IN CBC -THE COURT: THE SPECTRUM. TO ME, THAT'S SORT OF THE OTHER END OF THAT WAS

THERE IS PROTECTION AT ONE END WHERE YOU ARE HERE'S WHAT HAPPENED

PROVIDING ESSENTIALLY NEWS, LIKE FACTS.

ON THIS DATE, HERE'S THE SCORE OF THAT GAME, HERE'S THE STAT.

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ALL THOSE SORT OF THINGS THAT ARE REPORTING AS FACTS. ONE END.

THAT'S

THEN YOU HAVE THE MIDDLE SECTION WHERE THERE MIGHT BE LIABILITY. AND THEN THE OTHER END WHERE YOU HAVE

TRANSFORMED IT SO ARTISTICALLY AND DIFFERENTLY THAT THERE IS NO LIABILITY. AND SO THE QUESTION IS, WHERE DO THOSE TWO ENDS STOP AND THE PART IN THE MIDDLE IS THE ONE WHO'S UNPROTECTED. MR. VAN NEST: YOUR HONOR. THE COURT: END. MR. VAN NEST: IN EITHER CASE, I WOULD SUBMIT, THESE I SEE THEM AS A CONTINUUM, ONE AT EITHER THOSE ARE REALLY DIFFERENT TESTS,

GAMES FALL COMPLETELY WITHIN THE SPHERE THAT IS PROTECTED. ON THE PUBLIC INTEREST SIDE, IF YOU CAN PROTECT THE MERE PUBLICATION AS PART OF A GAME OF THE NAMES, PERSONAL INFORMATION AND STATISTICS OF A PLAYER, CERTAINLY YOU CAN PUBLISH INFORMATION HERE WHICH IS NOT EVEN THAT SPECIFIC ABOUT COLLEGE ATHLETES AND COLLEGE PERFORMANCE IN GENERAL. WE ARE

CLEARLY WITHIN THE SPHERE OF THE PUBLIC INTEREST CASES. AND AS I SAID ON THE TRANSFORMATION SIDE, IF YOU CAN TAKE A FIGURE OF TIGER WOODS AND PLACE A FEW ARTIFACTS AROUND IT THAT REPRESENT THE HISTORY OF HIS ACHIEVEMENTS IN GOLF, CERTAINLY TAKING GENERIC COLLEGE FOOTBALL PLAYERS AND PLACING THEM IN A CONTEXT OF AN INTERACTIVE, MULTIFEATURED GAME WITH

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LOTS OF OTHER ELEMENTS, IT CLEARLY PASSES THAT TEST. THE COURT: SLAPP SUIT. MR. VAN NEST: THE COURT: THE SLAPP SUIT, I CAN BE VERY BRIEF. OKAY. YOU MIGHT WANT TO MOVE ON TO THE

THE MERITS OF IT ARE ESSENTIALLY THE -THE MERITS ARE THE SAME --

MR. VAN NEST: THE COURT:

-- OF WHAT YOU ARE SAYING -THE POLICY ISSUE IS, IN CALIFORNIA,

MR. VAN NEST:

THE LEGISLATURE HAS DECLARED THAT THERE SHOULD BE SPECIAL PROTECTION FOR PUBLISHERS, ARTISTS, NOVELISTS, PEOPLE ENGAGING IN EXPRESSIVE WORKS, WHETHER THOSE ARE FOR HIRE OR NOT. THE COURT: WHAT'S THE SLAPP SUIT -- WHAT ARE THE

KINDS OF THINGS THAT THE LEGISLATURE CITED WHEN IT PASSED THE STATUTE? WHAT'S THE SORT OF GENERIC SLAPP SUIT? MR. VAN NEST: IT WAS STARTED PROBABLY AS A RESULT

OF VARIOUS LIBEL SUITS FILED BY BUSINESSES AGAINST PEOPLE WHO HAD SPOKEN OUT AGAINST THOSE BUSINESSES. BUT TODAY THE ANTISLAPP STATUTE HAS GONE FAR BEYOND THAT. AND IN THE HILTON CASE, THE NINTH CIRCUIT HAS HELD IT IN THAT CASE IT

APPLIES TO WORKS OF EXPRESSION LIKE THESE. HAPPENED TO BE A HALLMARK CARD. THE COURT:

DO YOU HAVE A PICTURE OF THAT ONE? I SURE DO.

MR. VAN NEST: (LAUGHTER.)

(COUNSEL DISPLAYS BLOWUP.)

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MR. VAN NEST:

I'VE GOT THEM ALL.

THIS IS A HALLMARK CARD WITH THE FACE OF PARIS HILTON, HER NAME AND A STOCK PHRASE SHE USES, "THAT'S HOT". SO THE NINTH CIRCUIT EVALUATED THIS AND DIDN'T SAY THAT THIS FELL OUTSIDE THE SPHERE OF TRANSFORMATION. IT IS A QUESTION OF FACT. IT SAID

EVEN THOUGH THEY ARE USING HER FACE,

HER NAME, HER EXPRESSION, THESE FEW OTHER ELEMENTS ON THE PAGE THEY SAID CREATE A QUESTION OF FACT. THE COURT: THEY DIDN'T THROW IT OUT AS A SLAPP

MR. VAN NEST:

THEY DID NOT.

THEY SAID THE SLAPP

STATUTE APPLIES AND WOULD APPLY TO A WORK LIKE THIS, BUT IN THIS PARTICULAR CASE, THEY SAID THESE FEW OTHER ELEMENTS DO CREATE A QUESTION OF FACT, EVEN THOUGH HERE THEY ARE ACTUALLY USING THE FACE, THE NAME, AND A STOCK EXPRESSION. THIS IS FAR

MORE -- FAR LESS PROTECTABLE THAN SOMETHING LIKE AN ELECTRONIC ARTS VIDEO GAME WITH ALL OF THESE OTHER ELEMENTS IN IT. THE COURT: THEY SAID THERE WAS A QUESTION OF FACT

OR THEY SAID THERE WAS A PROBABILITY OF SUCCESS? MR. VAN NEST: WELL, THEY SAID PROBABILITY OF

SUCCESS, QUESTION OF FACT, THEY BLURRED IT UP AND SAID WE CAN'T DECIDE THIS ON A SLAPP MOTION. BUT AS YOUR HONOR KNOWS, IN THIS, OUR PARTICULAR CASE, IF WE DEMONSTRATE, AS WE HAVE, THAT OUR CONDUCT, THESE GAMES, ARE ACTS OF EXPRESSION, WHICH WE HAVE DONE, THEN THE

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BURDEN SHIFTS TO THE PLAINTIFFS TO SHOW A PROBABILITY OF SUCCESS ON THE MERITS. THAT'S THE KEY LEVERAGE OF THE ANTISLAPP STATUTE; THAT CHANGING OF THE BURDEN. AND HERE, I WOULD SUBMIT AS I

HAVE, THAT BASED ON THE GAMES THEMSELVES, WHICH ARE BEFORE THE COURT ON A REQUEST FOR JUDICIAL NOTICE, WHICH IS NOT OPPOSED, THOSE GAMES ARE WHAT THEY ARE. THEY HAVE THE ELEMENTS THEY

HAVE, THEY ARE BASED ON ALL THE FEATURES WE TALKED ABOUT; AS A MATTER OF LAW, THEY CANNOT ESTABLISH A PROBABILITY OF SUCCESS THAT WE HAVE VIOLATED THE PRIVACY RIGHTS OF MR. KELLER OR ANY OTHER PUTATIVE CLASS MEMBER. THE COURT: LET ME SEE IF ANY OF YOUR COLLEAGUES

HAVE ANYTHING THEY NEED TO SAY OR ONE OF THE OTHER DEFENDANTS THAT'S NOT REPETITIVE OF WHAT MR. VAN NEST SAID. MR. CURTNER: GOOD AFTERNOON, YOUR HONOR, FOR THE I WILL

RECORD, AGAIN, I'M GREG CURTNER ON BEHALF OF THE NCAA. ADDRESS ENTIRELY DIFFERENT ISSUES THAN MR. VAN NEST.

TO RESPOND TO YOUR PRIOR QUESTION, THE JUDGE IN TENNESSEE IS LEON JENKINS. THE COURT: CASES? OKAY. HE HAS ALL OF THE TENNESSEE

THERE'S LIKE THREE OF THEM, IT SEEMS LIKE. MR. CURTNER: I THINK THERE'S ONLY TWO, BUT I AND WE ARE

BELIEVE THEY'RE BOTH IN FRONT OF THAT JUDGE. COMFORTABLE LITIGATING THERE.

CLOSE TO HOME FOR US.

LET ME JUST ADDRESS THE ISSUES THAT ARE PERTINENT

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ONLY TO THE NCAA, AND THEY ARE REALLY DIFFERENT THAN MR. VAN NEST'S ISSUES. I WILL BE BRIEF.

I WANT TO MAKE FOUR POINTS, AND THEY RELATE TO THE FIRST, FOURTH AND SIXTH COUNTS OF THE KELLER COMPLAINT. THE FIRST COUNT IS THE INDIANA RIGHT OF PUBLICITY STATUTE, AND IT IS ALLEGED ONLY AGAINST THE NCAA. AND THE

STATUTE ON ITS FACE BY ITS EXPRESS AND UNAMBIGUOUS TERMS REQUIRES A USE OF THE LIKENESS OF THE PERSONALITY IN QUESTION. THERE IS NO REAL DISPUTE THAT THE NCAA DOES NOT USE ANYWHERE, MUCH LESS IN INDIANA, THE LIKENESS OF ANYBODY. IF

THERE IS ANY USE GOING ON HERE, IT'S CERTAINLY DISPUTED, IT IS BY ELECTRONIC ARTS, AND THE NCAA SIMPLY DOES NOT USE ANYTHING. THE MOST THE ALLEGATIONS ARE AGAINST THE NCAA IS THAT IT SOMEHOW HAS TOLERATED, OR NOT STOPPED, OR NOT PROHIBITED THE USE BY EA OR -THE COURT: OR CONSPIRED. I AM COMING TO THAT.

MR. CURTNER: THE COURT:

IS THERE A CONSPIRACY CLAIM AGAINST YOU? BUT THE FIRST COUNT IS NOT A AND THERE'S AND

MR. CURTNER:

CONSPIRACY COUNT; THE FIRST COUNT IS ONLY USE.

SIMPLY -- IT'S BASICALLY ADMITTED THAT THERE IS NO USE.

YOU CANNOT REWRITE THE STATUTE, AS THE PLAINTIFFS WOULD HAVE THE COURT DO, TO MAKE IT THE EQUIVALENT OF TOLERATING, CONSPIRING, OR AIDING AND ABETTING, OR SOME OTHER KIND OF THING.

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THE COURT:

TO CHARGE CONSPIRACY, THEY HAVE TO

ALLEGE THAT YOU DID SOME UNDERLYING TORT AS YOU, EITHER YOU OR YOUR COLLEAGUES BRIEFED, SO I GUESS THE SERIOUS THAT'S THE UNDERLYING TORT AND THE BASIS FOR LIABILITY IS CONSPIRACY TO COMMIT THAT TORT. MR. CURTNER: EXCEPT THAT THE UNDERLYING TORT OR

STATUTORY VIOLATION IS ALLEGED ONLY AGAINST THE NCAA, AND IT IS ONLY UNDER THE INDIANA STATUTE, AND THE INDIANA STATUTE REQUIRES A USE. SO THERE CANNOT BE THE UNDERLYING VIOLATION TO

SUPPORT EITHER THE VIOLATION ITSELF OR THE CONSPIRACY TO VIOLATE BECAUSE THERE IS NO USE. GET OUT OF THAT BOX. AND THERE IS NO WAY THEY CAN

IT'S A LOGICAL IMPOSSIBILITY SO LONG AS

THERE'S NOTHING TO SUPPORT, AND THERE'S NO ALLEGATION THAT WOULD SUPPORT USE BY THE NCAA. SECOND POINT. THE STATUTE BY ITS EXPRESS TERMS ALSO

REQUIRES THAT SOME ATTRIBUTE OF THE PERSONALITY HAVE COMMERCIAL VALUE THAT IS BEING USED BY THE DEFENDANT. HERE, THERE IS NO ALLEGATION THAT MR. KELLER HAS COMMERCIAL -- HIS PERSONALITY OR ANY ATTRIBUTE OF HIS PERSONALITY HAS COMMERCIAL VALUE. THE ONLY ARGUMENT THAT

PLAINTIFFS MAKE IN RESPONSE TO OUR MOTION IS THAT THE GAME HAS VALUE. VALUE. AND THERE IS CERTAINLY NO DOUBT THAT THE GAME HAS THAT DOESN'T MEAN THAT ANY GIVEN INDIVIDUAL LIKE HE COULD HAVE ZERO VALUE,

MR. KELLER HAS ANY VALUE WHATSOEVER.

AND THERE IS NO ALLEGATION TO THE CONTRARY.

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THE ONLY OTHER ARGUMENT THEY MAKE IS THAT IN SOME DIFFERENT CIRCUMSTANCES, IN SOME DIFFERENT GAMES, SOME NFL PLAYERS ARE PAID MONEY FOR THEIR LIKENESS AND FOR THE RIGHT TO USE THEIR NAMES AND PHOTOGRAPHS, ET CETERA, IN A MUCH DIFFERENT GAME, IN A MUCH MORE REALISTIC GAME. BUT, AGAIN, THAT SAYS

NOTHING ABOUT THE CLAIM THAT MR. KELLER HAS ANY VALUE. WE DO NOT KNOW WHETHER MR. KELLER'S LIKENESS, PERSONALITY OR ATTRIBUTES, WHATEVER THEY CLAIM ARE BEING USED BY EA, HAVE ANY VALUE WHATSOEVER ON THE FACE OF THESE PLEADINGS. SO, THAT TAKES CARE OF COUNT ONE. THE FOURTH COUNT IS THE CONSPIRACY COUNT. HONOR HAS IT EXACTLY RIGHT. YOUR

THEY ALLEGE THE CONSPIRACY IS TO

VIOLATE -- IT IS TO VIOLATE THE RIGHT OF PUBLICITY STATUTE, BUT THE NCAA CAN'T DO THAT BECAUSE IT DOESN'T USE ANYTHING. NOW, PERHAPS, AND THEY DON'T SAY THIS, THEIR THEORY IS THAT IT IS A CONSPIRACY TO VIOLATE THE CALIFORNIA LAW ON PUBLICITY, BUT THEY PLEAD THEMSELVES INTO A CORNER THERE AS WELL BECAUSE THEY PLEAD EXPRESSLY IN THEIR COMPLAINT IN KELLER IN PARAGRAPH 13 AND PARAGRAPH 15 THAT BYLAW 12.5, WHICH PROHIBITS THE USE OF NAME, PICTURES AND LIKENESSES, IS MADE APPLICABLE TO CLC AND EA, AND THAT IN PARAGRAPH 15, THAT THE LICENSE AGREEMENT BETWEEN CLC AND EA FOR THE USE OF VARIOUS THINGS, WHICH INCLUDES THE NCAA NAME, AND THE STADIUMS, AND ALL THESE OTHER THINGS, EXPRESSLY PROHIBITS THE USE OF NAMES OR

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LIKENESSES. SO, ON THE FACE OF THIS COMPLAINT, THE NCAA IS ENFORCING ITS RULES THAT PROHIBIT THE USE OF NAMES, LIKENESSES, AND PICTURES. AND ON THE FACE OF THIS COMPLAINT, THE LICENSE

TO EA PROHIBITS THEM FROM DOING THOSE THINGS. NOW, SO MUCH FOR THE CONSPIRACY. THE CONSPIRACY ON

ITS FACE IS TO DO WHAT IS PERMITTED BY THE NCAA RULES, WHICH PROHIBITS EXACTLY WHAT THEY CLAIM IS GOING ON. SO THEN THEY SAY, OH, THERE IS A DIFFERENT CONSPIRACY REALLY GOING ON HERE, AND THAT IS A CONSPIRACY TO SORT OF SECRETLY VIOLATE THE NCAA BYLAW AND TO SECRETLY VIOLATE THE LICENSE AGREEMENT EXPRESS PROHIBITIONS, BUT AS TO THAT CONSPIRACY, THERE IS NOT A SHRED OF FACTUAL SUPPORT. THERE IS A CONCLUSION OF CONSPIRACY, BUT THAT'S NOT ENOUGH AS THE COURT WELL KNOWS FROM OTHER CASES, IN THE STATIC RAM CASE AND VARIOUS OTHERS, AND TWOMBLY AND IQBAL, THAT'S NOT ENOUGH. THEY HAVE TO PLEAD FACTS TO SUPPORT THAT CONCLUSION,

AND THEY CAN'T. NOW, THEY DO PLEAD THAT THERE WERE CONVERSATIONS BETWEEN THE NCAA AND EA, BUT THOSE ARE EQUALLY CONSISTENT WITH ENFORCING THE AGREEMENTS AS WRITTEN WHICH PROHIBIT THE SO-CALLED IMPROPER USE. AND THERE IS NO ALLEGATION WHATSOEVER

THAT WOULD SUPPORT THIS SORT OF SECRET SIDE CONSPIRACY OTHER THAN A SUSPICION AND A SUMMARY CONCLUSION. THEM THERE. THAT DOESN'T GET

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MY LAST POINT, THE SIXTH COUNT AGAINST THE NCAA IS A CONTRACT THEORY. THE CONTRACT IS SAID TO BE THE SIGNATURE BY

THE STUDENT ATHLETE DURING THE TIME THEY ARE A STUDENT ATHLETE ON AN ANNUAL CERTIFICATION UNDER BYLAW 12.5. YOU HAVE THAT BYLAW BEFORE YOU BECAUSE IT'S PLEAD IN SOME OF THESE CASES, AND IT IS ATTACHED IN ITS ENTIRETY TO A DECLARATION IN THE, ONE OF THE OTHER PLEADINGS, BUT IT'S NOT A CONTRACT IN ANY FORM. IT HAS NO QUID PRO QUO. IT HAS NO OFFER. IT HAS NO

ACCEPTANCE, HAS NO PERFORMANCE BY THE NCAA. IN IT THAT MAKES IT INTO A CONTRACT. CERTIFICATION. THE COURT: OKAY.

THERE IS NOTHING

IT IS NOTHING BUT A

MR. CURTNER:

JUST TO FINISH ON THAT, THE THEORY

THAT'S MADE IN THEIR BRIEF IS THAT THE -- THERE IS SOME IMPLIED DUTY IN THIS SO-CALLED CONTRACT BY THE NCAA NOT TO DO ANYTHING THAT WOULD PREVENT THEM FROM BEING ELIGIBLE. WELL, MR. KELLER WAS ELIGIBLE DURING THE ENTIRE TIME PERIOD THAT HE WAS A STUDENT ATHLETE. AND SO THE NCAA HAS NOT AND

IN ANY WAY BREACHED THIS CONTRACT, IF IT WAS A CONTRACT. SO THERE'S JUST NO BASIS FOR THE CONTRACT CLAIM EITHER. THOSE ARE THE ONLY CLAIMS AGAINST MY CLIENT. THANK YOU. THE COURT: MR. HENN: OKAY. THANK YOU.

I'M CHARLIE HENN HERE ON BEHALF OF

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COLLEGIATE LICENSING COMPANY.

AND FOR THE MOST PART, OUR

RESPONSES TO THE VARIOUS CLAIMS AGAINST CLC ARE IDENTICAL TO NCAA AND I AM NOT GOING TO REPEAT THOSE. QUICKLY, JUST FOR THE RECORD, I UNDERSTAND THE JUDGE IN THE TENNESSEE CASE IS JUDGE JORDAN, LEON JORDAN. THE COURT: MR. HENN: JUST AN AGENT. RIGHT. CLC DOESN'T BELONG IN THIS CASE. CLC IS

THEY ARE THE LICENSING AGENT FOR A NUMBER OF THEIR -- THE

COLLEGES AND UNIVERSITIES AS WELL AS THE NCAA.

CLAIMS THAT HAVE BEEN ASSERTED AGAINST CLC ARE JUST THE CIVIL CONSPIRACY COUNT AND THE UNJUST ENRICHMENT COUNT. OUR UNJUST ENRICHMENT DEFENSE IS THE SAME AS THE OTHERS, WHICH IS THEY HAVE PLEADED THAT A CONTRACT COVERS THE SAME SUBJECT MATTER AND THUS THERE CAN'T BE A SEPARATE UNJUST ENRICHMENT CLAIM -THE COURT: THEY PLEAD IN THE ALTERNATIVE AND THEY

SAY IT'S A QUESTION OF FACT AS TO WHETHER YOU ARE AN AGENT FOR THIS POINT. MR. HENN: WELL, I THINK IF YOU LOOK AT THE WAY THE

COMPLAINT IS PLEADED, THEY PLEAD THAT WE ARE AN AGENT. THE COURT: FOR EVERYTHING. MR. HENN: ARM OF THE NCAA. WELL, THEY SAY THAT WE ARE THE LICENSING FOR SOME PURPOSES, BUT NOT NECESSARILY

THEY SAY THAT AT THE TIME THAT WE ENGAGED IN

THE ACTS IN THE COMPLAINT, WE REPRESENTED THE NCAA, WHICH IS

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THE CALIFORNIA CIVIL CODE DEFINES AN AGENT AS ONE WHO REPRESENTS ANOTHER. SO THE COMPLAINT EXPRESSLY SAYS THAT.

IT SAYS THAT AT THE TIME WE WERE NEGOTIATING THE LICENSE, CLC WAS DIRECTED BY NCAA. IF WE WERE NOT THEIR AGENT,

I AM NOT SURE HOW WE COULD HAVE BEEN DIRECTED BY THEM. SO, IF YOU TAKE THE COMPLAINT AT ITS FACE VALUE, THEY PLEADED THAT CLC WAS AN AGENT. AGENT WOULD DO. IT DID EVERYTHING THAT AN

THERE'S NO ALLEGATION IN THE COMPLAINT, FOR

EXAMPLE, THAT THE CLC -- THAT CLC WASN'T AN AGENT AT ANY TIME DURING THE ACTIVITIES. THE COURT: CONTRARY. MR. HENN: THE COURT: MR. HENN: BUT -ANYWAY, GO AHEAD. SO THEIR POINT IS, THEY SAY IT IS A I DON'T THINK THEY HAVE TO ALLEGE TO THE

QUESTION OF FACT, BUT THE CASE LAW, EVEREST INVESTMENTS, FOR EXAMPLE, SAID THAT WHEN THE COMPLAINT PLEADS THE ELEMENTS OF AGENCY, THE PLAINTIFF CAN'T GO BACK LATER AND SORT OF DISTANCE ITSELF FROM THOSE PLEADINGS AND SAY WELL, IT'S A QUESTION OF FACT. YOU MIGHT NOT BE AN AGENT, EVEN THOUGH I'VE SAID YOU ARE

AN AGENT. AND IN THAT CASE, THE EVEREST INVESTMENT CASE, THE COURT SPECIFICALLY SAID THAT WHEN -- THEY GRANTED A MOTION TO DISMISS IN THAT CASE WHERE THERE WAS AN ALLEGATION OF AGENCY. SO, WHERE THERE ARE THE ALLEGATION HERE, IT CAN BE DECIDED ON A

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MOTION TO DISMISS. IN THE TROOST CASE, WHICH WE CITE, THE COURT SAID THAT WHERE THE PLEADINGS ARE CLEAR, AND I THINK THE LANGUAGE WAS SOMETHING THAT THEY ARE SUSCEPTIBLE OF BUT A SINGLE INFERENCE, IT'S NOT A QUESTION OF FACT. THE COURT CAN ACTUALLY

SAY, YES, YOU ARE PLEADING THEY ARE AN AGENT, THEREFORE, THE AGENT IMMUNITY DEFENSE APPLIES. IN THIS INSTANCE, NO AMOUNT OF DISCOVERY WOULD CHANGE THE FACT THAT CLC IS AN AGENT. THE COURT: MR. CAREY: OKAY. THAT'S WHAT THEY ARE.

DID YOU WANT TO RESPOND?

THANK YOU, YOUR HONOR, ROB CAREY.

YOUR HONOR, THERE CLEARLY IS A TREMENDOUS MULTIFACETED EFFORT GOING ON HERE, BUT THE EFFORT IS TO MAKE THIS GAME AS REALISTIC AS POSSIBLE. UNTRANSFORMATIVE AS THEY CAN BE. IT'S TO BE AS

SO IT'S MULTIFACETED AND THE

MULTIFACET IS SAY OVER A PHOTO OR A FILM, OR THAT THEY HAVE ADDED TO ONE PRONG OF THE GAME. THERE'S TWO PRONGS. THERE'S THE BIOGRAPHIES WITH

THE PLAYERS ON THERE WITH ALL OF THEIR PERSONAL INFORMATION AND THEN THERE'S LITTLE GAME AVATAR. AND WHAT THEY HAVE DONE IS

THEY MADE LITTLE GAME AVATAR ACT JUST LIKE THE REAL LIFE COUNTERPART WOULD ACT. THEY'VE MADE IT HAVE THE SAME PLAYING SO THE MULTIFACET GOING ON

ABILITY, THE SAME CHARACTERISTICS.

HERE IS THEY HAVE ADDED THOSE THINGS THAT DON'T EXIST IN FILM AND SNAPSHOTS.

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THE COURT:

WHAT ABOUT THE FILM OF THE LIFE OF

RUDOLPH VALENTINO THAT IS ATTEMPTED TO BE MADE AS REALISTIC AS RUDOLPH VALENTINO'S LIFE AND TIMES? MR. CAREY: EXCEPT THAT THE PLAINTIFFS IN THAT CASE

ARGUED THAT IT WAS AN INACCURATE FALSE DEPICTION OF A LIFE STORY THAT'S NOT HIS. SO IT CLEARLY TRANSFORMED HIS LIFE TO

SOMETHING THEY OBJECTED TO. BUT IF I UNDERSTAND THEIR POINT CORRECTLY, IF YOU BACK THIS THREE STOOGES OUT AND MADE THEM DOLLS IN A FILM SETTING THAT WAS ONE OF THEIR FILMS, THAT WOULD BE TRANSFORMATIVE SOMEHOW. THEN IF YOU ADD PLAYERS TO THE GAME WHO ARE PLAYERS THAT PLAY ON THE TEAM WITH MR. KELLER, OR ANY OF THE OTHER 2800 PLAYERS, THAT THAT VOLUME SOMEHOW TRANSFORMS IT FROM A FOOTBALL SETTING THAT IS EXACTLY THE SETTING THEY ARE IN ROUTINELY THAT THEY BUY LICENSING RIGHTS FOR, TO HAVE THE STADIUM, THE LOGOS, THE CHEERLEADERS, EVERYTHING LOOK JUST LIKE IT WAS WHEN THEY PLAYED. I THINK THE HILTON CASE SHOWED THAT'S A PROBLEM. IT'S THE SETTING IN WHICH YOU WOULD FIND THAT PERSON. BUT BEFORE I GO DOWN THAT ROAD, I WOULD LIKE TO

THE COURT: AS A WAITRESS. MR. CAREY:

YOU DON'T REALLY SEE PARIS HILTON ACTING

COULD I SEE HER?

WELL, ON HER SHOW,

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YEAH. SHOW.

NO, NOT REALLY, BUT I HAVE ACTUALLY NEVER SEEN THAT

THE COURT: MR. CAREY:

I HAVEN'T EITHER. THE TWO PROCEDURAL ISSUES I WOULD LIKE

TO ADDRESS REAL BRIEFLY BEFORE I TURN TO THE TRANSFORMATIVE ELEMENTS HERE, ONE IS -- AND THIS APPLIES TO THE ANTISLAPP MOTION TOO. ISSUE. IT'S THE CONTRACT -- IT'S THE ARGUMENT THAT THE EA SPORTS HAS CONTRACTED AWAY ITS FIRST AMENDMENT RIGHTS. BRIEF, IT GETS VERY SHORT SHRIFT ON THEIR BRIEF. IN THE THIS RELATES TO WHAT I THINK IS A VERY IMPORTANT

THEY SAY

PLAINTIFF HAS TO PLEAD THAT THERE WAS AN EXPRESS KNOWING AND VOLUNTARY RELINQUISHMENT OF THE FIRST AMENDMENT RIGHTS. FIRST, THAT'S WRONG. PLEAD. THAT'S NOT WHAT THEY HAVE TO

THEY HAVE TO PLEAD FACTS THAT, WHEN TAKEN IN THE LIGHT

MOST FAVORABLE TO THE PLAINTIFF, COULD LEAD TO AN INFERENCE THAT THERE WAS A WAIVER OF FIRST AMENDMENT RIGHTS. SO THERE'S TWO THINGS. DEFENSE. DEFENSE. ONE, IT IS AFFIRMATIVE IT'S AN AFFIRMATIVE

COMEDY III MAKES THAT CLEAR.

WE DON'T HAVE TO PLEAD ANYTHING IN OUR CLAIM GUESSING AND, FRANKLY, THE

WHAT THEIR AFFIRMATIVE DEFENSES MIGHT BE.

WAIVER IS AN AFFIRMATIVE DEFENSE TO THE FIRST AMENDMENT AFFIRMATIVE DEFENSE. COMPLAINT. SO WE DON'T HAVE TO ADD ANYTHING IN OUR

BUT, MOREOVER, WE ACTUALLY DID. THERE'S AN ALLEGATION IN THE COMPLAINT THAT SAYS

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THERE'S A CONTRACT BETWEEN THESE TWO PARTIES WHERE EA SPORTS RELINQUISHED ITS FIRST AMENDMENT -- WHERE IT RELINQUISHED THE ABILITY TO PUT THE LIKENESSES IN THE GAME. A JURY COULD SAY, YOU KNOW WHAT? THAT IS A FACT THAT

SOPHISTICATED PERSON,

BARGAINING AT ARM'S LENGTH, THEY KNOW WHAT THEY ARE DOING, THEY AGREED TO NOT USE THOSE LIKENESSES. A JURY COULD INFER THAT

THAT'S A WAIVER OF ITS FIRST AMENDMENT RIGHT. WHY THAT'S IMPORTANT IS BECAUSE UNLIKE THIS SITUATION WHERE YOU ARE LOOKING AT THE TRANSFORMATIVENESS OF THE PRODUCT, AND YOU HAVE THE GAME INCORPORATED INTO THE COMPLAINT ESSENTIALLY, THE COURT, AS A MATTER OF LAW, COULD LOOK AT THAT AND SAY, THAT IS SO TRANSFORMATIVE I DON'T NEED TO SEE THE ACTUAL PERSON. I AM GOING TO FIND THAT IS IT COULD DO THAT BECAUSE

TRANSFORMATIVE AS A MATTER OF LAW. THE GAME IS PART OF THE ANALYSIS.

IT CAN'T DO THAT FOR THE WAIVER ARGUMENT ON FIRST AMENDMENT. AND EVEN IF THE GAME IS TRANSFORMATIVE, IF THEY

WAIVE THOSE RIGHTS, THE TRANSFORMATIVE DEFENSE DOESN'T APPLY. SO, FROM A PRACTICAL STANDPOINT, ABSENT SOME INTENSIVE FACT HEARING ON THE AFFIRMATIVE DEFENSE OF WAIVER TO THE AFFIRMATIVE DEFENSE OF THE FIRST AMENDMENT, YOU CAN'T RESOLVE THE MOTION ON THE TRANSFORMATIVENESS OF THE MOTION. SECOND, THE POSITION WE FIND OURSELVES IN IS THEY HAVE INTRODUCED THE GAME BY JUDICIAL NOTICE WHICH WE DID NOT OPPOSE, SO THE COURT HAS A MOTION TO DISMISS WITH THE GAME

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INCLUDED. THEY HAVE NOT -- WE ARE NOT LOOKING AT THE PLAYERS, WHAT THEY ACTUALLY LOOK LIKE, WHAT THEY REALLY LOOK LIKE, WHICH MEANS THAT ANY FINDING OF TRANSFORMATIVENESS WILL HAVE TO COME FROM SOMETHING OTHER THAN THE PLAYERS. BECAUSE OUR COMPLAINT

SAYS THAT THEY ARE EXACT REPLICAS, THEY -- WE INTRODUCE THE GAME INTO IT, WE HAVE NOT HAD A CHANCE TO GO OUT AND LOOK AT WHETHER OR NOT IN REALITY THOSE PLAYERS LOOK EXACTLY LIKE THE PLAYERS. AND THE SAME THING, I SUPPOSE, COULD BE SAID FOR THE CLC LICENSING ARGUMENT THAT THEY ARE INJECTING IN WHAT WE HAVE ALLEGED TO BE EXACTLY WHAT THE STADIUMS LOOK LIKE. SO, IF THERE IS A TRANSFORMATIVE ELEMENT OF IT, IT'S GOING TO HAVE TO COME FROM SOMETHING OTHER THAN THOSE TWO THINGS. IT'S GOING TO HAVE TO COME FROM A STORY LINE OR

SOMETHING OTHER THAN THE STADIUM AND THE PLAYERS, WHICH THERE IS NOTHING. HERE. IT'S AS HILTON SAID, THERE IS NO LARGER STORY

THERE IS NO -- THEY DON'T HAVE A STORY. THIS GAME SHIFTS STATICALLY. IT COMES OUT OF THEIR

MANUFACTURING FACILITY WITH BIOGRAPHIES THAT NEVER CHANGE ANY AT POINT IN THIS GAME, WITH THOUSANDS OF PLAYERS ON THERE, WHERE THEY LIVE, HOW THEY PLAY, WHETHER THEY ARE RIGHT HANDED, WHAT THEIR HAIR LOOKS LIKE. THE COURT: GAMES. THEY SAY THE GAMES AREN'T THE REAL

YOU PLAY THEM AND THE REAL GAME THERE WAS A PASS AND

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HERE THEY CAN MAKE IT A -- SOMETHING ELSE. MR. CAREY: I UNDERSTAND THE ARGUMENT, BUT ALL THAT

IS SAYING IS YOU CAN TAKE A VERY REAL LIFE REPLICA OF SAM KELLER AND MAKE IT DO WHAT YOU WANT. THAT WOULD BE LIKE SAYING IF YOU GAVE A MAGIC MARKER TO THE THREE STOOGES T-SHIRT AND SAID CHANGE IT AFTER WE SELL IT TO YOU, IT SOMEHOW BECOMES TRANSFORMATIVE ON THEIR BEHALF. THEY DIDN'T TRANSFORM IT, THE PLAYERS DO. THE COURT: WHAT ABOUT THE OTHER END OF IT? THE

PUBLIC AFFAIRS REPORTING END, HOW DO YOU DISTINGUISH FANTASY FOOTBALL? MR. CAREY: WELL, FANTASY FOOTBALL, I MEAN THEY ARE

TAKING SAM KELLER'S AND EVERY OTHER PLAYER OUT THERE, THEY ARE TAKING THOSE PLAYERS' STYLE OF PLAY, CHARACTERISTICS AND EMBODYING THEM IN A PLAYER. I THINK THE HILTON CASE SAID IT ON THESE VERY FACTS. THEY SAID, LOOK, IT'S ABOUT REPORTING. THAT STATUTE, THAT THEY

EXEMPTION TO THE STATUTE DEALS WITH REPORTING. SPECIFICALLY EMPHASIZED THE WORD. SO THERE'S NOTHING NEWSWORTHY HERE.

THIS IS

NOTHING -- THERE'S 2800 PLAYERS OR SOMETHING IN EVERY ONE OF THESE GAMES. THEY ARE NOT REPORTING FACTS. THE GAME'S NOT

RELYING ON HOW THAT PERSON PLAYED THE WEEK BEFORE, SOME NEWSWORTHINESS ELEMENT TO HIS PLAY. THIS HAS TO DO WITH -- AND THERE IS

MR. KELLER COULD BE PUT BACK INTO A GAME RIGHT NOW.

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NOTHING TO STOP THEM FROM DOING THAT. THERE'S NOTHING NEWSWORTHY ABOUT THAT.

THEY DO LEGACY GAMES.

BUT I DON'T THINK IT HAS ANYTHING NEAR WHAT IT NEEDS TO SAY IT FALLS UNDER THAT EXEMPTION. IT'S A CONTINUUM. I AGREE WITH THE COURT;

IF YOU WANT TO BE NEWSWORTHY AND OUT THERE

TELLING PEOPLE ABOUT SOMETHING, AN ISSUE OF PUBLIC INTEREST OR A PUBLIC ISSUE, THEN YOU HAVE TO HAVE SOMETHING PRETTY IMPORTANT. THE OTHER CATEGORIES IN THAT STATUTE ARE POLITICAL CAMPAIGNS, NEWS OF THE DAY, THOSE TYPES OF THINGS, NOT JUST SOME FOOTBALL PLAYER WHO PEOPLE KNOW HIS NAME. THAT'S ENOUGH. THE COURT: MR. CAREY: YOU WANT TO TALK ABOUT NCAA AND CLC? YOUR HONOR, I WOULD TURN THAT OVER TO I DON'T THINK

MR. PAYNTER, WHO IS GOING TO ADDRESS THAT. THE COURT: ALL RIGHT. YOUR HONOR, I AM HAPPY TO --

MR. PAYNTER: THE COURT:

I'LL GIVE YOU A COUPLE OF MINUTES. SURE. IF THERE'S ANYTHING IN

MR. PAYNTER:

PARTICULAR YOU WANT ME TO TALK ABOUT, JUST LET ME KNOW. THE COURT: WELL, THE THINGS THAT THEY REFERENCED,

THE -- WHAT YOUR CLAIM IS AS FAR AS NCAA VIOLATING THE INDIANA STATUTE AND CLC'S AGENCY -- THE AGENCY THEORY ON CLC. MR. PAYNTER: SURE, YOUR HONOR. THE NCAA ARGUES THAT

SO, STARTING WITH THE NCAA.

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OUR STATUTORY CLAIM FAILS BECAUSE WE DID NOT -- SAM KELLER -IT DID NOT USE HIS LIKENESS AS THAT TERMS IS UTILIZED IN THE STATUTE, YOUR HONOR. AND THERE ARE BASICALLY TWO PROBLEMS WITH THIS ARGUMENT. FIRST OF ALL, YOUR HONOR, THE NCAA DID USE SAM

KELLER'S LIKENESS WHEN IT RECEIVED COPIES OF THE GAME IN ADVANCE. IT EXPRESSLY APPROVED -THE COURT: COPIES OF WHAT? RECEIVED COPIES OF THE GAME FROM IT EXPRESSLY

MR. PAYNTER:

ELECTRONICS ARTS IN ADVANCE OF ITS PUBLICATION.

APPROVED THE USE OF ITS LIKENESS IN VIOLATION OF EXPRESS DUTIES NOT TO DO SO AND THEN IT PROFITED BY THE USE OF HIS LIKENESS. AND, THUS, CLEARLY, YOUR HONOR, THAT IS A USE AS THAT TERM IS ORDINARILY UNDERSTOOD AND IN FAVOR OF ITS VERY RESTRICTIVE VIEW OF THE VERB "TO USE". ALL THAT NCAA CITES,

YOUR HONOR, IS ONE RUNG OF THE MANY DEFINITIONS IN MERRIAM WEBSTER'S ONLINE DICTIONARY. INCIDENTALLY, THEY CITE THE NOUN EVEN THOUGH IT'S USED IN THE STATUTE AS A VERB. BUT IF YOU LOOK IT UP, YOUR

HONOR, YOU WOULD SEE THAT ONE OF THE OTHER COMMON DEFINITIONS WOULD BE, I AM QUOTING "TO CARRY OUT A PURPOSE OR ACTION BY MEANS OF," WHICH IT OBVIOUSLY WOULD APPLY HERE. HERE, THE PURPOSE OF THE NCAA WAS TO PROFIT OFF NCAA'S STUDENT ATHLETES' NAMES AND LIKENESS JUST IN VIOLATION OF ITS CONTRACTUAL DUTIES WHILE OSTENSIBLY AND HYPOCRITICALLY,

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YOUR HONOR, TO PROMOTE AMATEURISM, AND IT CARRIED OUT THAT PURPOSE BY EXPRESSLY APPROVING EA'S VIDEO GAMES KNOWING FULL WELL, YOUR HONOR, THOSE VIDEO GAMES CONTAINED PLAYER LIKENESSES. SO, FOR THAT REASON, THE NCAA CERTAINLY USED KELLER'S LIKENESS, BUT EVEN IF YOU DID ADOPT THE NCAA'S VERY RESTRICTIVE DEFINITION OF THE VERB "TO USE", YOUR HONOR, AS YOUR HONOR POINTED OUT, WE HAVE ALLEGED THAT IT'S A CO-CONSPIRATOR. AS A CO-CONSPIRATOR, YOUR HONOR, THE NCAA IS

LIABLE FOR ALL THE ACTIONS OF ELECTRONIC ARTS. THE COURT: THEY SAY YOU DIDN'T ALLEGE THAT

ELECTRONIC ARTS VIOLATED THE INDIANA STATUTE. MR. PAYNTER: THEIR ONLY RESPONSE. YOU ARE CORRECT, YOUR HONOR. THAT IS

THEY SAY BECAUSE WE HAVE NOT ACTUALLY

ALLEGED A CAUSE OF ACTION AGAINST ELECTRONIC ARTS UNDER THE INDIANA STATUTE, WE SOMEHOW CANNOT CLAIM THAT THE NCAA CONSPIRED WITH THE EA IN VIOLATION OF THAT STATUTE. YOUR HONOR, WHETHER OR NOT WE ALLEGE A CLAIM UNDER THE INDIANA STATUTE AGAINST ELECTRONIC ARTS, IN FACT, FOR THAT MATTER, YOUR HONOR, WHETHER OR NOT WE SUE ELECTRONIC ARTS AT ALL. THE COURT: YOU DON'T HAVE TO NECESSARILY SUE THEM,

BUT YOU HAVE TO ALLEGE THAT SOMEBODY COMMITTED THE TORT. MR. PAYNTER: THE COURT: YES.

IF THEY ARE RIGHT THAT THEY CAN'T COMMIT

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THE TORT, THEN SOMEBODY ELSE HAS TO BE ABLE TO COMMIT THE TORT BEFORE YOU CAN CONSPIRE WITH ANYONE TO -MR. PAYNTER: THE COURT: CORRECT, YOUR HONOR --

-- HAVE THE TORT COMMITTED. WE

WHY DON'T YOU MOVE ON REAL QUICKLY TO THE CLC. NEED TO MOVE ON TO THE ANTITRUST CASE AS WELL. MR. PAYNTER: SURE, NO PROBLEM.

I THINK IT SEEMS THE THRUST OF THEIR ARGUMENT YOU WERE MOST INTERESTED IN IS THIS AGENT IMMUNITY RULE, YOUR HONOR. FACT. AS YOUR HONOR CORRECTLY IDENTIFIED, IT IS AN ISSUE OF EVEN IF THE CLC WAS THE AGENT OF THE NCAA WHEN IT

LICENSED THE NCAA LOGOS, IT WAS NOT ACTING AS AN AGENT OF THE NCAA WHEN IT AUTHORIZED THE USE OF -- WHEN IT AUTHORIZED THE USE OF PLAYER LIKENESSES, YOUR HONOR, IT WAS ACTING AS A CO-CONSPIRATOR OF THE NCAA. BUT MORE TO THE POINT, YOUR HONOR, THE AGENT IMMUNITY RULE, AND THE CASES ARE CLEAR HERE, NEVER APPLIES, WOULD NOT APPLY IN THIS CASE BECAUSE THE CLC HAD INDEPENDENT DUTIES THAT WERE COMPLETELY SEPARATE AND APART FROM ANY DUTIES OF THE NCAA, YOUR HONOR. THE COURT: WHAT DUTY DID IT HAVE TO THE ATHLETES? IT HAD STATUTORY DUTIES NOT TO

MR. PAYNTER:

MISAPPROPRIATE LIKENESSES, YOUR HONOR. SO IF YOU LOOK AT THE BERG CASE, IT SAYS SPECIFICALLY THAT THE AGENT IMMUNITY RULE NEVER APPLIES WHEN

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THE DEFENDANT VIOLATES A DUTY THAT HE OR SHE INDEPENDENTLY OWES TO THE PLAINTIFF, YOUR HONOR HONOR. SO, FOR EXAMPLE, IF I WENT OUT AND CONSPIRED WITH SOMEONE TO COMMIT BATTERY, YOUR HONOR, IT IS OBVIOUSLY NOT A DEFENSE IN A SUBSEQUENT SUIT BY THE VICTIM IN THIS COURT TO SAY THAT I WAS ONLY ACTING AS AN AGENT OF MY CO-CONSPIRATOR. AND THE REASON IT WOULDN'T BE, YOUR HONOR, IS BECAUSE I HAVE AN INDEPENDENT DUTY NOT TO GO AROUND BATTERING PEOPLE. SIMILARLY, YOUR HONOR, THE CLC HAS AN INDEPENDENT DUTY

THAT IS SEPARATE AND APART FROM ANY DUTIES OF THE NCAA NOT TO GO AROUND STEALING PLAYER LIKENESSES. SO IT'S NOT SURPRISINGLY, YOUR HONOR, THAT CLC DOES NOT CITE A SINGLE CASE THAT APPLIED THE AGENT IMMUNITY RULE IN A SITUATION WHERE THE AGENT OWED AN INDEPENDENT DUTY ITSELF. THE COURT: OKAY.

WHO WANTED TO TALK ABOUT ANTITRUST? MR. CAREY: MAY I SAY ONE THING FOR THE RECORD?

THE TIGER WOODS PICTURE, AND I DON'T KNOW IF MY VERSION IS INCORRECT OR IF THIS IS ACCURATE, THE VERSION I HAVE SEEN ACTUALLY HAS A MANTLE ON THE BOTTOM WITH SOME WRITING ON IT. SO I DON'T KNOW IF THAT IS ACCURATE OR NOT ACCURATE, BUT

TO CLIP THAT OFF IS -- I THINK NEEDS TO BE CORRECTED. MR. CURTNER: CURTNER FOR THE NCAA. GOOD AFTERNOON, YOUR HONOR, GREG

I WILL TAKE THE LEAD ON THE ANTITRUST

ISSUES IN O'BANNON AND NEWSOME, AND I WILL TREAT THEM TOGETHER.

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I THINK THE ISSUES ARE ESSENTIALLY THE SAME EVEN THOUGH THE NEWSOME COMPLAINT IS MUCH MORE STRIPPED DOWN THAN THE O'BANNON COMPLAINT. THERE ARE SOME THINGS IN THE O'BANNON COMPLAINT

THAT WE THINK HELP US, BUT ESSENTIALLY THE NEWSOME COMPLAINT IS DEFICIENT ON THE SAME GROUNDS. AND ESSENTIALLY, THAT IS, THEY ARE LACKING IN ANY COHERENT ANTITRUST THEORY OF WHO, WHAT, WHEN, WHERE -- WHEN OR WHY, AND DO NOT MEET THE STANDARDS OF TWOMBLY OR IQBAL. I WANT TO TALK SPEAK ABOUT ARTICLE III STANDING, ANTITRUST STANDING, ANTITRUST INJURY, THE CONSPIRACY ALLEGATIONS, THEIR WAY -- THE PLAINTIFFS ATTEMPT TO CLAIM THAT IT IS A PER SE VIOLATION AND, THEREFORE, THEY DON'T NEED TO MEET SOME OF THESE REQUIREMENTS, AND THE ISSUE OF WHETHER THEY HAVE TO BE A MARKET PARTICIPANT OR NOT, THE ISSUE OF WHETHER THEY HAVE TO PLEAD IRRELEVANT MARKET OR NOT, AND FINALLY THE STATUTE OF LIMITATIONS. I THINK AS TO EACH AND EVERY ONE OF THOSE, THE COMPLAINTS THAT WE HAVE ARE DEFICIENT, AND AS TO ALL OR NEARLY ALL OF THOSE, THEY CANNOT REMEDY IT THROUGH AMENDMENT. FIRST OF ALL, THERE IS NO ALLEGATION THAT EITHER OF THEM DURING THE TIME THAT THEY WERE STUDENT ATHLETES, AND THIS GOES BACK TO '90S, THEY GRADUATED MOST RECENTLY IN 1995, THAT EITHER OF THEM EVEN SIGNED THESE FORMS THAT THEY COULD NOW COMPLAIN ABOUT. THE COURT: WE WILL HEAR WHAT THEY HAVE TO SAY ABOUT

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THAT. MR. CURTNER: THAT THEY DID SO WILLINGLY OR

UNWILLINGLY, THAT THEY MAY HAVE SIGNED SOME DIFFERENT FORMS THAT BEAR ON THESE ISSUES. IN FACT, WE HAVE REASON TO BELIEVE

THAT SOME SCHOOLS AND SOME CONFERENCES HAVE THEIR OWN SETS OF RELEASES THAT BEAR ON THESE ISSUES. THERE IS NO ALLEGATION THAT SINCE THEY GRADUATED THEY HAVE BEEN PROHIBITED, MUCH LESS EXCLUDED FROM DOING ANYTHING. SO FOR TEN YEARS THEY HAVE BEEN OUT OF SCHOOL, AT

LEAST, AND THEY HAVE BEEN FREE TO COMPETE IN ANY MARKET THEY FELT LIKE COMPETING IN. THERE IS NO ALLEGATION THAT THEY EVER TRIED TO SELL THEIR IMAGE, THAT THEY EVER TRIED TO MAKE A VIDEO OF THEMSELVES, THAT THEY EVER TOOK A PICTURE THAT THEIR MOTHER TOOK WHILE THEY WERE PLAYING FOOTBALL OR BASKETBALL AND TRIED TO HAVE IT BLOWN UP AND FRAMED AND SOLD THROUGH WHATEVER CHANNEL OF DISTRIBUTION THEY WANTED TO, THERE IS NO ALLEGATION THEY DID ANYTHING LIKE THAT. THE COURT: SO DO YOU VIEW THE THINGS THAT THEY

SIGNED, OR SOME PEOPLE MAY HAVE SIGNED, AND WHEN THEY GRADUATE FROM COLLEGE, AFTER THAT, THEY ARE NOT BOUND BY IT ANYMORE? MR. CURTNER: IT DEPENDS ON WHICH THING WE ARE

TALKING ABOUT, YOUR HONOR. THE COURT: ANY OF THEM. DO THEY ALL END ON

GRADUATION OR IS THERE SOME THAT YOU CONTEND REALLY DO CONTINUE

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TO APPLY? MR. CURTNER: THE FORM O8-3A AND 09-3A, BY THEIR

TERMS, GIVE THE NCAA A LIMITED RIGHT, AND IT'S LIMITED TO USE CERTAIN LIKENESSES THAT WERE CREATED DURING THE TIME PERIOD THAT THE PERSON WAS A STUDENT ATHLETE FOR THE LIMITED PURPOSE OF PROMOTING NCAA CHAMPIONSHIPS AND GENERAL NCAA EVENTS. THE COURT: ONLY UP UNTIL THE TIME THEY GRADUATE? NO, THAT CONTINUES. THAT IS A

MR. CURTNER: CONTINUED -THE COURT:

SO IF YOU WANT TO GIVE IT AWAY OR SELL

IT, THEN I SUPPOSE IT WOULD BE HARDER FOR THEM TO SELL IT IF YOU HAVE ALREADY SOLD IT. MR. CURTNER: DOING SO. THERE IS NO PROHIBITION AGAINST THEM

THEY CAN TAKE THE SAME LIKENESS, THE SAME PHOTOGRAPH

THAT WAS TAKEN AT THE SAME TIME, THE SAME VIDEO, THEY CAN MAKE NEW VIDEOS AND THEY CAN DO THE SAME. THERE IS NO -- THERE'S A DIFFERENCE, I THINK, YOUR HONOR. I THINK IT'S REALLY AN IMPORTANT ONE. BETWEEN AN

INTELLECTUAL PROPERTY RIGHT, THAT ESSENTIALLY OUR FIX AT THE TIME OF THE PERFORMANCE, OR AT THE TIME OF A PHOTOGRAPH, OR AT THE TIME OF THE GAME, OR AT THE TIME OF A BROADCAST, AND WHO OWNS THAT AT THAT TIME. AND, ESSENTIALLY, THAT OWNERSHIP IS

FIXED AT THAT POINT IN TIME. AND IF CBS TELEVISION BROADCASTS A BASKETBALL GAME OR THE CONTRACT PARTNER TO THE PAC-10 CONFERENCE BROADCASTS A

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FOOTBALL GAME, THEY HAVE A COPYRIGHT. RIGHTS AS OF THAT MOMENT IN TIME. THAT IS ENTIRELY DIFFERENT. FROM EXCLUSION.

THEY HAVE SOME OWNERSHIP

OWNERSHIP IS DIFFERENT AND THE

EXCLUSION IS AN ANTITRUST CONCEPT.

FACT THAT SOMEBODY IS OUT THERE WITH A PROPERTY RIGHT AND THERE IS ALL KINDS OF PROPERTY RIGHTS FLOATING AROUND HERE. THERE IS

PROPERTY RIGHTS REGARDING HATS AND T-SHIRTS AND JERSEYS AND VIDEO GAMES AND ANTIQUE FOOTAGE AND ALL KINDS OF THINGS. PEOPLE HAVE RIGHTS IN THOSE VARIOUS PRODUCTS THAT ARE IN THE CHAIN OF DISTRIBUTION THAT ARE IN COMMERCE. NCAA DOESN'T

CONTROL THEM, BUT THERE ARE A BUNCH OF THOSE RIGHTS. THAT IS A COMPLETELY DIFFERENT CONCEPT THAN THE CONCEPT OF EXCLUDING SOMEBODY FROM PARTICIPATING IN THAT CHAIN OF COMMERCE. THEY CAN GO OUT AND CREATE WHATEVER THEY WANT.

THEY WERE FREE AS SOON AS THEY STOPPED BEING A STUDENT ATHLETE TO ENGAGE IN COMMERCIAL ACTIVITY. AND THEY COULD HAVE TAKEN

ANYTHING THAT THEY COULD GET THEIR HANDS ON AND TRIED TO SELL IT. THEY COULD HAVE CREATED NEW WORKS, THEY COULD HAVE TAKEN

COPIES OF OLD WORKS SO LONG AS THEY COULD DO SO LEGALLY AND TRY. AND NOBODY HAS PREVENTED THEM. THERE IS NOTHING

PREVENTING THEM FROM COMPETING IN THIS SO-CALLED MASS MARKET, WHICH IS ACTUALLY A BUNCH OF DIFFERENT MARKETS. SO THERE IS A BIG DIFFERENCE BETWEEN THE FACT THAT SOME OF THESE RIGHTS ARE OWNED AND SOME OF THESE RIGHTS ARE NOT OWNED. AND THE PLAINTIFFS ARE FREE TO PURSUE COMMERCIAL

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ACTIVITIES AFTER THEY CEASE BEING A STUDENT ATHLETE WITH REGARD TO THOSE RIGHTS. AND WE KNOW THAT SOME OF THE PLAINTIFFS, SOME PEOPLE IN THESE GROUPS DO, AND THEY PLEAD IN THEIR COMPLAINT, IN THE O'BANNON COMPLAINT, IN PARAGRAPHS 133 THROUGH 145 THAT SUCH THINGS GO ON, AND THEY PLEAD THIS. THE COURT: THIS IS A --

YOU DON'T THINK THERE'S ANYTHING NEW

THAT HAS HAPPENED RECENTLY THAT HAS ALLOWED THAT THAT WASN'T ALLOWED BEFORE? MR. CURTNER: NOTHING NEW. (COUNSEL DISPLAYS OBJECT.) THIS HAS BEEN ON THE MARKET FOR SOME PERIOD OF TIME. THERE'S AT LEAST SIX OF THEM. VARIOUS TEAMS. THEY'RE SHOWN ON THE BACK FROM THEY GET A THIS THIS HAS ALWAYS BEEN ALLOWED. THERE'S

THEY HAVE THE COLLEGE UNIFORMS.

LICENSE FOR THE USE OF THAT FROM THE COLLEGE THROUGH CLC. COMES FROM THE NFL PLAYERS ASSOCIATION.

THAT'S APPARENTLY WHO

CLAIMS THEY HAVE THESE RIGHTS, AND THERE IS NO LICENSE FROM THE NCAA HERE. NONE. NCAA IS NOT INVOLVED IN THIS IN ANY WAY. IT

DOESN'T HAVE ANY RIGHTS THAT ARE BEING ASSERTED AND, ACTUALLY, THEY LEAVE THE NIKE SWOOSH OFF OF THE UNIFORM, TOO. DIDN'T HAVE TO GET A LICENSE FROM NIKE. THE COURT: ME THAN IT IS. ARE YOU SAYING THAT IS A COLLEGE PERSON OR YOU MAY THINK THIS IS MORE MEANINGFUL TO SO THEY

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SOMETHING? (LAUGHTER.) MR. CURTNER: BEING EXCLUDED. THE COURT: BECAUSE THAT'S A COLLEGE PERSON? THIS WAS A COLLEGE PERSON WHO IS NOW A AND HE OBVIOUSLY LET ME TRY. THIS SHOWS THAT NO ONE IS

MR. CURTNER:

PRO PLAYER, BUT HE'S IN HIS COLLEGE UNIFORM.

IS ABLE TO COMPETE IN THIS BROAD MARKET AND IS SELLING THESE THINGS. WE BOUGHT IT AT A STORE FOR $16.95. AND THERE'S ALWAYS BEEN OPPORTUNITIES FOR FORMER COLLEGE PLAYERS TO DO VARIOUS COMMERCIAL THINGS AS A RESULT OF THEIR NOTORIETY. SOME OF THEM COACH. SOME OF THEM TEACH.

SOME OF THEM DO LEARNING VIDEOS THAT THEY SELL TO TEACH YOUNG PEOPLE HOW TO PLAY THOSE SPORTS. THINGS THEY CAN DO. THERE'S NOTHING THAT STOPS MR. O'BANNON FROM TAKING A PHOTO THAT HIS FATHER TOOK WHEN HE WAS A PLAYER, BLOWING IT UP AND MAKING IT GLOSSY, PUTTING A FRAME AROUND IT, SIGNING HIS NAME TO IT, WRITING HIS AUTOBIOGRAPHY, AND SELLING IT. STOPPING HIM FROM DOING THAT. AND THE IMPORTANT POINT IS THERE IS NO ALLEGATION THAT HE EVER DID THOSE THINGS, OR TRIED TO DO THOSE THINGS, WAS READY TO DO THOSE THINGS OR, MOST IMPORTANTLY, HAS BEEN PROHIBITED BY ANYBODY FROM DOING ANY OF THOSE THINGS. THAT DEFEATS HIS ARTICLE III STANDING. THAT DEFEATS NOTHING THERE IS A WIDE VARIETY OF

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ANTITRUST STANDING, AND THAT MEANS THAT HE CANNOT COMPLY WITH THE RULE THAT IS CLEAR IN THE NINTH CIRCUIT THAT HE HAS TO BE A MARKET PARTICIPANT OR BE READY TO BE A MARKET PARTICIPANT. THEY TRIED TO DISTINGUISH -THE COURT: WHAT ABOUT THE GROUP BOYCOTT THEORY? THEY TRY TO GET AROUND THAT AND

MR. CURTNER:

SEVERAL OTHER THINGS BY SAYING THAT THIS IS A GROUP BOYCOTT. IT'S NOT A GROUP BOYCOTT. THE NCAA IS NOT IN A HORIZONTAL RELATIONSHIP WITH ANY OF THESE FOLKS. WE'RE NOT COMPETITORS WITH ANY OF THESE

OTHER DEFENDANTS, AND THE RELATIONSHIP BETWEEN THE NCAA AND CLC AND THE RELATIONSHIP BETWEEN CLC AND ELECTRONIC ARTS IS VERTICAL. ONE SUPPLIES THE OTHER TO THE OTHER. A