Вы находитесь на странице: 1из 30

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
26
27
28
Michael P. Lehmann (Cal. BarNo. 77152)
Arthur N. Bailey, Jr. (Cal. Bar No. 248460)
HAUSFELD LLP
44 Montgomery St., 34th Floor
San Francisco, CA 94104
Telephone: (415) 633-1908
Facsimile: (415) 358-4980
Email: mlehrnann@hausfeldllp.com
abailey@hausfeldllp.com
Michael D. Hausfeld (pro hac vice)
Hilary K. Scherrer (Cal. Bar No. 209451)
Sathya S. Gosselin (Cal. Bar No. 269171)
HAUSFELD LLP
1700 K Street, NW, Suite 650
Washington, DC 20006
Telephone: (202) 540-7200
Facsimile: (202) 540-7201
Email: mhausfeld@hausfeldllp.com
hscherrer@hausfeldllp.com
sgosselin@hausfeldllp.com
Plaintiffs' Class Counsel with Principal
Responsibility for the Antitrust Claims
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
IN RE NCAA STUDENT -ATHLETE
NAME & LIKENESS LICENSING
LITIGATION
This document relates to:
ANTITRUST PLAINTIFFS' ACTIONS
Case No. 4:09-cv-1967 CW
ANTITRUST PLAINTIFFS' COMBINED
OPPOSITION TO NCAA'S MOTION FOR
SUMMARY JUDGMENT AND REPLY IN
SUPPORT OF MOTION FOR SUMMARY
JUDGMENT
Judge: Honorable Claudia Wilken
Date: February 20, 2014
Time: 2:00 p.m.
Courtroom: 2, 4th Floor
[SUBMITTED PARTIALLY UNDER SEAL]
4:09-cv-1967 CW (NC)
ANTITRUST PLAINTIFFS' COMBINED OPPOSITION TO
NCAA'S MOTION FOR SUMMARY JUDGMENT AND REPLY
ISO OF MOTION FOR SUMMARY JUDGMENT
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page1 of 30
TABLE OF CONTENTS
PLAINTIFFS' OPPOSITION TO NCAA'S SUMMARY JUDGMENT
MOTION ......... ...... ... ..... ... ..... ..... ..... ....... ...... ...... ... .................... ......... ....... ... .. .... ............... . 1
Live Broadcast Claims ... .... .. .... .... .. ..... .................................. .. .. .. .... .... ..... ....... .... .... ........ .. ... 1
Injunctive Relief Regarding Video games ....... ... ... ... .. ..... ... ..... ............................. ............... .3
Claims oflndividual Class Representatives .................. .. ... .. ........ ........... ..... ............ .... ... .... 4
THE NCAA'S PROCOMPETITIVE JUSTIFICATIONS ARE DEFICIENT . ... .. .. .. .4
Alleged Goal Of Amateurism and Consumer Demand ....... .. .... .. ... .. .. .. ...... ..... .. .. ............. ... 7
Alleged Competitive Balance ....... .. ........ .. ............ .. ........................ .... ... .. .. .. ...... .. ........... .. . 1 0
Alleged Integration of Athletics and Education ................... ......... .. ...... .. .. .. .. .. .. .. ..... .. ... .. ... 12
Alleged Support for Women's And Other Men's Sport ....................... .. ......... .. ............... .l4
Allegedly Increased Output ...... .. .. ... ... .... .. .. .......... ................. ......... ........ .... .. ...... .. .... .... .... . 15
Less Restrictive Alternatives ......... ...... ... .... .... .. .. ... ... .. ... ... .... .... ............... ....... .. .... ........... .. 15
ANTITRUST PLAfNTIFFS' COMBfNED OPPOSITION TO
4:09-cv-1967 CW (NC) - 1 - NCAA'S MOTION FOR SUMMARY JUDGMENT AND REPLY
ISO MOTION FOR SUMMARY JUDGMENT
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page2 of 30
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
26
27
28
TABLE OF AUTHORITIES
Page(s)
CASES
Agnew v. NCAA,
683 F.3d 328 (7th Cir. 2012) .. ... .. .. ..... ..... .. ... ................... ... .... .. ..... ... .. ..... ...... ... .. ..... ...... .... .... .. .. 5
Banks v. NCAA,
977 F .2d 1081 (7th Cir. 1992) .. .. ......... .... .. ... ....... ...... ..... ..... ............... ..... ........ .......... .... .. .... .. ... . 9
Bolger v. Youngs Drug Prods. Corp.,
463 U.S. 60 (1983) .... .... ... ............. ..... .. ... .. .. ... ........... ............... ........................ ... .... ... .... ... ... .... .. 1
Chicago Prof'/ Sports Ltd. P'ship v. NBA,
754 F. Supp. 1336 (N.D. Ill. 1991) ....... ... .... ...... ... ........... .. ... .... .. .. ............ .... ...... ... ..... ............ ... 6
Church of Scientology of Cal. v. United States,
506 u.s. 9 (1992) ..................... ... ............. ..... ... ..... ...... .. ... ........ ........ .. ...... .... ....... ......... ....... ... 3, 4
Deutscher Tennis Bund v. ATP Tour, Inc. ,
610 F.3d 820 (3d Cir. 2010) ................ ..... ........... ........................................... ... ...... ... .. ........ ... .. . 5
Dryer v. NFL,
689 F. Supp. 2d 1113 (D. Minn. 2010) ... ..... ........ .... .. .... ... .. .. .. .. ......... ...... .... ...... .. ..................... .2
Friends ofthe Earth, Inc. v. Laidlaw Envtl. Servs. (I'OC), Inc.,
528 u.s. 167 (2000) .... ......... .. ... .. ................ .... ..... .. .. .. ... ..... ..... ... .. ... .. .. .... .. ............. .... .... ......... ... 4
Graphic Prods. Distribs. v. Itek Corp.,
717 F.2d 1560 (11th Cir. 1983) ........ ....... ... ............ .. ............ ............. .... .... .. ... ..... .... ........ ..... ... .. 6
Hunt v. City of Los Angeles,
638 F.3d 703 (9th Cir. 2011) .... .. .. .. ... .. ....... ... .... .. ........ .. ....... ... .. ... ........ ..... .... ... ........... ....... ... .. .. !
In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig.,
No. MDL 150 AWT, 1992 WL 133093 (C.D. Cal. Apr. 30, 1992) ... ........ .... ... .... ............ ..... .. .!
In re NCAA Student-Athlete Name & Likeness Licensing Litig.,
No. C 09-1967 CW, 2013 WL 5778233 (N.D. Cal. Oct. 25, 2013) .............. ..... .... .. .. ..... passim
In re NCAA Walk-On Football Players Antitrust Litig.,
398 F. Supp. 2d 1144 (W.D. Wash. 2005) ......... .. ............................ .. .. ...... .. .. .. .... ...................... 9
Lawv. NCAA,
134 F.3d 1010 (lOth Cir. 1998) .. ... .. .. .... .. ..................... .. ....... ......... ... .. .. ... .. .... ..... ...... 5, 6, 12, 13
Lawv. NCAA,
902 F. Supp. 1394 (D. Kan. 1995) .. .. ..... .. .......... ..... .. ........ .. ... ... ...... ... ...... .. ... .. ... .... .. .. .. .............. 9
ANTITRUST PLAINTIFFS' COMBINED OPPOSITION TO
4:09-cv-1967 CW (NC) - 11 - NCAA'S MOTION FOR SUMMARY JUDGMENT AND REPLY
ISO MOTION FOR SUMMARY JUDGMENT
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page3 of 30
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
26
NCAA v. Board of Regents ofUniv. of Okla.,
468 u.s. 85 (1984) .............................................. .... .. .................... ............ ........... ....... .. ... 5, 6, 15
0 'Bannon v. NCAA,
Nos. C 09-1967 CW, C 09-3329 CW, C 09-4882 CW, 2010 WL 445190 (N.D. Cal.
Feb. 8, 2010) .. .... .... .. .... .. ....... .. .. ....... ... .. ... ... ........ .. .... .. ................ .. ................. ... ...... .. ........ ........ 4
Oracle US.A., Inc. v. SAP AG,
264 F.R.D. 541 (N.D. Cal. 2009) .... .. ... .... ........ .. .......... ............. ..... .. .... ...... ........... ..... .............. .. 5
Polygram Holding, Inc. v. FTC,
416 F.3d 29 (D.C. Cir. 2005) ... .. .... ... .. .. .... ........ .. ..... .. .. ... .. ....... ..... ........ .. ........ .. ..... .. .......... .. .. 5, 6
Post Newsweek Stations-Connecticut, Inc. v. Travelers Ins. Co.,
510 F. Supp. 81 (D. Conn. 1981) ........................................... .. .... .... .. .. ...... ........ ........ .... .... .. .. .... 1
Russell v. NCAA,
No. C 11-4938 CW, 2012 WL 1747496 (N.D. Cal. May 16, 2012) .... .. .. ....... .. .. .... .. ........... .... .4
Soremekun v. Thrifty Payless, Inc. ,
509 F.3d 978 (9th Cir. 2007) ... ..... .. .. ............................ .. ................ ................. .. .. .. ... ............... .. 6
Sorrell v. IMS Health Inc.,
131 S. Ct. 2653 (2011) ......... .. .. ..... ... ... .......... .. .... ....... ..... .. .. .. .... .. .... ......... .. ... ............................. 1
Sunbelt Television, Inc. v. Jones Intercable, Inc.,
795 F. Supp. 333 (C.D. Cal. 1992) ...... ............... .. .. .. ... ... .. ..................... .. .. .. .... .......... ...... ... ...... .!
Tel/ado v. Time-Life Books, Inc.,
643 F. Supp. 904 (D.N.J. 1986) .... .. ... .... ................... ... .. ..... .... ..... .. .. .. .. ......... .. ........... .. .. .. ........ .. 1
United States v. Brown Univ.,
5 F.3d 658 (3d Cir. 1993) .... .... .. .. ... ........... ..... .. .. ..... .... .. ... .. ... .. .. .... .... ... ... ....... ....... .. ..... .. ...... ..... . 6
United States v. Laerdal Mfg. Corp.,
73 F.3d 852 (9th Cir. 1995) ................. .. .. .. ................... ... .. ...... ....... ............... .... ........ ... ........ ... .. 4
United States v. W T Grant Co.,
345 u.s. 629 (1953) ........................... .... ... ..... .. .... .. ............................ ... ........... ....... ............ ... .. .. 4
Villiarimo v. Aloha Island Air, Inc.,
281 F.3d 1054 (9th Cir. 2002) .... ..... ................ .... .. .. ........... .............. ... .. ... ... ... ... .... ....... ...... .. .. ... 6
Wisconsin Interscholastic Athletic Ass'n v. Gannett Co., Inc.,
658 F.3d 614 (7th Cir. 2011) .. .. ... ........ .... .. .. .. .. .. .. .. ..................... ............... ..................... ...... .... . 1
Yeti by Molly, Ltd v. Deckers Outdoor Corp.,
27 259 F.3d 1101 (9th Cir. 2001) .................. .. ... ....... ... .. .. .... .... ... ... ..... ..... ...... ..... ... ..... .. .... ... ..... ... .. 5
28
4:09-cv-1967 CW (NC) - ll1 -
ANTITRUST PLAINTIFFS' COMBINED OPPOSITION TO
NCAA'S MOTION FOR SUMMARY JUDGMENT AND REPLY
ISO MOTION FOR SUMMARY JUDGMENT
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page4 of 30
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
26
27
28
Zacchini v. Scripps-Howard Broad. Co.,
433 U.S. 562 (1977) .................. .......... ............. .. .... .... ...... .. ..... .... .. ... ............ ............... ..... ... .. ... .. 1
4:09-cv-1967 CW (NC) - lV-
ANTITRUST PLAINTIFFS' COMBINED OPPOSITION TO
NCAA'S MOTION FOR SUMMARY JUDGMENT AND REPLY
ISO MOTION FOR SUMMARY JUDGMENT
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page5 of 30
GLOSSARY OF ABBREVIATIONS
Atlantic Coast Division I athletic conference
Antitrust Plaintiffs
"Memorandum of Points And Authorities In Support of Motion By
Antitrust Plaintiffs for Summary Judgment" (Nov. 15, 2013) (Dkt.
No. 898-1)
Big East Division I athletic conference
Big Ten Division I athletic conference
Big 12 Division I athletic conference
John Cummins & Kirsten Hextrum, "The Management of
Intercollegiate Athletics at UC Berkeley: Turning Points &
Consequences" (Nov. 2013) (presented by the Center for Studies in
Higher Education at the University of California at Berkeley),
submitted as Exhibit 9 to the accompanying Supplemental
Declaration of Hilary K. Scherrer
Andrew Zimbalist & Allan Sack, "Thoughts on Amateurism, The
O'Bannon Case And The Viability of College Sport" (2013), issued
by the Drake Group, submitted as Exhibit 19 to the accompanying
Supplemental Declaration of Hilary K. Scherrer
"NCAA's Memorandum of Points And Authorities In Support of
Motion for Summary Judgment; Opposition to Antitrust Plaintiffs'
Summary Judgment Motion" (Dec. 12, 2013) (Dkt. No. 926)
"Rebuttal Expert Report of J. Michael Dennis, Ph.D" (Nov. 5,
2013) (Dkt. No. 925-16)
"Reply Expert Report of Daniel A. Rascher" (Nov. 5, 2013),
submitted as Exhibit 8 to the accompanying Supplemental
Declaration of Hilary K. Scherrer
"Declaration of Edwin S. Desser," submitted as Exhibit 2 to the
accompanying Supplemental Declaration of Hilary K. Scherrer
Defendant Electronic Arts, Inc.
Exhibits to the accompanying Supplemental Declaration of Hilary
K. Scherrer
NCAA Division I Football Bowl Subdivision
ANTITRUST PLAINTIFFS' COMBINED OPPOSITION TO
- V- NCAA'S MOTION FOR SUMMARY JUDGMENT AND REPLY
ISO MOTION FOR SUMMARY JUDGMENT
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page6 of 30
1
FCS NCAA Division I Football Championship Subdivision
2
GIAs Grants-in-aid
3
KCR Knight Commission on Intercollegiate Athletics, "College Sports
4
1 01 : A Primer on Money, Athletics and Higher Education in the
21st Century" (2009), submitted as Exhibit 3 to the accompanying
5
Supplemental Declaration of Hilary K. Scherrer
6
MLB Major League Baseball
7
NCAA Defendant National Collegiate Athletic Association
8
NIL Name, image and likeness
9
10
NR "Expert Report on Liability Issues of Roger G. Noll"
(Sept. 25, 2013) (Dkt. No. 898-15)
11
NRR "Reply Report on Liability Issues of Roger G. Noll" (Nov. 5, 2013)
12
(Dkt. No. 898-1 0)
13
Pac-12 Pacific 12 Division I athletic conference
14
PD "Declaration of Hal Poret in Support of Antitrust Plaintiffs'
15
Opposition to Defendant's Motion for Summary Judgment,"
submitted as Exhibit 4 to the accompanying Supplemental
16 Declaration of Hilary K. Scherrer
17
PRR "Rebuttal Expert Report ofNeal H. Pilson" (Nov. 5, 2013) (Dkt.
18
No. 932-3) (filed under seal)
19
RD Transcript of Deposition of Daniel Rubinfeld (Oct. 11, 2013)
20 RoP Right of Publicity
21
RoR Rule of Reason
22
RR "Expert Report of Daniel R. Rubinfeld Regarding Merits" (Sept.
23
25, 2013) (Dkt. No. 925-8)
24
RRR "Expert Rebuttal Report of DanielL. Rubinfeld Regarding Merits"
25
(Nov. 5, 2013) (Dkt. No. 898-5) (filed under seal)
26
RSR "Declaration of DanielL. Rubinfeld" (Dec. 12, 2013)
(Dkt. No. 925-6)
27
SAs Student-athletes
28
4:09-cv-1967 CW (NC) - Vl-
ANTITRUST PLAINTIFFS' COMBINED OPPOSITION TO
NCAA'S MOTION FOR SUMMARY JUDGMENT AND REPLY
ISO MOTION FOR SUMMARY JUDGMENT
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page7 of 30
1
SCIR
2
3
4
SEC
5
SR
6
7
TBR
8
TFCAR
9
10
11
UCB
12 WD
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4:09-cv-1967 CW (NC)
The Presidential Task Force On The Future Of Division I
Intercollegiate Athletics, "The Second Century Imperatives:
Presidential Leadership--Institutional Accountability" (Oct. 2006)
(Dkt. No. 898-36)
Southeastern Conference
"Expert Report of Ellen J. Staurowsky, Ed.D" (Sept. 25, 2013)
(Dkt. No. 898-20)
"Expert Report of Taylor Branch" (Nov. 7, 2013) (Dkt. No. 898-
28)
"Final Report of the NCAA Task Force on Commercial Activity in
Division I Intercollegiate Athletics--Addendum Supplement No. 6"
(Jan. 2009) (Dkt. No. 898-34)
University of California at Berkeley
"Declaration of Mary Willingham," submitted as Exhibit 5 to the
accompanying Supplemental Declaration of Hilary K. Scherrer
- Vll-
ANTITRUST PLAINTIFFS' COMBINED OPPOSITION TO
NCAA'S MOTION FOR SUMMARY JUDGMENT AND REPLY
ISO MOTION FOR SUMMARY JUDGMENT
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page8 of 30
1 I.
2
PLAINTIFFS' OPPOSITION TO NCAA'S SUMMARY JUDGMENT MOTION.
Live Broadcast Claims. The NCAA seeks summary judgment as to live broadcasts on
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the premise that the First Amendment bars the APs' antitrust claims. DM at 3-4. This argument,
however, ignores the fact that the APs are not seeking to enjoin any broadcasts. They are merely
seeking to enjoin rules that prohibit payment to current and former SAs for the use of their NILs,
which is in no way barred by the First Amendment.
1
Moreover, the NCAA cites no caselaw
supporting any such absolute bar. The case law is clear that even if enforcement of the Sherman
Act's prohibitions impose incidental restrictions on speech, they are permissible in order to
preserve a competitive marketplace.
2
The caselaw also makes it clear that the depiction of an
entire performance, even a sports performance, is not protected speech, even though the
performance may be of public interest.
3
Thus, the NCAA has failed to demonstrate, factually or
legally, that the issuance of the requested injunction would infringe its First Amendment rights.
Contrary to the NCAA's assertion, game broadcasts are commercial speech. Determining
what is commercial speech depends upon considering a complex of factors, including the use of
advertisements, the economic motivations involved and the reference to a product; the presence
of all three support strongly a finding of commercial speech.
4
The NCAA has avoided this inquiry
and, instead makes arguments based on cases that are either inapposite or apply a different legal
standard from that used in this Circuit and followed by this Court.
5
These arguments must fail.
1
Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 576 (1977) ("Zacchini") (holding the
First Amendment did not protect a television station because the plaintiff"does not seek to enjoin
the broadcast of his performance; he simply wants to be paid for it").
2
Sorrell v. IMS Health Inc., 131 S. Ct. 2653,2665 (2011) (quoting Giboney v. Empire Storage &
Ice Co., 336 U.S. 490, 502 (1949)); Sunbelt Television, Inc. v. Jones Intercable, Inc., 795 F. Supp.
333, 336 (C.D. Cal. 1992); In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust
Litig., No. MDL 150 AWT, 1992 WL 133093, at *1 (C.D. Cal. Apr. 30, 1992).
3
Zacchini, 433 U.S. at 574-76; Wisconsin Interscholastic Athletic Ass'n v. Gannett Co., 658 F.3d
614, 624 (7th Cir. 2011); see also Tellado v. Time-Life Books, Inc., 643 F. Supp. 904, 914 (D.N.J.
1986). Indeed, the presentation of an athletic event has been found to be "on the periphery of
protected speech . .. as opposed, for example, to political speech, which is at the core of first
amendment protection." Post Newsweek Stations-Connecticut, Inc. v. Travelers Ins. Co., 510 F.
Supp. 81 86 (0. Conn. 1981); see generally DSD at
4
Bolger v. Youngs Drug Prods. orp. 463 U.S. 60, 66 (1983); Hunt v. City of Los Angeles, 638
F.3d 703, 715 (9th Cir. 2011) (relying on three-part analysis). The Court has accepted this
approach and noted the fact-specific nature of the inquiry. In re NCAA Student-Athlete Name &
Likeness Licensing Litig., No. C 09-1967 CW, 2013 WL 5778233, at *8-9 (N.D. Cal. Oct. 25,
2013) ("NCAA").
5
As noted in Dryer v. NFL, 689 F. Supp. 2d 1113, 1117-18 (D. Minn. 2010), which this Court
ANTITRusf
4:09-cv-1967 CW (NC) - 1 - NCAA'S MOTION FOR SUMMARY JUDGMENT AND REPLY
ISO MOTION FOR SUMMARY JUDGMENT
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page9 of 30
1 As stated by former NCAA President Myles Brand ("Brand"),




As explained by Brand,


The NCAA also seeks to capitalize on increased commercial
8 activity corresponding to the expansion of sports media.

Neil Pilson, the
11 NCAA's expert, . PRR at 33; see also DSD at
12 CSHER at 6-8.
13 This commercialization infects live game broadcasts at all levels. Games are festooned
14 with the names and logos of corporate sponsors and stadia in which games are telecast bear
15 corporate names, all of which are captured by the cameras during broadcasts. DSD at
16 30. Advertisements appear on sideline banners, physically painted on football fields and
17 basketball courts, and digitally embedded into broadcasts. !d. at Corporate names and logos
18 appear digitally onscreen throughout broadcasts, and game commentators often acknowledge and
19 thank corporate sponsors. Jd. Additionally, SAs are often human billboards bearing corporate
20 logos on their uniforms.
7
Conference games and championships are also televised pursuant to
21
22
23
24
25
26
27
28
Footnote continued from previous page
has cited approvingly the California and federal cases on which the NCAA principally relies
(DM at 4-5) did not follow this type of analysis and in several instances, involved facts that were
in the public domain. Here, by contrast it is undisputed that telecasts of the NCAA s Division I
men's football and basketball games are not in the public domain they are licensed exclusively to
specific networks under strict terms; and their copyrights are jealously guarded by Defendant and
its members. Exs. 22-24.
6
The NCAA's Task Force on commercialism in Division I Athletics in 2009 (many members of
which are among its current declarants), and its Task Force on the future of Division I athletics in
2006 have also made the point that Division I footbalL and basketball are highly commercialized.
TFCAR at 3, 8; SCIR at 11, 32, 35, 37; Dkt. No. 922-13 at 2-3, 6-7; RR at 119. The
Knight Commission on Intercollegiate Athletics has made the same point. KCR at 6-8, 21-22.
7
As examples, in 2010, Reisman trophy winner Cam Newton had 15 Under Armour logos
plastered all over his uniform and the restaurant chain Chick-fil-A had its logo displayed
4:09-cv-1967 CW (NC) - 2-
Footnote continued on next page
ANTITRUST PLAINTIFFS' COMBINED OPPOSITION TO
NCAA' S MOTION FOR SUMMARY JUDGMENT AND REPLY
ISO MOTION FOR SUMMARY JUDGMENT
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page10 of 30
1 hugely lucrative exclusive broadcasting contracts, something hardly consistent with the notion
2 that these are news events in the public domain. DSD at

The NCAA has also negotiated
3 deals with corporate "partners," often involving preferred product placement rights.
9
Dr. Richard
4 Southall ("Southall") has conducted detailed analyses of samplings from the telecasts of the 2006
5 and 2011 March Madness tourneys and 2009 BCS. Exs. 10-12. The NCAA or BCS have policies
6 on what advertisements can be aired, both NCAA public service announcements and corporate
7 sponsor advertisements are televised during the games, and often messages introducing the latter
8 are made while SAs are on the field. See Ex. 12 at 692; Ex. 10 at 7; DSD at As Southall
9 noted in connection with 2009 BCS games, "[t]his increased integration of a network's
10 entertainment properties into a sport's broadcasts is consistent with the melding of sports and
11 entertainment."
10
Ex. 11 at 168. Thus, the live broadcasts at issue are indisputably "used" for
12 commercial purposes.
13 The commercial nature of the broadcasts is also demonstrated by the fact that every
14 participant in preparing and presenting the games for presentation is paid, except the SAs. None
15 of those payments are alleged to impair or impinge upon First Amendment rights. Neither would
16 payment to SAs have such an effect.
17 Injunctive Relief Regarding Videogames. In July of2013, the NCAA announced it
18 would not renew its videogame license with EA, citing "the current business climate and costs of
19 litigation." Ex. 13. This fact does not moot the request for injunctive relief as to such products
20 that the NCAA now advances. DM at 5-6. A case is moot only if is "impossible for the court to
21 grant 'any effectual relief whatever' to a prevailing party." Church ofScientology of Cal. v.
22
23
24
25
26
27
28
Footnote continued from previous page
prominently in kickoff games for four teams. Exs. 6-7. Contracts of 66 schools obtained through
open records requests evidence the regular practice of having SAs display the logos of corporate
sponsors on their uniforms during games. DSD at see also SR at 31.
8
Some conferences even have their own television networks. DSD at
9
The NCAA also has a special corporate sponsor program consisting of two specific tiers of
marketing and promotional rights--Corporate Champions and Corporate Partners. DSD at
42. Sponsors get to use NCAA logos and have media placement, merchandising and on-site event
o<Pportunities in exchange for promoting its programs.
1
The SAs who play in these sports have been called "highly specialized entertainers." DGR at 5;
see also RD at 18.
4:09-cv-1967 CW (NC) - 3-
ANTITRUST PLAINTIFFS' COMBINED OPPOSITION TO
NCAA'S MOTION FOR SUMMARY JUDGMENT AND REPLY
ISO MOTION FOR SUMMARY JUDGMENT
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page11 of 30
1 United States, 506 U.S. 9, 12 (1992). Even the possibility of only a partial remedy is "sufficient to
2 prevent [a] case from being moot." !d. at 13. Voluntary cessation of challenged conduct normally
3 does not deprive a federal court of the power to determine the legality of a practice. Friends of the
4 Earth, Inc. v. Laidlaw Envtl. Servs. (FOC), Inc., 528 U.S. 167, 189 (2000) ("FoE'). Otherwise, a
5 defendant would be "free to return to his old ways." United States v. WT Grant Co. , 345 U.S.
6 629, 632 (1953). A defendant relying on cessation bears a "heavy burden" of showing the
7 curtailed conduct will not recur. FoE, 528 U.S. at 189. The NCAA has not met that burden. Its
8 renunciation was equivocally based on current conditions and it continues to insist it did no
9 wrong. An "intransigent insistence on its own blamelessness" undermines a defendant's assertion
10 ofmootness. United States v. Laerdal Mfg. Corp., 73 F.3d 852, 856 (9th Cir. 1995). Thus, the
11 NCAA cannot prevail on this prong of its summary judgment motion.
12 Claims of Individual Class Representatives. As to individual claims of class
13 representatives, the NCAA relies on three arguments. DM at 6-7. First, it contends that it is
14 undisputed that there is no restraint after SAs graduate. It is incorrect; this point is disputed.
11
15 Second, the NCAA contends that the damage claims of certain class representatives are barred on
16 limitations grounds. But that argument in no way precludes claims for injunctive relief; this Court
17 has held that the continuing violation doctrine applies to this case.
12
Third, the NCAA argues that
18 state laws governing RoP rights bar the claims of many class representatives. But this Court has
19 held that the restraint at issue is national in character and the only way claims could be precluded
20 would be if they were barred in every state. NCAA, 2013 WL 5778233, at *7. The NCAA has not
21 made such a showing.
13
22 II.
23
THE NCAA'S PROCOMPETITIVE JUSTIFICATIONS ARE DEFICIENT.
The NCAA argues that a quick look RoR analysis is inappropriate here and that its
24
25
26
27
28
11
APM at 3. See Ex. 26 (BEC Commissioner Val Ackerman criticizing the NCAA's uses of SAs'
NIL at issue in this litigation).
12
O'Bannon v. NCAA, Nos. C 09-1967 CW, C 09-3329 CW, C 09-4882 CW, 2010 WL 445190,
at *5-6 (N.D. Cal. Feb. 8, 2010); Russell v. NCAA, No. C 11-4938 CW, 2012 WL 1747496, at *4
IT'1.D. Cal. May 16, 2012).
3
For example, it relies on Cal. Civil Code 3344(d), but that provision only precludes penal
damages under that code section for use ofNIL in a sports broadcast; it says nothing about
injunctive relief and its remedies are not intended to displace other RoP claims. !d. 3344(g).
4:09-cv-1967 CW (NC) - 4-
ANTITRUST PLAINTIFFS' COMBINED OPPOSITION TO
NCAA'S MOTION FOR SUMMARY JUDGMENT AND REPLY
ISO MOTION FOR SUMMARY JUDGMENT
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page12 of 30
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
26
27
28
procompetitive justifications should be presented at trial. DM at 8. Alternatively, it contends that
a quick look should be decided in its favor. !d. at 7. In support of its effort to demonstrate
procompetitive justifications for the challenged restraint, the NCAA relies on: (a) the declarations
of22 conference or university personnel;
14
(b) five declarations by its own employees; (c) expert
merits reports already discussed in the APM; (d) a new declaration (the RSR) by Daniel
Rubinfeld ("Rubinfeld") that consists of more of the same argument but no new facts; and (e) the
survey discussed in the ORR that APs have moved to exclude and have argued should receive no
weight (APM at 11-13). These arguments are without merit and the proffered evidence suffers
from several overarching defects that cause it to have little or no value.
To begin with, a quick look raises a question of law suitable for determination by this
Court. Deutscher Tennis Bundv. ATP Tour, Inc., 610 F.3d 820,833 (3d Cir. 2010). This Court
will decide the propriety of injunctive relief, and, given the voluminous record before it, it has all
the tools to do so. Law v. NCAA, 134 F.3d 1010, 1012 (lOth Cir. 1998) ("Law") (affirming
summary judgment for plaintiff under quick look RoR). The NCAA, unlike its own expert (RR at
~ ~ 2 9 - 3 0 argues that it is a presumptively permissible joint venture, not a cartel. That contention
is meritless; schools recruit SAs separately, so they are not engaging in joint venture activity.
15
In
any event, the quick look has been applied to joint venture activity.
16
The restraint is a naked
agreement by the NCAA and its members to suppress compensation to SAs for use of their NILs
to zero; consequently, it is an appropriate candidate for quick look treatmentY
The APs agree that the core question is whether the alleged precompetitive justifications
for the restraint make it essential to the existence of the product at issue. DM at 9. The mere fact
14
The identities of these declarants were not revealed until after discovery closed and their
declarations should be stricken under Fed. R. Civ. P. 37(c)(1). Yeti by Molly, Ltd v. Deckers
Outdoor Corp., 259 F.3d 1101, 1106-07 (9th Cir. 2001); Oracle U.S.A., Inc. v. SAP AG, 264
F.R.D. 541, 544-45 (N.D. Cal. 2009).
15
NCAA v. Board of Regents ofUniv. of Okla., 468 U.S. 85, 113-14 (1984) ("BoR"); Law, 134
F.3d at 1018.
16
See, e.g., Polygram Holding, Inc. v. FTC, 416 F.3d 29,37 (D.C. Cir. 2005) ("Polygram").
17
See, e.g., BoR, 468 U.S. at 109; Agnew v. NCAA, 683 F.3d 328,337 (7th Cir. 2012); Law, 134
F.3d at 1020. The NCAA also argues that the challenged restraint is presumptively lawful
because it supports amateurism. DM at 8. This argument is completely belied by the record and is
derived from a reading of BoR that this Court does not deem persuasive. NCAA, 2013 WL
5778233, at *6 & n.6.
4:09-cv-1967 CW (NC) - 5-
ANTITRUST PLAINTIFFS' COMBINED OPPOSITION TO
NCAA'S MOTION FOR SUMMARY JUDGMENT AND REPLY
ISO MOTION FOR SUMMARY JUDGMENT
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page13 of 30
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
26
27
28
that a restraint may be profitable or may maximize revenue or may ensure ticket sales or may
protect the value of a brand or a contract is insufficient.
18
Moreover, "merely offering a rationale
for a ... restraint will not suffice; the record must support a finding that the restraint ... does indeed
have a pro-competitive effect." Graphic Prods. Distribs. v. Itek Corp., 717 F.2d 1560, 1576 (11th
Cir. 1983).
The NCAA's claimed procompetitive justifications are factually insufficient to satisfy its
burden. Genuine issues of fact sufficient to overcome a motion for summary judgment are not
created by '"uncorroborated and self-serving' testimony."
19
Likewise, "[c]onclusory speculative
testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat
summary judgment."
20
Here, most of the NCAA' s factual declarants make speculative predictions
on what might happen if the Court were to enter the requested injunction. That is not sufficient to
meet the NCAA's burden under Fed. R. Civ. P. 56(c)(4). Its argument that the Court accepted
such predictions in connection with denying certification of a damage class (DM at 25) ignores
the procedural context of the present motion and the "heavy burden" that the NCAA must satisfy
to support its procompetitive justifications. APM at 6.
The further problem with these declarations is most of them assume that the entry of an
injunction would promptly lead to a 50/50 split of revenue for live broadcasts.
21
However, the
18
See, e.g., BoA, 468 U.S. at 116-17; Polygram, 416 F.3d at 38; Law, 134 F.3d at 1023; Chicago
Prof'! Sports Ltd. P'ship v. NBA, 754 F. Supp. 1336, 1359 (N.D. Ill. 1991), aff'd, 961 F.2d 667
(7th Cir. 1992). Nor will justifications serving some broad societal goals suffice to justify a
restraint. APM at 7 n.6. The case of United States v. Brown Univ., 5 F.3d 658 (3d Cir. 1993) is
distinguishable. There, unlike here, there was uncertainty as to whether the challenged restraint
had any price effects and the court noted the absence of any profit-maximizing purpose. !d. at
672,674.
19
Villiarimo v. Aloha Island Air, Inc. , 281 F.3d 1054, 1061 (9th Cir. 2002) (citing Kennedy v.
Acfplause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996)).
2
Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing Nelson v. Pima
Cmty. Coli., 83 F.3d 1075, 1081-82 (9th Cir. 1996)).
21
See Dkt. Nos. 921-2 at 921-4 at 14; 921-4 at 17; 921-5 at 921-8 at
16-17; 921-9 at 922-10 at 922-1 at 922-5 at 922-6 at 922-8 at 922-9
at 922-10 at 922-11 at 925-7 at It should be noted t hat declarants from the
University ofTexas and Wake Forest University have said that even if an inj unction were
entered, their schools might still not pay anything or anything signifi cant to SAs for use of NIL.
Dkt. Nos. 921-11 at 922-6 at Defendants' experts made similar arguments in opposing
certification of a damage class. Many of the factual declarants also assume that the APs are
seeking pay to play or are engaging in a broad attack on the NCAA's amateurism rules. See, e.g.,
Dkt. Nos. 921-2 at 921-4 at 921-8 at 921-11 at 922-5 at 922-9 at That is not
the case. APM at 1; NRR at 17-19.
4:09-cv-1967 CW (NC) - 6 -
ANTITRUST PLAINTIFFS' COMBINED OPPOSITION TO
NCAA'S MOTION FOR SUMMARY JUDGMENT AND REPLY
ISO MOTION FOR SUMMARY JUDGMENT
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page14 of 30
1 APs are asking merely for a prohibitory injunction precluding the NCAA and its members from
2 agreeing to depress to zero compensation for use of SAs' NILs; they are not asking for a
3 mandatory injunction commanding that the NCAA and its members must negotiate group
4 licenses that split broadcast revenues equally with SAs. Thus, the NCAA's declarations are based
5 largely on a false premise and should be accorded little weight. The NCAA's brief and
6 Rubinfeld' s latest report repeat this error. DM at 18-19; RSR at 15.
7 Alleged Goal Of Amateurism and Consumer Demand. The NCAA contends that its
8 amateurism rules are essential to the existence of consumer demand, relying on scattered
9 consumer survey evidence, the primary example of which is the survey in the DRR to which the
10 APs have objected. DM at 12-17. This showing fails because: (a) intercollegiate sports is no
11 longer amateur in nature, as the NCAA itself has admitted; (b) there is no evidence that the
12 challenged restraint is essential for the existence of consumer demand; and (c) the NCAA's
13 survey evidence on this issue is defective, misses the relevant issue, and does not accurately
14 reflect real-world consumer conduct.
15 The NCAA manual does not define the term "amateur." SR at 44. For its first fifty years,
16 the NCAA's amateur rules were often disregarded; its enactment of a "Sanity Code" in 1948 that
17 prohibited pay for performance was a dismal failure and the code was withdrawn in 1951.TBR at
18 11-13; NR at 122. When Walter Byers became Executive Director, a renewed emphasis on SAs
19 as amateurs occurred, partly to ensure that they received no workers' compensation benefits. SR
20 at 25-26; CSHER at 7.
21 This concept of amateurism became harder to justify at the level of Division I men's
22 basketball and football, given the increased commercialization described above. By the decade of
23 the 2000s, Brand began replacing the notion of the "amateur model" with the "collegiate model,"
24 which was supposedly distinguishable from the model of professional sports. SR at 44. By 2009,
25 the NCAA's Commercialism Task Force mentioned above concluded that amateurism meant that
26 SAs could not financially benefit from their participation in intercollegiate athletics beyond their
27 GIAs and other forms of "approved support" allowed by NCAA regulations. TFCAR at 2. It
28 acknowledged that the rise of commercialism had "burdened the conscience" of those who
4:09-cv-1967 CW (NC) - 7-
ANTITRUST PLAINTIFFS' COMBINED OPPOSITION TO
NCAA'S MOTION FOR SUMMARY JUDGMENT AND REPLY
ISO MOTION FOR SUMMARY JUDGMENT
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page15 of 30
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
26
27
28
distinguished amateurism from monetary concerns, but noted that the NCAA's definition of
amateurism has "almost nothing to say about compensation and everything to say about
motivation." !d. at 4. Thus, the Task Force concluded that "while participation is to be an
avocation for students, college sports as an enterprise is a professional undertaking for everyone
else. Furthermore, the generating of revenues must be guided by the same business principles as
any commercial entity." !d. Or, as Brand put it in a paradigm of circular reasoning, SAs are not
paid because they are amateurs and are amateurs because they are not paid. SR at 45. The NCAA
adheres to this position, even though Division I men's football and basketball are conceded to
look like and be promoted much like their professional counterparts. See TFCAR at 8; Dkt. No.
922-13; Ex. 1 at 3.
Of course, what constitutes "pay" is up to the discretion of the NCAA and its members.
SR at 46. SAs who participate in BCS games get $950 in "participation awards" while SAs
playing in the non-BCS Belk Bowl, to use one example, get a free watch and a prepaid debit card
that they can use at Belk stores. DRRR at ~ 1 1 1 Players in BCS bowls also get numerous "gifts"
such as televisions, electronic tablets, Apple iPads, mountain bikes, recliners and so on. !d. at
~ 1 1 2 ; DGR at 5.
22
All three military academies in Division I pay salaries to SAs and their games
are highly popular. DRRR at 1 1 3 Staurowsky goes into great detail about the types of payments
the NCAA already gives to SAs that are somehow not perceived to compromise its conception of
amateurism. SR at 47-52.
These are the forms of compensation that are openly permitted. The fact is that despite the
NCAA's pronouncements of amateurism, many colleges and universities also give secret
compensation to SAs in violation of the NCAA's rules. Every other month seems to bring news
of a new scandal involving secret payments to SAs. See CSHER at 22 ("[t]he pressure to win,
without any checks-and-balances, creates a campus culture tolerant of athletic teams disobeying
NCAA regulation"). This is a long tradition. In the 1980s, at least 57% of 106 NCAA Division I-
A football teams violated the limited compensation rules and from 1952 to 1985, the NCAA
22
See Ex. 14 (hyperlink to video of University of Missouri players responding to a parade of gifts
for their appearance in the 2013 Cotton Bowl).
4:09-cv-I967 CW (NC) - 8 -
ANTITRUST PLAINTIFFS' COMBINED OPPOSITION TO
NCAA'S MOTION FOR SUMMARY JUDGMENT AND REPLY
ISO MOTION FOR SUMMARY JUDGMENT
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page16 of 30
1 imposed sanctions on 30 of 33 Division I national championship basketball programs for
2 violating its amateurism rules. Ex. 15 at 1313. "As one commentator has noted, 'it would be naive
3 to suppose that simply the pretense of maintaining the amateur ideal is essential to continuing the
4 current system."' /d. at 1312 (emphasis in original).
5 In light of all of the foregoing, the Drake Group, an independent entity concerned with
6 academic integrity in collegiate sports, concluded in its 2013 report on this litigation, "[i]n short,
7 amateurism in intercollegiate athletics is whatever the NCAA says it is. The NCAA maintains its
8 own, idiosyncratic, changing, frequently arbitrary, and often illogical definition of amateurism.
9 NCAA restrictions on college athletes'free participation in the lucrative market for their images,
10 likenesses and names are obviously not necessary to uphold the principles of amateurism, which
11 are constantly changing to meet industry needs." DGR at 7 (emphases added). Or, as John
12 Marinatto put it more succinctly when he resigned as Commissioner of the BEC in July of2012,
13 "[ c ]learly, the collegiate model is dead." Ex. 16.
14 The NCAA's consumer survey evidence does not support a contrary view for several
15 reasons. First, the surveys measure the wrong market. The challenged restraint operates primarily
16 in the market for the acquisition of SAs' labor services; the consumers in that market are colleges,
17 not viewers of Division I men's football or basketball.
23
So, any analysis of the procompetitive
18 effects ofthe challenged restraint should focus on such colleges, which the NCAA's surveys
19 make no attempt to do. Second, the survey evidence is riddled with flaws that should cause it to
20 be given little weight.
24
21 Finally, the survey results are counterintuitive and not reflective of what people actually
22 do. Fans of Division I football and basketball are unlikely to abandon those sports because SAs
23 are paid for use of their NILs. If such fans were disgusted by the commercialism of"amateur"
24 sports, they would logically have ceased watching them long ago in the face of coaches being
25 paid millions of dollars, the rampant commercialization of game telecasts, the repeated scandals
26
23
See, e.g., Banks v. NCAA, 977 F.2d 1081, 1098 (7th Cir. 1992) (Flaum, J. , concurring in part
and dissenting in part); In re NCAA Walk-On Football Players Antitrust Litig., 398 F. Supp. 2d
27 1144, 1151 (W.D. Wash. 2005); Law v. NCAA, 902 F. Supp. 1394, 1406 (D. Kan. 1995), aff'd,
134 F.3d 1010 (lOth Cir. 1998); Ex. 17 at 366-68 (2005 law review article).
28
24
See APM at 9-12; PD at ~ ~ 1 3 3 3 .
4:09-cv-1967 CW (NC) - 9-
ANTITRUST PLAINTIFFS' COMBINED OPPOSITION TO
NCAA'S MOTION FOR SUMMARY JUDGMENT AND REPLY
ISO MOTION FOR SUMMARY JUDGMENT
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page17 of 30
1 of SAs being paid under the table by colleges and universities, and the television contracts that
2 match what is done with professional sports leagues. See NR at 144; DRRR at Indeed,
3

,




Yet, despite these perceptions, consumer demand for Division I football and basketball has
11 not decreased over the last decade. Similarly, as Plaintiffs' expert Dr. Daniel Rascher has noted,
12 fans still flocked to watch Ohio State University play in the 2010 Sugar Bowl despite the fact that
13 six of its SAs had been fined for profiting from the sale of championship memorabilia and the
14 2013 game in which Texas A&M's Johnny Manziel was suspended for one half for allegedly
15 commercializing his NIL finished 61% above the average ESPN rating for comparable telecasts.
16 DRRR at see also CSEHR at 8 ("the public, surfeited with scandals of all kinds, has
17 become inured to intercollegiate athletic scandals while enjoying more and more the
18 entertainment value of the big-time sports "). Likewise, after free agency was introduced in MLB
19 in 1976, numerous consumer surveys appeared that said fans deemed higher player salaries to be
20 excessive or problematic, yet MLB revenues continued to climb steeply. DRRR at Put
21 simply, surveys about what consumers might do if SAs were paid are of.little value in
22 determining what those individuals would actually do. !d. at
23 Alleged Competitive Balance. The NCAA contends that the challenged restraint is
24 essential for promoting the goal of competitive balance across teams and conferences, citing the
25 opinions of its various declarants. DM at 17-20. It offers no meaningful support for this
26 contention; it is instead undermined by the statements of the NCAA's own executives and by the
27 uncontested facts summarized by Plaintiffs' expert Dr. Roger Noll ("Noll") and others.
28 NCAA President Mark Emmert ("Emmert") has said publicly that some colleges have
4:09-cv-1967 CW (NC) - 10-
ANTITRUST PLAINTIFFS' COMBINED OPPOSITION TO
NCAA'S MOTION FOR SUMMARY JUDGMENT AND REPLY
ISO MOTION FOR SUMMARY JUDGMENT
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page18 of 30
1 "huge" or "stunning" competitive advantages that have persisted over four decades. NR at 137.
2 Bob Bowlsby, Commissioner ofthe Big 12 and one ofthe NCAA's own declarants, has said
3 (contrary to his declaration crafted for this lawsuit) that '"[t]he concept of competitive equity
4 through rules management is largely a mirage. It hasn't worked at any level.'" ld; see also APM
5 at 17 (citing other examples). An August 2011 report on the NCAA's financial sustainability
6 shows wide disparities in revenues and expenses among Division I basketball and football teams
7 and concluded that "there is already significant disparity in competition," with teams from the six
8 major FBS conferences "dominating competition on the field." Dkt. No. 898-30 at 4. The Knight
9 Commission has made a similar point in a 2009 report. KCR at 8, 12, 16-17. The NCAA's expert,
10 Rubinfeld, does not respond to this evidence.
11 Other economists are in accord about existing competitive imbalance. Dkts. No. 898-31 &
12 32. Noll (NR at 139-40, NRR at 40, 49) relied on an in:fluential2007 economic article from Dr.
13 Jim Peach ("Peach") (on which Rubinfeld has relied as well (RR at 42 n. 158)), who showed that
14 from 1950-2005, only 13 teams accounted for more than 50% ofthe top eight college football
15 teams identified by Associated Press. Dkt. No. 898-32 at 5. For college basketball during the
16 same period, only 13 teams dominated the rankings. ld. at 6. As Peach concluded, "[i]n brief, the
17 distribution at the top in four major NCAA men's sports is highly concentrated and there is no
18 apparent trend that competitive balance in these sports is improving as a result of NCAA imposed
19 regulations." ld. at 7 (emphasis added). Dr. E. Woodrow Eckard made a similar point in his 1998
20 economic article on the NCAA cartel and competitive balance in college football, saying that the
21 NCAA's amateurism rules have "produced more stability (less 'churning') in conference standing
22 and national rankings." ld. at 34 (emphases added).
23 Rubinfeld in his initial merits report invoked competitive balance with no citations to
24 economic studies. RR at 40-41. In his latest report, he states his disagreement with the many
25 economists who have found no relationship between the restraint and competitive balance, but
26 offers no supporting facts for his opinion. RSR at ~ 2 2 3 8 . As the Drake Group has noted in its
27 report on this litigation," the NCAA's policies do not promote competitive balance and sharing
28 licensing income with its current (via trust funds) and former athletes would be completely
4:09cv-1967 CW (NC) - 11 -
ANTITRUST PLAINTIFFS' COMBINED OPPOSITION TO
NCAA'S MOTION FOR SUMMARY JUDGMENT AND REPLY
ISO MOTION FOR SUMMARY JUDGMENT
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page19 of 30
1 compatible with maintaining the current financial standing of intercollegiate athletic programs,
2 provided the NCAA took appropriate measures to reduce waste and inefficiency." DGR at 7
3 (emphases added).
4 In sum, the challenged restraint has perpetuated a competitive imbalance. What the
5 NCAA and its declarants are saying is that they fear that an injunction would "exacerbate
6 competitive imbalance," but that is not a valid procompetitive justification. Law, 134 F.3d at
7 1024.
8 Alleged Integration of Athletics and Education. Nor is there any showing that the
9 challenged restraint is essential to integrating education and athletics. The NCAA relies primarily
10 on self-serving statements by its declarants. DM at 20-22. It has made no such showing, however,
11 and it ignores the uncontested facts set out in the NCAA's own documents and in Staurowsky's
12 declaration that show the challenged restraint has had no beneficial effect on integration.
13 The NCAA' s own SCIR expressed concerns about athletic directors "becom[ing] more
14 and more isolated from the issues of the academy," the "educational value of athletic
15 participation" playing a "secondary role to the win-loss column," the "erosion of the bond
16 between athletics and academics," and the "islandization of athletics." SCIR at 32, 34. The report
17 candidly admitted that rules supporting a level playing field "may not match the ideals of student-
IS athlete well-being" and that SAs can be "disadvantaged" by the "concern for competitive
19 balance" !d. at 52. According to the NCAA's own statistics, FBS athletes spent 43.3 hours weekly
20 on athletic activities in season. SR at 26. The similar number for men's basketball players was
21 39.6 hours. !d. As Emmert has conceded, these hours represent SAs "working on their sport." !d.
22 at 30.
25
This work is to the obvious detriment of their academic performance.
23 As noted in a Duke University strategic report cited by Staurowsky, the timing of games is
24 dictated by television executives; for example, basketball players often play weekday games at 9
25 p.m., so the "potential impact on academic work is obvious." !d. at 31. Shane Battier, an NBA
26 player, testified before Congress in 2011 that the demands on his time and attention as a college
27
25
This level ofwork is in violation ofNCAA Bylaw 2.14, which contemplates that an SA will
spend 20 hours weekly on sports activities during a season, so the NCAA and its members utilize
28 a series of creative schemes to circumvent the rule. SD at 27-29.
4:09-cv-1967 CW (NC) - 12-
ANTITRUST PLAINTIFFS' COMBINED OPPOSITION TO
NCAA'S MOTION FOR SUMMARY JUDGMENT AND REPLY
ISO MOTION FOR SUMMARY JUDGMENT
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page20 of 30
1 player far exceeded those he faces as a professional athlete .... " !d.; see also Ex. 25 at 11.
2 These types of demands have adverse consequences for the education of SAs. One tutor at
3 the University of Georgia described football players slumped over and catching a rare opportunity
4 for sleep; "'[t]utors had a hard time motivating their students."' SR at 32. Another SA said that a
5 common perception was that athletic directors could care less if an SA got a degree. !d.
6 This "football first" mentality has also led to widespread cheating and corruption of
7 academics at major colleges and universities. For example, at Oklahoma State University between
8 2000 and 2011, "coursework was routinely done for players by tutors or university staff members,
9 players were given answers to exams before they were scheduled to be taken, players received
10 grades they had done little if any work to earn, and players were directed into easy courses and
11 majors." !d. An internal investigation at the University ofNorth Carolina-Chapel Hill revealed
12 similar fraud, including a tutor writing papers for football players and widespread improprieties in
13 the Department of African-American Studies, such as "unauthorized grade changes, forged
14 faculty signatures on grade roles, and courses conducted with limited or no class time . ... " !d. at
15 42; see also WD at ,-r,-rS-16. SAs are often "clustered" into courses that may well result in
16 devaluations oftheir college degrees. SR at 42-44.
17 The effect of these types of practices is that Division I men's football and basketball
18 players do not have the graduation rates of other SAs or of non-athletes. !d. at 35. Looking at the
19 federal graduation rates for those who enrolled as first-year students in 2005, the figures for the
20 general student body, FBS players and men's basketball players were 63%, 59% and 49%,
21 respectively. !d. The NCAA's own staff concluded in 2012 that "[i]n the sports of men's
22 basketball and FBS football, the overall rates lag behind the rates of males in the student body."
23 !d. Alternative measurement methodologies such as the "Graduation Success Rate" or the
24 "Adjusted Graduate Gap" yield similar overall results. !d. at 36-37. If the comparison is made
25 with the graduation rates of all athletes in all NCAA divisions, the shortfalls for Division I
26 football and basketball players are, respectively, 6% and 18%. The adverse impact is felt
27 disproportionately by black male SAs. A study for the period 2007-10 noted that blacks
28 represented 57.1% ofthe SAs on football teams and 64.3% ofthose on basketball teams, but
4:09-cv-1967 CW (NC) - 13-
ANTITRUST PLAINTIFFS' COMBINED OPPOSITION TO
NCAA'S MOTION FOR SUMMARY JUDGMENT AND REPLY
ISO MOTION FOR SUMMARY JUDGMENT
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page21 of 30
1 "[a]cross four cohorts, 50.2% of black male athletes graduated within six years, compared to
2 66.9% of athletes overall, 72.8% of undergraduate students overall, and 55.5% of black
3 undergraduate men overall." !d. at 36; see also CSHER at 20 (UCB graduation rate for black SAs
4 as low as 18-30%).
5 Thus, the NCAA has not shown that the challenged restraint is essential to integration.
6 Alleged Support for Women's And Other Men's Sports. The NCAA next surmises that
7 compensating Class members for use of their NILs would have a drastic adverse effect on the
8 support colleges and universities could provide to women's and less prominent men's sports. DM
9 at 22-25. This alleged benefit, however, exists in a market different from that in which the
10 restraint operates and should not be considered. APM at7 n.7. Moreover, this argument hinges on
11 the assumption that the current rules are essential to maintaining that goal. The evidence
12 conclusively demonstrates otherwise.
13 For example, an April28, 2010 memorandum from Jocelyn Potuto, President of lA
14 Faculty Representatives to the NCAA's Board of Directors, noted that "many institutions are
15 increasingly resorting to cutting sports: more than 200 have been eliminated in the last three
16 years." Ex. 20 at 6. This practice has continued since 2010.
26
Brand has said
. Ex. 25 at 14. Thus, the challenged restraint is not essential to
18 preserving women's and less prominent men's sports and any claim that abolition of it might
19 merely exacerbate present inequities is a legally insufficient justification.
20 As for the contention that compensating Class members for use of their NILs will lead to
21 more cutting of other sports, this argument wrongly assumes a 50/50 revenue split is dictated by
22 any injunction. In any event, given the vast amounts spent on Division I coaching staffs and
23 hugely expensive football/basketball facilities (SR at 24-25; KCR at 12, 16-17; DRRR at ~ 7
24 77; DGR at 13-15), some cost-cutting and reallocation of saved money is entirely possible. In
25 addition, the NCAA has the ability to reallocate money obtained from the annual March Madness
26 basketball tournament. As noted in the DGR, considering 2011-12 figures, "$368.2 million, or
27
26
On December 22, 2013, it was reported that Temple University decided to cut men's and
women's crew and five other varsity sports; similar cuts were made the University of Maryland
28 and six by Rutgers University in 2012. Ex. 21; see also Appendix (listing many examples).
4:09-cv-1967 CW (NC) - 14-
ANTITRUST PLAINTIFFS' COMBINED OPPOSITION TO
NCAA'S MOTION FOR SUMMARY JUDGMENT AND REPLY
ISO MOTION FOR SUMMARY JUDGMENT
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page22 of 30
1 78.8 percent of the total NCAA distribution, is allocated according either to success in the March
2 basketball tournament or to the size of the athletic program and its scholarships. The second
3 largest amount is the $122.7 million allocated to the scholarship fund, which strongly favors FBS
4 programs where 85 full football grants-in-aid are allowed. This distribution means that money
5 generated in the sport of basketball is going to support football programs, which appears to make
6 neither logical nor educational sense." DGR at 12 (emphasis added). Certainly, some ofthis
7 distribution could be restructured, if necessary, to preserve other sport programs.
8 Allegedly Increased Output. The NCAA argues that the effect of the challenged restraint
9 has been to increase output by every conceivable measure. DM at 24-25. However, from the
10 perspective of the labor input market, the undisputed evidence is that output has decreased. As
11 noted above, the NCAA has discontinued its licensing contract with EA; no NCAA-themed
12 videogames are now being produced. The NCAA used to sell numbered jerseys on its website
13 searchable with reference to the names of SAs; it has now curtailed that practice as well,
14 admitting that it was acting hypocritically. NRR at 86 & n.79; see also NR at 44-45 (noting
15 NCAA's cutback in the number of scholarships given to SAs who play Division I men's football
16 and basketball). These are all output-reducing results caused by the NCAA's rules.
17 Even if one took a broader view of the markets in which the restraint operates, the effect
18 of the rules have been to lower output or to be output-neutral. In the oral argument before the
19 United States Supreme Court in BoR, the NCAA's counsel, Frank Easterbrook, admitted candidly
20 that "[w]hen the NCAA says, we are running programs of amateur football, it is probably
21 reducing its net profits. It might be able to get more viewers and so on if it had semi-professional
22 clubs rather than amateur clubs." DRRR at 3 6 (emphases added).Z
7
23 Less Restrictive Alternatives. Even if any of these precompetitive justifications were
24 deemed meritorious, less restrictive alternatives exist (APM at 7 n.7), which the NCAA ignores.
25
26
27
28
27
See also Dkt. No. 898-11 at 455 (Rubinfeld's textbook stating that the NCAA cartel reduces
number of games played).
4:09-cv-1967 CW (NC) - 15 -
ANTITRUST PLAINTIFFS' COMBINED OPPOSITION TO
NCAA'S MOTION FOR SUMMARY JUDGMENT AND REPLY
ISO MOTION FOR SUMMARY JUDGMENT
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page23 of 30
1 Dated: January 13, 2014
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4:09-cv-1967 CW (NC)
Respectfully submitted,
By: Is/ Michael P. Lehmann
Michael P. Lehmann (Cal. Bar No. 77152)
Arthur N. Bailey, Jr. (Cal. Bar No. 248460)
HAUSFELD LLP
44 Montgomery St., 34th Floor
San Francisco, CA 94104
Telephone: (415) 633-1908
Facsimile: ( 415) 358-4980
E-mail: mlehmann@hausfeldllp.com
abailey@hausfeldllp.com
Michael D. Hausfeld (pro hac vice)
Hilary K. Scherrer (Cal. Bar No. 209451)
Sathya S. Gosselin (Cal. Bar. No. 269171)
HAUSFELD LLP
1700 K Street, NW, Suite 650
Washington, DC 20006
Telephone: (202) 540-7200
Facsimile: (202) 540-7201
E-mail: mhausfeld@hausfeldllp.com
hscherrer@hausfeldllp.com
sgosselin@hausfeldllp.com
Plaintiffs' Class Counsel with Principal
Responsibility for the Antitrust Claims
Renae Steiner
Vincent J. Esades
HEINS MILLS & OLSON, P.L.C.
31 0 Clifton A venue
Minneapolis, MN 55403
Telephone: (612) 338-4605
Facsimile: (612) 338-4692
Email: rsteiner@heinsmills.com
vesades@heinsmills.com
Steven J. Greenfogel
LITE DEPALMA GREENBERG, LLC
1521 Locust Street, 7th Floor
Philadelphia, P A 19102
Telephone: (973) 877-3819
Email: sgreenfogel@litedepalma.com
- 16-
ANTITRUST PLAINTIFFS' COMBINED OPPOSITION TO
NCAA'S MOTION FOR SUMMARY JUDGMENT AND REPLY
ISO MOTION FOR SUMMARY JUDGMENT
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page24 of 30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17 4848-0491-2919, v. 7
18
19
20
21
22
23
24
25
26
27
28
4:09-cv-1967 CW (NC)
Eric B. Fastiff (Cal. Bar No. 182260)
Brendan P. Glackin (Cal. Bar No. 199643)
Katherine C. Lubin (Cal. Bar No. 259826)
LIEFF CABRASER HEIMANN &
BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: (415) 956-1000
Facsimile: (415) 956-1008
Email: efastiff@lchb.com
bglackin@lchb.com
klubin@lchb.com
Allan Steyer (State Bar No. 1 00318)
D. Scott Macrae (State Bar No. 104663)
STEYER LOWENTHAL BOODROOKAS
ALVAREZ & SMITH LLP
One California Street, Third Floor
San Francisco, CA 94111
Telephone: (415) 421-3400
Facsimile: (415) 421-2234
Email: asteyer@steyerlaw.com
smacrae@bamlawca.com
Additional Plaintiffs' Counsel on the Brief
- 17-
ANTITRUST PLAINTIFFS' COMBINED OPPOSITION TO
NCAA'S MOTION FOR SUMMARY JUDGMENT AND REPLY
ISO MOTION FOR SUMMARY JUDGMENT
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page25 of 30
APPENDIX

SCHOOL &
CONFERENCE
SPORTS ELIMINATED DATE OF
ELIMINATION
SOURCE
Temple University -
American Athletic
Conference
Baseball
Softball
Mens Crew
Womens Rowing
Mens Gymnastics
Mens Indoor Track
Mens Outdoor Track

2014 http://temple-
news.com/news/2013/12/06/universit
y-eliminate-seven-intercollegiate-
sports/ (Ex. 27)
University of Maryland
Atlantic Coast
Conference
Mens Swimming
Womens Swimming
Mens Tennis
Womens Water Polo
Acrobatics & Tumbling
Mens Cross-Country
Mens Indoor Track

2012 http://www.washingtonpost.com/spor
ts/maryland-cuts-seven-sports-on-sad-
day-in-college-
park/2012/07/02/gJQAqJFBJW_story.h
tml (Ex. 28)
Towson University
Colonial Athletic
Conference
Baseball
Mens Soccer
2013 http://articles.baltimoresun.com/2013
-03-08/business/bal-towson-president-
decides-to-cut-baseball-mens-soccer-
20130308_1_maravene-loeschke-
towson-president-towson-officials (Ex.
29)

Robert Morris
University Northeast
Conference
Mens Indoor Track
Mens Outdoor Track
Mens Cross Country
Mens Tennis
Womens Field Hockey
Womens Golf
Womens Tennis

2013 http://www.wpxi.com/news/sports/co
llege/robert-morris-university-
eliminating-7-ncaa-divisi/nb93d/ (Ex.
30)
Mount St. Marys
University Northeast
Conference
Mens Soccer
Mens Golf
Womens Golf
2013 http://www.soccerwire.com/news/coll
ege/ncaa-d1-men/division-i-mount-st-
marys-latest-to-announce-elimination-
of-mens-soccer-program/ (Ex. 31)

University of Richmond
Atlantic 10
Conference
Mens Soccer
Mens Track
2012 http://thecollegianur.com/2012/09/27
/community-not-accepting-soccer-and-
track-cuts-without-a-fight/28740/ (Ex.
32)

Rutgers University
American Athletic
Conference
Mens H. Weight Crew
Mens L. Weight Crew
Mens Fencing
Womens Fencing
Mens Swimming
Mens Tennis
2007 http://sports.espn.go.com/ncaa/news/
story?id=2519938 (Ex. 33)
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page26 of 30
Boston University
Patriot League
Wrestling 2014 http://www.examiner.com/article/no-
4-story-of-2013-boston-university-to-
kill-wrestling-program-after-2013-14
(Ex. 34)

University of Nebraska
Big 10
Wrestling 2011 http://www.examiner.com/article/neb
raska-omaha-wins-3d-straight-ncaa-
d2-mat-title-then-program-gets-the-
axe (Ex. 35)

University of
Washington PAC-12
Conference

Mens Swimming
Womens Swimming
2009 http://seattletimes.com/html/sports/2
009157966_budgetcuts02.html (Ex. 36)

University of
Massachusetts
Atlantic 10 Conference
Mens Skiing
Womens Skiing
2009 http://usatoday30.usatoday.com/sport
s/olympics/2009-04-02-
4074405284_x.htm (Ex. 37)

University of
Massachusetts
Atlantic 10 Conference
Womens Volleyball
Mens Water Polo
Womens Water Polo
Mens Gymnastics
Womens Gymnastics
Mens Tennis
Mens Indoor Track

2002 http://www.umassathletics.com/sport
s/m-itrack/spec-rel/031102aaa.html
(Ex. 38)

Pepperdine West
Coast Conference
Mens Track
Womens Swimming
2009-10 http://usatoday30.usatoday.com/sport
s/olympics/2009-03-03-
2368858001_x.htm (Ex. 39)

University of Maine
America East
Conference
Mens Soccer
Womens Volleyball
2009 http://www.soccer-new-
england.com/UMaine-Cuts-Mens-
Soccer-Program.html (Ex. 40)

University of Vermont
America East
Conference
Baseball
Softball
2009 http://collegesportsinfo.com/2009/02/
20/vermont-cutting-baseball-and-
softball/ (Ex. 41)

Quinnipiac University
Metro Atlantic Athletic
Conference
Mens Golf
Womens Volleyball
Mens Outdoor Track
2009 http://bleacherreport.com/articles/18
2405-title-ix-in-full-force-quinnipiac-
forced-to-keep-womens-volleyball (Ex.
42)

Hofstra University
Colonial Athletic
Conference
Football 2009 http://www.nydailynews.com/sports/c
ollege/hofstra-university-drops-
football-team-due-lack-funds-interest-
article-1.432171 (Ex. 43)

Cleveland State
University Horizon
Conference

Baseball 2011 http://www.wksu.org/news/story/282
70 (Ex. 44)
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page27 of 30
University of Rhodes
Island Atlantic 10
Conference
Field Hockey
Mens Tennis
Mens Swimming

2008 http://www.cstv.com/sports/m-
tennis/uwire/041508aaa.html (Ex. 45)
University of Delaware
Colonial Athletic
Conference
Mens Track 2011 http://www.nytimes.com/2011/05/02/
sports/02gender.html (Ex. 46)

Delaware State
University Mid-
Eastern Conference
Mens Tennis
Womens Equestrian
2010 http://meacswacsports.blogspot.com/
2010/01/delaware-state-university-
cuts-two.html (Ex. 47)

University of Richmond
Atlantic 10
Conference
Mens Track
Mens Soccer
2012 http://thecollegianur.com/2012/09/21
/mens-soccer-and-track-field-cut-in-
favor-of-lacrosse/28685/ (Ex. 48)

West Virginia University
Big 12 Conference
Mens Indoor Track
Mens Outdoor Track
Mens Cross Country
Mens Tennis
Rifle

2003 http://old.post-
gazette.com/sports/wvu/20030420wv
ucuts0420p4.asp (Ex. 49)
University of Toledo
Mid-American
Conference
Mens Indoor Track
Mens Outdoor Track
Mens Swimming
2003 http://www.toledoblade.com/Educatio
n/2003/04/22/UT-eliminates-
swimming-track-for-male-athletes-
state-cuts-Title-IX-figure-in-
decision.html (Ex. 50)

Ohio University Mid-
American Conference
Mens Indoor Track
Mens Outdoor Track
Mens Swimming

2007 http://title-
ix.blogspot.com/2007/01/ohio-
university-drops-four-sports.html (Ex.
51)
Bowling Green Mid-
American Conference
Mens Track
Mens Tennis
Mens Swimming
2002 http://old.nationalreview.com/lopez/l
opez051002.asp (Ex. 52)


Marshall University
Conference USA
Mens Indoor Track
Mens Outdoor Track

2003 http://www.marshallparthenon.com/2
.13765/men-s-track-victim-of-cuts-
1.1900985 (Ex. 53)

James Madison
University Colonial
Athletic Conference
Mens Indoor Track
Mens Outdoor Track
Mens Cross Country
Mens Swimming
Mens Gymnastics
Mens Wrestling
Mens Archery
Womens Gymnastics
Womens Fencing
Womens Archery



2006 http://www.nytimes.com/2006/10/07/
sports/othersports/07madison.html?p
agewanted=all (Ex. 54)
REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page28 of 30
Tulane University -
Conference USA
Mens track
Mens Cross Country
Mens Golf
Womens Golf
Mens Tennis
Womens Tennis
Womens Soccer
Womens Swimming

2006 http://abcnews.go.com/US/HurricaneK
atrina/story?id=1390382 (Ex. 55)
Butler Big East Mens Swimming
Mens Lacrosse
2007 http://www.butlersports.com/genrel/0
12607aaa.html (Ex. 56)

Missouri State
Missouri Valley
Conference
Mens Indoor Track
Mens Outdoor Track
Mens Cross Country
Mens Tennis
Womens Tennis

2006 http://www.momentummedia.com/ar
ticles/cm/cm1408/bbmissouristate.ht
m (Ex. 57)
Seton Hall Big East Mens Indoor Track
Mens Outdoor Track
Womens Indoor Track
Womens Outdoor Track

2010 http://www.nj.com/setonhall/index.ssf
/2010/02/seton_hall_to_cut_four_spo
rts.html (Ex. 58)
Georgia State
University Sun Belt
Conference
Mens Cross Country
Mens Track
2013 http://www.georgiastatesports.com/Vi
ewArticle.dbml?DB_LANG=C&ATCLID=
205818219&DB_OEM_ID=12700 (Ex.
59)

Ball State University
Mid-American
Conference
Mens Indoor Track
Mens Outdoor Track
Mens Cross Country
2003 http://www.nwitimes.com/sports/coll
ege/ball-state-to-eliminate-men-s-
cross-country-track-
teams/article_d47d42a4-67ff-581d-
a028-7ff0397e112e.html (Ex. 60)

Portland State
University Big Sky
Conference
Wrestling 2009 http://seattletimes.com/html/educatio
n/2008881709_apportlandstatewrestli
ng.html (Ex. 61)

Coastal Carolina Big
South Conference
Mens Outdoor Track
Mens Cross Country
2014 http://www.goccusports.com/sports/c
-track/spec-rel/050213aab.html (Ex.
62)

Nicholls State
University Southland
Conference

Womens Golf
Mens Track
2009 http://www.dailycomet.com/article/20
090515/ARTICLES/905159986#gsc.tab=
0 (Ex. 63)
Southeastern Louisiana
Southland Conference
Mens Tennis 2009 http://sports.espn.go.com/ncaa/news/
story?id=4162546 (Ex. 64)



REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page29 of 30

CERTIFICATE OF SERVICE
I hereby certify that on J anuary 13, 2014, I served the foregoing document on counsel by
filing the public redacted version via the Courts CM/ECF system, which will send an email
notice to all registered parties. On J anuary 13, 2014, I also served the non-public version on
counsel for all parties via an FTP site or by email.

/s/ Sathya Gosselin
Sathya S. Gosselin

REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
Case4:09-cv-01967-CW Document956-5 Filed01/13/14 Page30 of 30

Вам также может понравиться