NCAA motion

7/29/2019 NCAA motion

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MOTION TO STRIKE ANTITRUST PLAINTIFFS

MOTION FOR CLASS CERTIFICATION

CASE NO. 09-CV-1967-CW

DEFENDANTS COUNSEL LISTEDON SIGNATURE PAGE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

In re NCAA Student-Athlete LikenessAntitrust Litigation

Case No. 09-cv-1967-CW

NOTICE OF MOTION AND MOTION OFDEFENDANTS TO STRIKE ANTITRUSTPLAINTIFFS MOTION FOR CLASSCERTIFICATION; STATEMENT OF RELIEFSOUGHT; AND MEMORANDUM OF POINTSAND AUTHORITIES IN SUPPORT

Date: November 29, 2012

Time: 2:00 p.m.Dept: Courtroom 2, 4th FloorJudge: Hon. Claudia WilkenComplaint filed: May 5, 2009

Case4:09-cv-01967-CW Document639 Filed10/24/12 Page1 of 33


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iMOTION TO STRIKE ANTITRUST PLAINTIFFS



TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

NOTICE OF MOTION AND STATEMENT OF RELIEF SOUGHT ........................................... 1

PRELIMINARY STATEMENT ..................................................................................................... 1

STATEMENT OF FACTS ............................................................................................................. 2

I. The CCM Radically and Inconsistently Changes the ClassDefinition, Liability and Damages Theories ....................................................................... 3

A. The Alleged Damages Class: Changed From Former Student-AthletesWhose Likenesses Were Licensed After They Stopped PlayingNCAA Sports To Current Student-Athletes Who Appear in Game Footage ..... 3

B. The Allegedly Illegal Conduct ................................................................................ 4

1. Changed From Perpetual Release Forms To The NCAAsAmateurism and Eligibility Rules ............................................................... 4

2. Changed From Vertical to Horizontal Restraint of Trade ............................... 6

C. The Allegedly Affected Products ............................................................................ 7

1. Changed From Archival Video and Merchandise To Live Broadcast ........... 7

2. Changed From Former Student-Athletes in Video Games to CurrentStudent- Athletes in Video Games .............................................................. 8

D. The Alleged Relevant Market: Changed From Collegiate Licensing ToEducation and Group Licensing .............................................................................. 9

II. Plaintiffs Admitted That Live Broadcast and Amateurism Are Not In This Case ........... 10

ARGUMENT ................................................................................................................................ 12

I. The Court Should Strike the CCM Because It Deviates Materially From the 2CAC....... 12

II. The Court Should Strike the CCM Because Its Attempt To Set Forth A Horizontal Theoryof Liability Is Contrary to Law of the Case ...................................................................... 14

III. The Court Should Strike the CCM Because Plaintiffs Are Judicially Estopped fromPursuing The Surprise Liability Theory Set Forth Therein .............................................. 14

A. Judicial Estoppel Precludes Inconsistent Positions for Litigation Advantage ...... 15

B. Plaintiffs Current Liability Theory Is Inconsistent With Their EarlierPositions ................................................................................................................ 16

C. Plaintiffs Succeeded In Persuading Courts To Accept Their EarlierPosition .................................................................................................................. 17

D. Plaintiffs Would Derive An Unfair Advantage Or Impose An Unfair

Detriment on Defendants If Not Estopped ............................................................ 19E. Plaintiffs Have Engaged in Chicanery............................................................... 21

IV. Neither Plaintiffs, Nor The Putative Class, Will Be Prejudiced By Striking TheCCM .................................................................................................................................. 22

V. The CCM Should Be Stricken As To EA and CLC For Unique and IndependentReasons ............................................................................................................................. 23

CONCLUSION ............................................................................................................................. 24



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iiMOTION TO STRIKE ANTITRUST PLAINTIFFS



TABLE OF AUTHORITIES

49er Chevrolet, Inc. v. General Motors Corp.,803 F.2d 1463 (9th Cir. 1986)........................................................................................... 24

Agnew v. NCAA,

683 F.3d 328 (7th Cir. 2012) ....................................................................................... 21, 24

Anderson v. U.S. Dept of Hous. and Urban Dev.,554 F.3d 525 (5th Cir. 2008) ............................................................................................. 12

Baughman v. Walt Disney World Co.,685 F.3d 1131 (9th Cir. 2012) ............................................................................... 16, 18, 19

Bell Atlantic v. Twombly,550 U.S. 544 (2007) .......................................................................................................... 24

Brown v. Am. Airlines, Inc.,No. CV 10-8431 AG (PJWx), --- F.R.D. ---, 2011 WL 9131817

(C.D. Cal. Aug. 29, 2011) ................................................................................................ 12

Burns v. City of Dallas,No. 3:94-CV-2770-R, 1999 WL 47237 (N.D. Tex. Jan. 22, 1999) .................................. 12

Chavez v. Bank of Am. Corp.,No. C-10-0653 JCS, 2012 WL 1594272 (N.D. Cal. May 4, 2012) .................................. 14

Chodos v. West Publg Co.,292 F.3d 992 (9th Cir. 2002) ............................................................................................. 13

Coopers & Lybrand v. Livesay,437 U.S. 463 (1978) .......................................................................................................... 22

Evans v. IAC/Interactive Corp.,No. CV051104DSFCWX, 2007 WL 7086261 (C.D. Cal. Mar. 14, 2007) ................. 12, 14

Hamilton v. State Farm Fire & Cas. Co.,270 F.3d 778 (9th Cir. 2001) ............................................................................................. 15

Helfand v. Gerson,105 F.3d 530 (9th Cir. 1997) ............................................................................................. 15

Hersh v. Natl Found. Life Ins. Co.,No. C-11-03289 EDL, 2012 WL 381173 (N.D. Cal. Feb. 6, 2012) ..................... 18, 19, 21

In re Geneva Towers Assoc.,No. C-93-2390 CW, 1994 WL 124840 (N.D. Cal. Mar. 30, 1994) .................................. 14

Jackson v. Bank of Hawaii,902 F.2d 1385 (9th Cir. 1990) ..................................................................................... 13, 20

Kendall v. Visa U.S.A., Inc.,518 F.3d 1042 (9th Cir. 2008)........................................................................................... 24



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iiiMOTION TO STRIKE ANTITRUST PLAINTIFFS



Khan v. S&C Elec. Co.,No. 3:11-cv-03621, 2012 WL 4062811 (N.D. Cal. Sept. 14, 2012) ................................. 16

Marchiafava v. Gonzalez, Louisiana Police Dept,No. 06-414-RET-CN, 2008 WL 2437526 (M.D. La. June 16, 2008) ............................... 12

McGlinchy v. Shell Chem. Co.,845 F.2d 802 (9th Cir. 1988) ............................................................................................. 13

Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC,692 F.3d 983 (9th Cir. 2012) ................................................................................. 15, 17, 21

Munoz v. Giumarra Vineyards Corp.,No. 1:09-cv-00703-AWI-JLT, 2012 WL 2617553 (E.D. Cal. July 5, 2012) ................... 12

NCAA v. Bd. of Regents of Univ. of Okla.,468 U.S. 85 (1984) ...................................................................................................... 21, 24

New Hampshire v. Maine,532 U.S. 742 (2001) .......................................................................................................... 15

Plascencia v. Lending 1st Mortg.,No. C 07-4485 CW, 2012 WL 253319 (N.D. Cal. Jan. 26, 2012) .............................. 12, 13



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1MOTION TO STRIKE ANTITRUST PLAINTIFFS



NOTICE OF MOTION AND STATEMENT OF RELIEF SOUGHT

PLEASE TAKE NOTICE that on Thursday, November 29, 2012 at 2:00 pm before the

Honorable Claudia Wilken, United States District Court, 1301 Clay Street, Suite 400 S, Oakland

CA 94612-5212, Courtroom 2, 4th Floor, defendants will and hereby do respectfully move the

Court, pursuant to Federal Rules of Civil Procedure 8, 12, 16 and 23 and with leave of Court, Dkt.

591, for an order striking the class certification motion filed by Antitrust Plaintiffs (plaintiffs)

in this action on August 31, 2012.

PRELIMINARY STATEMENT

We dont claim rights to be compensated for appearing in live broadcasts or playing on thefield, the amateur principles that have been so hallowed.

1

Unlike other cases involving the NCAA, this case does not involve questions of the protection of

amateur sports, the student athlete experience, or other goals. The damages class here (Compl.43) involves former student-athletes, who are citizens not subject to NCAA governance, andshould be entitled to control, license, and profit from their own image and likeness.2

Prior to August 31 of this year, the liability and damages theories alleged and pursued by

plaintiffs had never changed. In the numerous individual and consolidated complaints, plaintiffs

claims relied on the same handful of incorrect assertions:

1. The NCAA forced student-athletes to sign perpetual release forms;2. The NCAA, CLC, EA and others, engaging in a series of vertical conspiracies,

used these perpetual release forms to boycottformer student-athletes;3. The fruits of this conspiracy were a variety of multimedia revenue streams

that featured the image, likeness and/or name offormer student-athletes;

4. These multimedia revenue streams didnot include revenues earned from thelive broadcasts of football or basketball games; and

5. The remedy for this alleged wrongdoing was to compensate former student-athletes for defendants wrongful reliance on the perpetual release forms,

and to enjoin defendants from relying on the forms in the future.

Plaintiffs perpetual release theory the only liability theory set forth in the Second

Consolidated Amended Class Action Complaint (2CAC)3 was reaffirmed by plaintiffs in

statements to defendants and the Court. It was repeatedly relied upon in the opinions of this

1 Ellen Meriwether, Counsel for Antitrust Pls., Ex. 1, Tr. of Oral Arg.,In re NCAA, No. 09-1967 (N.D. Cal. Feb. 8, 2012) (Big Ten Hrg.) at 15:15-2.2

Ex. 2, Pl OBannons Opp. to NCAAs Mot. to Dismiss the Compl., OBannon v. NCAA,No. CV-09-3329-CW (N.D. Cal. Oct. 27, 2009) (OBannon Opp.), Dkt. 107 at 3.3

__ are references to the 2CAC, Dkt. 327, unless otherwise noted.



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Court and Magistrate Judge Cousins. Yet when plaintiffs filed their Class Certification Motion

(CCM), the perpetual release theory had all but disappeared. Plaintiffs now ask the Court to

certify a class based on the following, entirely new, liability theory:

1.

The NCAA forces current student-athletes to compet[e] under collusiverestraints,4 including NCAA amateurism and eligibility rules mentioned

nowhere in the 2CAC;

2. As a result of these collusive restraints, the NCAA and its members haveagreed not to pay, and do not pay, current or former student-athletes . . . for

the use of their names, images and likenesses in connection with live

television broadcasts of games and videogames;5 and

3. The remedy for this alleged wrongdoing is to award current and formerfootball and mens basketball players 50% of all revenues earned by the

NCAA or its member schools for the live broadcast of Division I football or

mens basketball games.6

It is beyond dispute that the class liability theory, and class definition, set forth in the

CCM do not appear in the 2CAC or any other complaint filed by plaintiffs. Indeed, plaintiffs

boasted to the press about the CCMs last-minute change in theory:

Im sure the NCAA will go ballistic over this, another source, a member ofplaintiffs legal team, told ESPN. This is their worst nightmare, this issue

coming front and center this deep into the case.7

The Court should not reward plaintiffs gamesmanship. Class certification motions must conform

to the allegations of the operative complaint. The Court should strike the CCM for its failure to

do so.

STATEMENT OF FACTS

The class definition, liability and damages theories set forth in the CCM are fatally

inconsistent with the allegations of the 2CAC, plaintiffs binding admissions to this Court, and

this Courts prior rulings.

4 CCM at 2.5 CCM at 3 (emphasis added).6 Dkt. 633, Report of Roger Noll at 101-104 (Noll).7

Tom Farrey, Change in Compensation Sought, Sep. 2, 2012, available athttp://espn.go.com/college-sports/story/_/id/8324732/new-motion-lawsuit-ncaa-change-how-athletes-compensated (last accessed October 16, 2012).



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I. The CCM Radically and Inconsistently Changes the Class Definition, Liability andDamages Theories

The CCM profoundly changes every significant aspect of the antitrust claims set forth in

the 2CAC and plaintiffs other complaints. The CCM introduces a new, much broader class

definition, new allegations of illegal conduct, new products supposedly affected by that illegal

conduct, and new relevant markets.

A. The Alleged Damages Class: Changed From Former Student-Athletes WhoseLikenesses Were Licensed After They Stopped Playing NCAA Sports ToCurrent Student-Athletes Who Appear in Game Footage

The 2CAC sets forth the claims of named plaintiffs who played Division I mens

basketball or FBS football and whose images have been licensed or sold by Defendants since

July 21, 2005. 8, 268. The Antitrust Damages Class alleged in the 2CAC is expressly

limited to former student-athletes. 15. None of the named plaintiffs is a current student-athlete

and none of them seeks compensation for damages supposedly suffered while he was still in

school. 2CAC,passim.

Instead, the 2CAC repeatedly and specifically alleges that plaintiffs have been injured by

alleged restraints that took placeafter plaintiffs stopped playing NCAA sports. Plaintiffs describe

the wrongdoing at issue as relating to the commercial exploitation of their images, likenesses

and/or names following their cessation of intercollegiate athletic competition. 9 (emphasis

added).8 The 2CAC devotes dozens of paragraphs to describing the allegedly unlawful sale of

archivalvideo content featuring plaintiffs and other former student-athletes. See, e.g.,44-167.9

Significantly, plaintiffs do not allege that game broadcasts made while they, or other class

members, were still in school were products of the wrongdoing alleged in the 2CAC, nor do they

8 See also 13, 17, 25, 26, 30. The Court relied on the representations in its orders,referring to allegations related to former student-athletes. See, e.g., Order Den. Electronic ArtsMot. for J. on the Pleadings, Dkt. 455 at 3. The Court also characterized the plaintiffs classes asconsisting of current and former student-athletes who participated in Division I basketball orfootball and whose images, names, or likenesses have been licensed or sold by defendants, theirco-conspirators, or their licenseesafter the conclusion of the student-athletes participation incollege sports. Order Granting Plaintiffs Mot. to Compel Financial Data, Dkt. 498 at 2(Cousins, M.J.) (emphasis added); see also Order Den. Mot. to Compel Produc. of Doc. byNonparties, Dkt. 64 at 3 (Cousins, M.J.) (same).9 See also 11, 18.



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claim damages related to those broadcasts. 332-436 (listing products at issue). The 2CAC

could not be more clear: this is a case brought by former student-athletes, seeking damages for

allegedly illegal sales of their name, image or likeness made after plaintiffs had stopped

playing NCAA sports.10

In the CCM, plaintiffs have redefined, and significantly expanded, their damages class to

encompass all football and mens basketball players whose image, likeness and/or name has

been included in game footage or videogames licensed or sold by Defendants, including live

broadcasts of game footage.

CCM at 1-2; Noll at 12, 14. This is a dramatic expansion of the

proposed damages class. Under the 2CAC, a damages class member was required to show tha

his image, likeness or name (1) was actually sold or licensed by defendants, (2) after he had

stopped playing NCAA sports. See44-167.

Both of those requirements are now gone. Under the new class definition, the only

apparent criterion for inclusion in the damages class is that a former student-athlete be on the

roster of a Division I football or mens basketball team that had one or more of its games

broadcast on television while the class member was still in school. See Noll at 95-107.Inclusion

on the roster appears to be sufficient for inclusion in the damages class regardless of whether the

class members image, likeness or name was actually used in that broadcast. Id. Indeed

plaintiffs proposed expert testimony on damages would award damages to everyone who

appeared on a roster during the class period. Noll at 107-108; see also Noll Appx. C-B2

(damages for rebroadcasts for all Former Basketball Athletes) and C-B13 (damages from live

broadcasts for Basketball Athletes on 2009-10 Roster).

This bears no resemblance to the previous damages class of former student-athletes whose

collegiate likenesses were supposedly wrongfully licensed by defendants after graduation

The CCM dramatically, and impermissibly, expands the damages class.

B. The Allegedly Illegal Conduct

1. Changed From Perpetual Release Forms To The NCAAsAmateurism and Eligibility Rules

The 2CAC is quite specific about how defendants supposedly restrained trade. Plaintiffs

10 See 316, 489, 496.



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allege repeatedly, and at great length, that the alleged restraint was accomplished by the NCAA

forcing student-athletes to sign perpetual release forms. Plaintiffs claimed that the NCAA

accomplishes its unreasonable restraint of trade by requiring all student-athletes to sign a form

each year that purports to require each of them to relinquish all rights in perpetuity to the

commercial use of their images and by requiring them to sign at least one other similarly illegal

consent form pursuant to Article 12.5.1.1 of its Bylaws. 21-22; see also 502. Plaintiffs

claimed that, absent these forms, NCAA members would have competed against each other by

offering higher amounts of post-graduation licensing revenues to student athletes. 312; see also

23, 283-295, 301-305, 308. Importantly, these perpetual release form allegations are thesole

basis of alleged NCAA wrongdoing identified in the 2CAC.11

The 2CACs focus on a forms conspiracy aimed at former student-athletes is also

apparent from plaintiffs requested relief. In addition to money damages, they asked for

declaratory relief that NCAA forms regarding future compensation rights are void and

unenforceable. 31.12

They similarly sought injunctive relief permanently enjoining the NCAA

and its members from using forms that purport to deprive former student-athletes of licensing

and/or compensation rights, and further enjoining Defendants from selling, licensing or using

former student-athletes rights. 32 (emphasis added). Notably, the 2CAC doesnot request tha

the NCAA amateurism or eligibility rules like Division I Bylaw 12.1.2 (Amateur Status)

mentioned for the first time in the CCM be declared illegal or enjoined. Nor does the 2CAC

request any damages related to revenues earned from live broadcasts of NCAA sporting events, or

any other damages resulting from restraints allegedly imposed on student-athletes while they

are still in school. Indeed, the antitrust counts of the 2CAC expressly allege that purported

actions of the NCAA, CLC, and EA are illegal precisely because they cannot be justified as

attempts to protect amateurism given that plaintiffs have exhausted their NCAA

eligibility. 492, 506.

11Although the 2CAC mentions a few NCAA Bylaws, all of them relate to the so-called

perpetual release forms identified in 2CAC 21 and 22. See 283-289, 303-304.12

See also 498 and at Antitrust Prayer for Relief, F, H.



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The CCM, in contrast, largely ignores the claim that the class has been restrained by the

2CACs forms conspiracy. Although the forms are mentioned in passing, CCM at 4-5

plaintiffs new liability theory no longer requires class members to demonstrate that they have

signed, or been restrained by, the forms,13 nor do plaintiffs propose how such proof could or

would be established for the class as a whole. Id. at 5.

Instead, plaintiffs now propose to show that current student-athletes play NCAA sports

under collusive restraints in which the NCAA and its member schools have agreed not to pay

and do not pay, current or former student-athletes in Division I football or basketball for the use

of their names, images and likenesses in connection with television broadcasts of games. CCM

at 2, 3. Plaintiffs new theory isnot based in the supposed illegality of any of the NCAA forms

or bylaws identified in the 2CAC. Rather, plaintiffs now claim that the NCAAs television

contracts with broadcasters, as well as NCAA Bylaws not identified in the 2CAC (including

Division I Bylaw 12.1.2 (Amateur Status), mistakenly identified as Bylaw 12.2.1 in the CCM)

give rise to the supposed horizontal restraint. Id. at 5-6.14

None of these supposedly illegal

restraints is mentioned in the 2CAC.

2. Changed from Vertical to Horizontal Restraint of Trade

The CCM is premised entirely on the notion that class members have been damaged by a

horizontal agreement not to compete . . . for student-athletes. CCM at 4. But this Cour

previously held that the 2CAC failed to establish such a horizontal restraint. In the briefing on

the NCAAs initial motion to dismiss this case, plaintiffs argued that their claims could be judged

using the per se standard of review because the NCAA and its members were engaged in a

horizontal price-fixing conspiracy. This Court disagreed:

OBannons allegationsdo not suggest the existence of a horizontal agreement

13 See, e.g., id. at 5 (The NCAA has contended that the Form was only in existence for aportion of the period in question. But there is no dispute that the principle of amateurismexpressed in the NCAA Constitution has been invoked for decades to deny compensation for useof a student-athletes name, image or likeness).14 In interrogatory responses served on September 24, 2012, plaintiffs also identifiedDivision I Bylaws 13.2.1 (Offers and Inducements), 16.01 (Awards, Benefits and Expenses forEnrolled Student-Athletes General Principles) and 16.02 (Awards, Benefits and Expenses forEnrolled Student-Athletes Definitions and Applications) as part of the alleged restraint atissue here. See Wierenga Decl. at 13-14. None of these bylaws is mentioned in the 2CAC.



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to fix prices or to engage in a group boycott. He does not claim that the

member schools compete with each other to profit from former student athletes

images.

Order on NCAAs and CLCs Mot. to Dismiss, Dkt. 151 at 9 (emphasis added). Although

plaintiffs filed subsequent complaints, none of those complaints, including the 2CAC, changed

the allegations that this Court found failed to establish the existence of a horizontal conspiracy

The Courts ruling, which is the law of the case, is flatly inconsistent with the CCM. Moreover

plaintiffs have abandoned, at least for purposes of certifying a class, the conspiracy claims that

managed to survive defendants motions to dismiss i.e., an alleged vertical conspiracy claim

against the NCAA, CLC, and EA. Dkt. 151 at 7, 9; 2/8/2012 Hrg. Tr. at 7.

C. The Allegedly Affected Products

1. Changed From Archival Video and Merchandise To Live Broadcast

In the 2CAC, plaintiffs alleged that their name, image or likeness is being used wrongfully

in a variety ofarchivalvideo footage. See332-436. 15 Plaintiffs further alleged the wrongful

sale of archival photos, 365-368, and the licensing of action figures, trading cards and posters,

369-371, video games, 372-419, and jerseys, t-shirts and other apparel, 428-436. Notably

absent from the products that the 2CAC places at issue is the sale of group licenses for live

broadcast.16

Nor does the 2CAC devote a single paragraph of its considerable length to alleging

that live broadcasts of NCAA sporting events constitute, or result from, an illegal restraint of

trade.

In the CCM, plaintiffs now claim to be suing on behalf of current or former student-

athletes in Division I football or basketball for the use of their names, images and likenesses in

connection with television broadcasts of games and videogames. CCM at 3 (emphasis added)

15 The footage was alleged used in (1) video clips shown during live broadcasts; (2) DVDs;(3) the NCAA Vault; (4) sales to advertisers; (5) streaming websites; and (6) rebroadcasts ofclassic games. 332-335, 336-346, 347-349, 350-360, 361-364, 420-427.16 The 2CAC does discuss Media Rights for Televising Games. 2CAC at p. 99. But it isclear that the 2CAC challenges only the use of video clips offormer student-athletes competinginprior tournament games during live games. 334. Merely stating that the NCAA and itsmembers derive revenue from the broadcast of live games is clearly insufficient to put defendantson notice or state a claim for the sale of group licenses for live broadcast. See 169, 332, 333;see also 336 (clarifying that plaintiffs are challenging the on-demand sale of old games, notlive games).



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Their expert report is devoted overwhelmingly to demonstrating that live broadcasts of NCAA

football and basketball games result from a restraint of trade in which NCAA amateurism and

eligibility rules somehow interfere withcurrent student-athletes selling group licenses for use

in those broadcasts. Noll at 6-10, 37-45. This new live broadcast theory finds no support in the

2CAC. Not a single named plaintiff has alleged facts demonstrating that he was included in a

live broadcast of game footage during plaintiffs proposed class period, see, e.g., 45-167,17

nor has any named plaintiff alleged that NCAA amateurism or eligibility rules prevented him,

while he was in school, from selling an individual or group license to a school or broadcaster in

connection with live broadcasts of games in which he played. Id.

2. Changed From Former Student-Athletes in Video Games to Current

Student-Athletes in Video Games

Just as this case has always been about re-broadcasts rather than live broadcasts as to

NCAA, as to EA and CLC it has always been about former student-athletes rather than curren

student-athletes.18 In opposition to EAs motion to dismiss the 2CAC, plaintiffs made clear that

the allegations they believed sufficed to state a claim against EA related to EAs alleged refusal to

compensate former student-athletes who appear in EAs video games.19 Even the one reference

to current student-athletes in plaintiffs opposition to EAs motion to dismiss the 2CAC was

rebuffed by this Court. Plaintiffs argued that EA could have offered to pay a current student-

athlete for the use of his name or image, with no money changing hands until after the student-

17

Only Plaintiffs Patrick Maynor, Tyrone Prothro and Damien Rhodes played NCAA sportsrecently enough to have appeared in a live broadcast within the purported class period, yet noneof them alleges that he actually did so. 123-130; 131-139; 152-158. Despite this fact,plaintiffs expert reports more than 95% of the class damages to the use of current student-athletes name, image or likeness in live broadcasts. CCM, Noll Appx. C-A1, C-14.18

In response to a Motion to Dismiss the OBannon Complaint, Plaintiffs stated that[u]nlike other cases involving the NCAA, this case does not involve questions of the protectionof amateur sports, the student athlete experience, or other goals. The damages class here (Compl.43) involvesformer student-athletes, who are citizens not subject to NCAA governance, andshould be entitled to control, license, and profit from their own image and likeness. OBannon v.NCAA, No. CV-09-3329-CW (N.D. Cal. Oct. 27, 2009), Dkt. 107 at 3 (emphasis in original).19 See Antitrust Plaintiffs Opp. to Def. EAs Mot. to Dismiss Second Am. ConsolidatedCompl., Dkt. 335 (The [2CAC] alleges new facts showing EA joined Defendants conspiracy byagreeing to boycottformer student athletes and to deny them compensation for EAs use of theirimages, likenesses and names.); see also id. at 6, 12. The only paragraphs referenced inPlaintiffs Opposition to EAs motion to dismiss related to former student-athletes. See 2CAC9, 17, 18, 271, 400, 496, 510.



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athlete graduated from college. Antitrust Plaintiffs Opp. to Def. EAs Mot. to Dismiss Second

Am. Consolidated Compl., Dkt. 335 at 8. The Court explicitly rejected that argument: EA

correctly points out that agreeing to compensate current students would be futile, even if no

money changed hands initially, because such an agreement would destroy those students

eligibility to compete as student-athletes. Order Den. EAs Mot. to Dismiss, Dkt. 345 at 7.

The Courts rulings on EAs motion for judgment on the pleadings and CLCs motion to

dismiss confirm that plaintiffs conspiracy claims as to EA and CLC were limited to former

student-athletes. In denying EAs motion for judgment on the pleadings, the Court found, tha

[i]n the context of Antitrust Plaintiffs other allegations, on a motion for judgment on the

pleadings, these terms can fairly be read to evidence a meeting of the minds between EA and

the other Defendants not to compensate former student-athletes. Order Den. Electronic Arts

Mot. for J. on the Pleadings, Dkt. 455 at 8.

Similarly, in considering CLCs Motion to Dismiss the original Complaint, the Court held

that the Complaint asserts that NCAAs and CLCs actions excluded [Plaintiff]and other former

student athletes from the collegiate licensing market. Order on NCAAs and CLCs Mot. to

Dismiss, Dkt. 151 at 4 (emphasis added). The Court further described the purportedly illega

agreements alleged in the Complaint as agreements . . . for licenses to distribute products or

media containing the images of [Plaintiff] andother former student athletes. For example

[Plaintiff] pleads an arrangement involving NCAA, CLC and Electronic Arts, Inc. concerning

video games that contain the likenesses offormer student athletes. Id. at 7 (emphasis added)

In its order denying CLCs motion to dismiss the CAC, the Court similarly held that the claim

against CLC was that CLC [allegedly] administered licenses for various products and media

containing the images offormer student-athletes. Order Granting EAs Mot. to Dismiss and

Den. CLCs and NCAAs Mot. to Dismiss, Dkt. 325 at 12-13 (emphasis added).

D. The Alleged Relevant Market: Changed From Collegiate Licensing ToEducation and Group Licensing

Finally, the 2CAC alleges that the relevant market is the collegiate licensing market in

the United States, including licensing rights to current and former players images and



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likenesses. 306. The 2CAC makes it plain that the market is a licensing market related to the

retail market for products identified with college athletics, or more succinctly, a licensing

market for NCAA-related merchandise. 319, 320, 324. There is no mention in the 2CAC of

a relevant market for education, or student-athlete labor.

The CCM abandons the collegiate licensing market and replaces it with two entirely

new alleged markets: (1) the student-athlete Division I college education market, and (2) the

market for the acquisition of group licensing rights for the use of student-athletes names, images

and likenesses in the broadcasts or rebroadcasts of Division I basketball and football games and in

videogames featuring Division I basketball and football. CCM at 18.20 Neither market appears

in the 2CAC, as plaintiffs implicitly concede; their only citation in connection with these markets

is to the Noll Report.

II. Plaintiffs Admitted That Live Broadcast and Amateurism Are Not In This Case

Plaintiffs expressly and repeatedly admitted to this Court, defendants, third parties, and

courts around the country that the claims set forth in the 2CAC did not (1) arise out of, or seek

compensation for, revenues earned by the NCAA or its members from the live broadcast or (2)

challenge the NCAAs amateurism rules. This Court, other courts, defendants and third parties

all relied on these admissions. It is far too late for plaintiffs to back away from them now.

Plaintiffs judicial admissions regarding live broadcast. Plaintiffs repeatedly told this

Court that their claims do not emanate from the live broadcasts of NCAA basketball or football

games, Ex. 1, Big Ten Hrg. at 14:22, and that they don't claim rights to be compensated for

appearing in live broadcasts or playing on the field. Id. at 15:21-22. Plaintiffs made similar

representations in pleadings filed with courts around the country:

Raycom is correct in that Plaintiffs damages claims are related to the rebroadcast, ratherthan the live broadcast, of games. (Compl. 420-427.) Ex. 3, Pls. Reply Mem. of Law in

Supp. of Mot. to Compel Produc. of Doc. by Non-Party Raycom Sports, OBannon v.Raycom, No. 3:11-mc-00198-RJC-DSC (W.D.N.C. Feb. 3, 2012), Dkt. 8 at 2.

Plaintiffs do not challenge the propriety of any sports broadcast or account and do notclaim that BTN is required to pay Plaintiffs or obtain their consent. Ex. 4, Pls. ReplyMem. in Supp. of Mot. to Compel Produc. of Doc. from Big Ten Network, In re NCAA,

20Counsel for plaintiffs described have this as an input market as to whether or not athletes

who are not yet students have been restrained by NCAA policies, bylaws, rules, regulations andinterpretations. Ex. 6, Tr. of Case Management Conference, 19:1:4.



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No. 4:11-mc-80300-cw (N.D. Cal. Feb. 1, 2012) (Cousins, M.J.), Dkt. 49 at 5.21

Plaintiffs do not challenge the legality of televising college sports and do not seek (asthe Big Ten acknowledges) to be paid for such broadcasts. Ex. 5, Pls. Reply Mem. inSupp. of Mot. to Compel Produc. of Doc. from Big Ten,In re NCAA, No. 4:11-mc-80300-CW (N.D. Cal. Feb. 1, 2012) (Cousins, M.J.), Dkt. 48 (Feb. 1, 2012) at 5-6.

Plaintiffs do not challenge the use of their identities in connection with the televisingof college sports and do not seek to be paid for such broadcasts. Ex. 7, Pls. Reply Mem.in Supp. of Mot. to Compel Non-Party Atlantic Coast Conference to Produc. Doc. inResp. to Subpoena Duces Tecum,In re NCAA, No. 1:11-mc-00063-UA-LPA (M.D.N.C.Dec. 16, 2011), Dkt. 10 at 4.

Plaintiffs attempt to file a CCM based overwhelmingly on the notion that live broadcasts of

NCAA sporting events are the product of an illegal conspiracy, CCM at 23 n.20 (citing Noll 95-

96, 89-90); Noll Appx. C-A1, C-A14, must be rejected in light of plaintiffs prior, emphatic

assurances that they were not pursuing such a claim.

Plaintiffs judicial admissions regarding amateurism. Plaintiffs similarly assured this

Court that this case was not about amateurism. Plaintiffs denied that this case involved any

challenge to the NCAAs amateurism rules when they opposed the NCAAs initial motion to

dismiss, claiming instead that their theory was limited to injuries suffered by citizens not subject

to NCAA governance. Ex. 2, OBannon Opp. at 3; cf., 268 (making same allegations). They

said the same thing to Magistrate Judge Cousins earlier this year, claiming that [w]e dont claim

rights to be compensated for appearing in live broadcasts or playing on the field, the amateur

principles that have been so hallowed. Ex. 1, Big Ten Hrg. at 15:15-2 (emphasis added).

Indeed, in past disputes over the scope of discovery, plaintiffs argued that the concept of

amateurism is at issue in this case not because the allegations of the 2CAC are sufficient to

make it so, but rather because the NCAA supposedly placed amateurism at issue in its

Answer and discovery responses.22 Plaintiffs repeated reliance on the NCAAs answer, rather

than the 2CAC, for the relevance of amateurism to this case is a clear admission that the 2CAC

21 See also id. at 1 (Plaintiffs claims arise from, inter alia, the re-broadcast and re-use ofarchival game footage); 2 (The value of these rights i.e. rights to re-broadcast or re-use afterthe live season is at the core of this case.); 6 (stating that the uses at issue are the licensingand use of archival footage and rebroadcasts of sporting events.).22

Pls. Reply Br. in Supp. of Mot. to Compel Dep. of NCAA Pres. Mark Emmert, Dkt. 375at 5; see also Antitrust Pls. Mot. to Designate as Available for Use Prior Dep. Test. ofUnavailable Former NCAA Exec. Dir. Walter Byers, Dkt. 350 at 2.



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fails to state a challenge to the NCAAs amateurism rules.23

Nor did the NCAA somehow amend

the 2CAC when it filed its affirmative defenses; the NCAA has always made clear that its

affirmative defenses relate only to the NCAA Bylaws specifically identified in the 2CAC, and as

a matter of law an answer cannot amend a complaint.24

ARGUMENT

The Court has ample authority under Federal Rules of Civil Procedure 15, 16, and 23, as

well at the Courts inherent power over its docket, to strike plaintiffs CCM. There are severa

reasons why the Court should do so.

I. The Court Should Strike the CCM Because It Deviates Materially From the 2CAC

The 2CAC should be stricken because its proposed class definition, liability theory and

damages theory are materially different from, and not supported by, the allegations of the 2CAC

Plaintiffs may not expand the class beyond the claims that they plead in their operative

complaint without first seeking leave to amend the complaint. Plascencia v. Lending 1st Mortg.

No. C 07-4485 CW, 2012 WL 253319, at *3 (N.D. Cal. Jan. 26, 2012) (Wilken, J.); see also

Evans v. IAC/Interactive Corp., No. CV051104DSFCWX, 2007 WL 7086261, at *3 (C.D. Cal

Mar. 14, 2007) (requiring plaintiffs to seek leave to amend complaint where new theories were

raised in motion for class certification);Munoz v. Giumarra Vineyards Corp., No. 1:09-cv-00703-

AWI-JLT, 2012 WL 2617553, at *17 (E.D. Cal. July 5, 2012) (refusing to consider new theories

in class certification motion not pled in complaint and not appearing in the testimony of proposed

class representatives); Brown v. Am. Airlines, Inc., No. CV 10-8431 AG (PJWx), --- F.R.D. ---

2011 WL 9131817, at *13 (C.D. Cal. Aug. 29, 2011) (Class certification is not a time for

asserting new legal theories that were not pleaded in the complaint). Indeed, granting a motion

for class certification based on claims not pled in the operative complaint is an abuse of

discretion. Anderson v. U.S. Dept of Hous. and Urban Dev., 554 F.3d 525, 529 (5th Cir. 2008).

23 Plaintiffs made similar representations to the NCAA in meet and confers, claiming thatamateurism was relevant not because plaintiffs complaint challenged amateurism but because theNCAA had raised it as a defense. Ex. 8, 2/14/12 Letter from R. Wierenga to R. Steiner; Ex. 9,2/15/12 Letter from R. Steiner to R. Wierenga.24

Marchiafava v. Gonzalez, La. Police Dept, No. 06-414-RET-CN, 2008 WL 2437526, at*1 n.1 (M.D. La. June 16, 2008); see also Burns v. City of Dallas, No. 3:94-CV-2770-R, 1999WL 47237, at *3-*4 (N.D. Tex. Jan. 22, 1999).



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The CCM clearly expands the class beyond what plaintiffs have pled in the 2CAC. The

CCM significantly expands the class definition. See supra at 3-6. It significantly changes, and

expands, the class liability theory. Id. at 6-7. It radically changes the products supposedly a

issue, and radically expands the damages sought by the class. Id. at 7-9. And it introduces two

entirely new alleged relevant markets, while apparently casting aside the only relevant market

previously alleged. Id. at 9-10. Plaintiffs could not make these sweeping changes without firs

seeking leave to amend the 2CAC. Plascencia, 2012 WL 253319 at *3. Since they have failed

indeed, refused to do so, the CCM should be stricken.

Striking the CCM is especially appropriate here because it is obviously too late for

plaintiffs to seek leave to amend the 2CAC. Leave to amend is not to be granted automatically,

especially in circumstances like this one. See, e.g., Jackson v. Bank of Hawaii, 902 F.2d 1385

1387 (9th Cir. 1990). Late in discovery, complaint allegations can only be amended after seeking

leave of court, and the court may deny such a motion if permitting an amendment would

prejudice the opposing party, produce an undue delay in the litigation, or result in futility for lack

of merit. Id. Amendments that create delay and further expense prejudice defendants who are

entitled to rely on a timely close of discovery. McGlinchy v. Shell Chem. Co., 845 F.2d 802, 809

(9th Cir. 1988). A moving party also should not be allowed to amend a complaint where they

knew or should have known the facts and theories raised by the amendment in the original

pleading.25Jackson, 902 F.2d at 1388; see also McGlinchy, 845 F.2d at 809 (affirming denial of

leave to amend where leave not sought until six months after plaintiffs were aware of the new

claims). Trial courts should also not grant leave to amend a complaint when the proposed

amended complaint would be futile.26

Jackson, 902 F.2d at 1387, 1388 n.4.

25 When a district court has previously granted leave to amend, its discretion to deny asubsequent motion is particularly broad, especially when the facts supporting the second motionto amend were available to the movant before the first amendment. Chodos v. West Publg Co.,292 F.3d 992, 1003 (9th Cir. 2002). Additional amendments should not be granted to curedeficiencies by amendments previously allowed. McGlinchy, 845 F.2d at 809-10.26 For example, it is futile to amend a complaint if the proposed amendment would result insummary judgment against the moving party. SeeJackson, 902 F.2d at 1388 n.4, 1391 n.9(noting that even an amended complaint could suffer from legal insufficiency and merely result inextended waste leading back to the same dispositive result). Plaintiffs new theories are notsupported by legal precedent. See infra at Section IV.



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The extraordinary differences between plaintiffs 2CAC and their CCM show that the

CCM violates both sets of principles. It deviates materially from allegations of the 2CAC, and

relies on legal theories expressly disavowed by plaintiffs (live broadcast) and rejected by the

Court (defendants supposed horizontal agreement). Plaintiffs could not demonstrate any good

reason why they waited to pursue their new theory, and defendants clearly have been prejudiced

by the delay.27 For this reason, the CCM should be stricken.

II. The Court Should Strike The CCM Because Its Attempt To Set Forth A Horizonta

Theory Of Liability Is Contrary To Law Of The Case

The CCM relies, indeed depends, on their new claim that the restraint they are challenging

is a horizontal agreement between NCAA not to pay current and former student-athletes for their

appearance in live and archival sports broadcasts. Seesupra at 6-7. Plaintiffs attempt to certify

a class based on this kind of horizontal liability theory ignores this Courts prior orders, which

held that the OBannon complaint (and by extension the 2CAC) failed adequately to allege the

existence of a horizontal agreement among NCAA members with respect to plaintiffs. That

holding is now law of the case, and should not be disregarded. In re Geneva Towers Assoc., No

C-93-2390 CW, 1994 WL 124840, at *1 (N.D. Cal. Mar. 30, 1994) (Wilken, J.) (Under the

doctrine of the law of the case, this Court is generally precluded from reconsidering an issue

that has already been decided by the Court in the same case.); Chavez v. Bank of Am. Corp., No

C-10-0653 JCS, 2012 WL 1594272, at *5-6 (N.D. Cal. May 4, 2012) (Spero, M.J.) (collecting

cases and finding that prior determination was law of the case). As such, and having not amended

their pleadings, plaintiffs cannot seek to certify a class based on theories the Court has already

rejected as insufficiently pled. Evans, 2007 WL 7086261 at *3. Plaintiffs CCM, which seeks to

certify a class that is dependent on a rejected theory, should be stricken.

III. The Court Should Strike the CCM Because Plaintiffs Are Judicially Estopped fromPursuing The Surprise Liability Theory Set Forth Therein

The CCM should also be stricken because it relies on theories and allegations that

plaintiffs are judicially estopped from pursuing. For three years, plaintiffs told this Court and

27 See Wierenga Decl. at 15-18 (detailing burden that NCAA has incurred in connectionwith taking and providing discovery on plaintiffs now-abandoned perpetual release theory).



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others that their claims do not stem from live broadcasts of current student-athletes, that the

restraint challenged was the effect of certain forms administered by the NCAA on former student-

athletes, and that the relevant market was the so-called collegiate licensing market. Plaintiffs

benefited greatly from the representations, inducing this Court and others to disregard arguments

that defendants and third parties made regarding the legal infirmities in plaintiffs claims.

Now, plaintiffs have dramatically and inconsistently revised their claims. The doctrine o

judicial estoppel precludes plaintiffs attempt to play[] fast and loose with the courts, and

protects the dignity of judicial proceedings by holding plaintiffs to their arguments and

allegations. Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001); see also

Helfand v. Gerson, 105 F.3d 530, 535 (9th Cir. 1997).

A. Judicial Estoppel Precludes Inconsistent Positions for Litigation Advantage

The Ninth Circuit recently explained:

[J]udicial estoppel generally prevents a party from prevailing in one phase of acase on an argument and then relying on a contradictory argument to prevail inanother phase. It is an equitable doctrine invoked not only to prevent a party fromgaining an advantage by taking inconsistent positions, but also because of generalconsiderations of the orderly administration of justice and regard for the dignity ofjudicial proceedings, and to protect against a litigant playing fast and loose withthe courts.

Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983, 993 (9th Cir. 2012)

(internal citations omitted).

The United States Supreme Court has identified three factors that courts should consider

in applying the doctrine:

First, a party's later position must be clearly inconsistent with its earlier position.Second, courts regularly inquire whether the party has succeeded in persuading acourt to accept that party's earlier position, so that judicial acceptance of aninconsistent position in a later proceeding would create the perception that eitherthe first or the second court was misled.... A third consideration is whether theparty seeking to assert an inconsistent position would derive an unfair advantageor impose an unfair detriment on the opposing party if not estopped.

Id. at 994 (quotingNew Hampshire v. Maine, 532 U.S. 742, 75051). Additionally, chicanery or

knowing misrepresentation by the party to be estopped is a factor to be considered in the judicial

estoppel analysis but is not an inflexible prerequisite to its application. Id. at 995.



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B. Plaintiffs Current Liability Theory Is Inconsistent With Earlier Positions

The class liability theory set forth in the CCM is wholly inconsistent with the allegations

of the 2CAC and plaintiffs prior representations.28

Baughman, 685 F.3d at 1133; Khan v. S&C

Elec. Co., No. 3:11-cv-03621, 2012 WL 4062811, at *10 (N.D. Cal. Sept. 14, 2012) (Spero,

M.J.).

Live Broadcast. Prior to the class certification motion, plaintiffs repeatedly represented to

this Court, and courts across the country, that they do not claim injury or damages related to the

live broadcast of NCAA athletics. They stated that their claims did not emanate from live

broadcasts, that they did not seek to be paid for live broadcasts, and that archival rights and

rebroadcasts were at the core of this case. Seesupra at 7-8 & n.16. The liability and damages

theories set forth in the CCM, in contrast, rely overwhelmingly on the notion that plaintiffs and

the class have been damaged by illegal behavior related to live broadcasts. CCM at 1-2; Noll a

37-45, 95-108. Plaintiffs should be estopped from making such a significant reversal in their

theories. Baughman, 685 F.3d at 1133.

Forms versus Bylaws. The 2CAC alleges that the defendants conspired to use NCAA

forms supposedly signed by former student-athletes while they were still in school to boycott

plaintiffs from being paid in connection with the commercial exploitation of their images,

likenesses and/or name following their cessation of intercollegiate athletic competition. 9.29

This theory was entirely based on the ability of former student-athletes to engage in commercial

activities after they ceased NCAA participation. Plaintiffs specifically disavowed any claims

related to current student athletes or amateurism, stating that their claims did implicate questions

of amateurism. Ex. 2, OBannon Opp. at 3 (emphasis in original); cf. 2CAC, 268.

The CCM, in contrast, claims that NCAA amateurism and eligibility rules constitute a

28 Whether these representations are factual or legal is irrelevant; judicial estoppel applieseither way. Baughman v. Walt Disney World Co., 685 F.3d 1131, 1133 (9th Cir. 2012).29 See also Antitrust Plaintiffs Opp. to Def. EAs Mot. to Dismiss Second Am.Consolidated Compl., Dkt. 335 at 12 (The [2CAC] alleges conduct by EA that furtheredDefendants ongoing conspiracy to exclude former student athletes from the collegiate licensingmarket and deny them compensation for the commercial exploitation of their names, likenessesand images.), 13 ([The 2CAC] identifies agreements between EA and NCAA/CLC, includingagreements to abide by the NCAAs Bylaw 12.5.1.1 and agreements to exploit the names, imagesand likeness of student-athletes without compensation.).



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horizontal agreement not to compete for current student-athletes. CCM at 4. Plaintiffs have

gone far past the forms conspiracy of the complaint and now attack the principle of

amateurism, including an apparent attack on several NCAA Bylaws not mentioned in the 2CAC.

Id. at 5, n.4; see also Wierenga Decl. at 7-9. They should be estopped from making this

fundamental change in their liability theory at this late date.

Market Definition. From the beginning, plaintiffs have told the Court that their relevant

market was the collegiate licensing market, Ex. 2, OBannon Opp. at 18. Plaintiffs made

similar representations to courts across the country on their motions to compel third-party

documents.30

Now, plaintiffs rely on two new relevant markets: the student-athlete Division I college

education market and the market for the acquisition of group licensing rights for the use of

student-athletes names, images and likeness in the broadcasts or rebroadcasts of Division I

basketball and football games and in videogames featuring Division I basketball and football.

CCM at 18. Both of these markets are clearly inconsistent with plaintiffs prior representations

The college education market is not the same as the collegiate licensing market. The group

licensing market is likewise inconsistent with the collegiate licensing market. The market

previously identified by plaintiffs included both individual and group rights, did not include live

or first broadcasts of games, was not limited to Division I basketball and football games, and

included photographs and other merchandise. The group licensing market differs in all these

material aspects.

C. Plaintiffs Succeeded In Persuading Courts To Accept Their Earlier Position

Plaintiffs persuaded this and other courts to accept their prior representations. If this

Court accepts plaintiffs new positions, it would create the perception that either those prior

courts or this Court was misled. Milton H. Greene Archives, 692 F.3d at 993-94.

Live Broadcast. This Court and others relied on plaintiffs prior representations. A

30 See Ex. 10, Mem. in Supp. of Pls. Mot. to Compel Non-Party Atlantic Coast Conferenceto Produc. Doc.,In re NCAA, No. 1:11-mc-00063-UA-LPA (M.D.N.C. Dec. 16, 2011), Dkt. 3 at12 (stating that the Collegiate Licensing Market is the defined relevant market in this case);Ex. 11, Pls. Mem. of Law in Supp. of Their Mot. to Compel Produc., In re NCAA, No. 1:11-mi-00129-WSD (N.D. Ga. Dec. 13, 2011), Dkt. 1-1 at 17 (same).



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the hearing on plaintiffs motions to compel document production by the Big Ten Conference,

Big Ten Network, and Fox, this Court said:

So the basis of my tentative ruling is not that I think the copyright act precludesdiscovery. I'm more focused on the relevance of the documents sought. I supposeif I interpreted the plaintiffs' claims differently and I thought the very basic claim

they're asserting is one emanating from the live broadcast of sporting events andthat if somehow they would get that discovery, it would make this more of acopyright case than an antitrust case, then I think those issues would be as live .But I don't view that issue as controlling my analysis here.

Ex. 1, Big Ten Hrg. at 11:14-23 (emphasis added). Plaintiffs were therefore able to avoid

argument on copyright preemption, and the effect of California Civil Code 3344(d) (which

expressly states that live sports broadcasts do not violate individuals rights of publicity), by

telling the Court that live broadcasts were not part of their case and that only rebroadcasts were at

issue.

Plaintiffs made similar representations to other courts, which likewise relied on plaintiffs

claims that live broadcast was not in the case. See supra at 10-11. Courts ordered third parties to

produce all documents responsive to Request 1 that relate to the rebroadcastof any portion of

Division I football or basketball games.31 Others relied on this Courts decision on the Big Ten

motion to compel in directing the ACC, SEC and SWAC to make productions. 32 Those courts

like this Court, were misled by plaintiffs.33 See Hersh v. Natl Found. Life Ins. Co., No. C-11-

03289 EDL, 2012 WL 381173, at *5 (N.D. Cal. Feb. 6, 2012) (Laporte, M.J.).

Forms versus Bylaws. The Court relied on and repeated plaintiffs allegations about the

nature of the defendants alleged conspiracy: Plaintiff claims that, among other things, Form 08-

3a and Article 12.5.1.1 enable the NCAA and CLC to enter into licensing agreements with

31Ex. 12, Mem. and Order,In re NCAA, No. 3:11-mc-00198-GCM-DSC (W.D.N.C. Feb.

16, 2012), Dkt. 12 at 4 (emphasis added).32 Ex. 13, Mem. Opinion and Order,In re NCAA, No. 1:11-mc-00063-UA-LPA (M.D.N.C.Dec. 16, 2011), Dkt. 16 at 3, 9; Ex. 14, Order, OBannon v. Southeastern Conference, No. 2:11-mc-04184 (N.D. Ala. June 15, 2012), Dkt. 27 at 2-10, 12-13.33 This Court also ordered Turner to renew negotiations with plaintiffs in light of the BigTen decision. Ex. 15, Order Den. Motion to Compel Produc. of Doc. by Nonparty,In re NCAA,No. 12-mc-80027-CW (NC) (N.D. Cal. Feb. 28, 2012), Dkt. 12 at 1. Turners reliance alsosupports estoppel. Baughman, 685 F.3d at (9th Cir. 2012). See also Ex. 16, Order,In re NCAA,No. 2:11-mc-189-AVC (D. Conn. Sept. 28, 2012) (characterizing plaintiffs claims as foreclosurefrom compensation for the commercial use of the plaintiffs names, images and likenesses aftertheir days of college sports.).



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companies, such as EA, that distribute products containing student-athletes images, likeness and

names, even after the student-athletes have ended their collegiate athletic careers.34 This Cour

relied on plaintiffs claims that they were not challenging amateurism and were not asking for

payments (even if deferred) for current student-athletes when it agreed with EA that agreeing to

compensate current students would be futile, even if no money changed hands initially, because

such an agreement would destroy those students eligibility to compete as student-athletes.

Order Den. EAs Mot. to Dismiss, Dkt. 345 at 7. The Court relied on plaintiffs representations

that the forms, and not amateurism or the bylaws as a whole, were the restraint at issue.

Market Definition. This Court relied on OBannons characterization of the market as the

collegiate licensing market in its conclusion that OBannon had adequately pled a relevant

market. Order on NCAAs and CLCs Motions to Dismiss, Dkt. 151 at 10. Plaintiffs have no

evidence that the courts hearing its motions to compel did not similarly rely on such

representations. See Hersh, 2012 WL 381173 at *5.

This Court and other federal courts accepted plaintiffs prior representations. If the Court

were to now accept their current inconsistent claims, it would create the perception that either the

prior courts or this Court had been misled. Plaintiffs must therefore be estopped from asserting

their revised claims.D. Plaintiffs Would Derive An Unfair Advantage Or Impose An Unfair

Detriment on Defendants If Not Estopped

If plaintiffs are not estopped, they will derive an unfair advantage or impose an unfair

detriment on the defendants. See Baughman, 685 F.3d at 1134 (allowing plaintiff to claim that

34 Ex. 17, Order Den. Def. NCAA and CLCs Mot. to Dismiss,Russell v. NCAA, No. 4:11-cv-04938-CW (N.D. Cal. May 16, 2012), Dkt. 21 at 3.

See also Ex. 1, Big Ten Hrg. at 7:9-12, 19-21 (If the purpose here were to have a hearingon amateurism in athletics, then the relevance would be very, very broad, and every one of thematerials that is sought by the plaintiffs would be relevant to that purpose. That's not thepurpose of this proceedings. We are looking at the scope of discovery arising from an antitrustvertical restraint of trade allegation.); Order Den. Electronic Arts Inc.s Mot. for J. on thePleadings, Dkt. 455 at 7 (Antitrust Plaintiffs allege that Defendants required student-athletes tosign NCAA Form 08-3a, or a form similar to it and that in this form, student-athletes wererequired to give NCAA and third parties acting on its behalf the right to use their name orimage.); Order on NCAAs and CLCs Mot. to Dismiss, Dkt. 151 at 3 (OBannon claims that,among other things, Form 08-3a and Article 12.5.1.1 enable NCAA to enter into licensingagreements with companies that distribute products containing student athletes images.).



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shed never used a wheelchair (contrary to prior assertions) would make her claim stronger and

give her an unfair advantage over her opponent.) Defendants have litigated these claims for three

years, believing plaintiffs claims to be the ones that plaintiffs have repeatedly articulated both to

the courts and to defendants. Instead, plaintiffs waited until the end of discovery to announce

their inconsistent new claims.

The unfair detriment posed by plaintiffs last-minute changes to their class definition and

liability theory is compounded by their failure to take, or provide, proper discovery. See Jackson

902 F.2d at 1387 (finding prejudice where amended complaint filed late in the case would require

additional discovery on different legal theory and facts).

Defendants would be sorely prejudiced if plaintiffs were permitted to go forward with

their new antitrust theories. There has been no discovery taken, and there is no evidence in the

record, on plaintiffs live broadcast theories, which account for overwhelming percentage of

claimed class damages. See Noll Appx. C-A1, C-A14. This is also true for plaintiffs new

allegations that various NCAA rules meant to preserve the NCAAs brand of intercollegiate

athletics, as embodied in various amateurism and eligibility rules, are restraints of trade.

Instead, defendants have taken and provided discovery on the theories pled in the 2CAC.

Defendants have spent millions on discovery. Permitting plaintiffs to fundamentally change

theories would be unfair, given significant time and money spent by defendants in making

discovery on topics that plaintiffs no longer intend to pursue on behalf of the class, like (a)

NCAA forms, (b) photographs, (c) trading cards, (d) action figures, and (e) the post-eligibility

collegiate licensing market.

Defendants will suffer an unfair detriment if they are forced to defend a class certification

motion based on legal claims that have obvious legal problems, but were never tested by a motion

to dismiss because plaintiffs refused to disclose those claims in any of their complaints

Plaintiffs new theory consists of little more than the blanket assertion that NCAA financial aid

and eligibility rules are, ipso facto, violations of the Sherman Act. See, e.g., CCM at 7-9, 19-21

The law is decisively to the contrary: it has been settled for decades that NCAA eligibility rules

do not violate the antitrust laws. Almost thirty years ago, the Supreme Court held that [i]t is



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reasonable to assume that most of the regulatory controls of the NCAA are . . . procompetitive

because they enhance public interest in intercollegiate athletics, and specifically cited NCAA

rules that prevented athletes from being paid as an example of those clearly procompetitive rules

Bd. of Regents, 468 U.S. at 117, 101-02. The Seventh Circuit declared just a few months ago tha

most if not all NCAA eligibility rules are procompetitive as a matter of law, finding that

eligibility rules are clearly necessary to preserve amateurism and the student-athlete in college

football and define what it means to be an amateur or a student-athlete, and are therefore

essential to the very existence of the product of college football. Agnew v. NCAA, 683 F.3d 328

343 (7th Cir. 2012). The court found the same was true for bylaws eliminating the eligibility of

players who receive cash payments beyond the costs attendant to receiving an education. Id

Plaintiffs new theory of class recovery depends entirely on the notion that putative class

members have been illegally restrained from bargaining for cash payments beyond the costs

attendant to receiving an education a restraint that clearly protects amateurism and thus

fall[s] comfortably within the presumption of procompetitiveness afforded to certain NCAA

regulations. Id. at 343. That new theory is clearly defective as a matter of law.

Similarly, defendants haven been denied an opportunity to demonstrate that plaintiffs

new claims to shared revenue from live broadcasts are barred by the First Amendment, the

doctrine of copyright preemption and related doctrines. See Hersh, 2012 WL 381173 at *5. The

Court has previously refused to address these issues because they were not necessarily raised by

liability theory pled in complaint. Ex. 1, Big Ten Hrg. at 11:14-23.

For all of these reasons, plaintiffs will derive an unfair advantage and impose an unfair

detriment on the defendants if the Court does not strike the CCM.

E. Plaintiffs Have Engaged in Chicanery

While not an inflexible prerequisite or element of the doctrine of judicial estoppel, the

Ninth Circuit has held that chicanery or knowing misrepresentation by the party to be estopped

is a factor to be considered. Milton H. Greene Archives, 692 F.3d at 995. Here, plaintiffs have

always known that their articulated claims did not include current student-athletes or amateurism

Plaintiffs said at much at the very first motion to dismiss hearing three years ago:



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[Mr. Hausfeld]: One, there is no question that the NCAA and its memberinstitutions prohibit any student athlete to receive anycompensation while they are a student athlete in any form otherthan their scholarship. Thats clear. They enforce that rulethrough all their member institution.

The Court: Are you complaining about current students?

Mr. Hausfeld: Thats an interesting issue. I might, but not necessarily rightnow

Ex. 18, Tr. of Oral Arg., In re NCAA, No. 09-1967 (N.D. Cal. Dec. 17, 2009) at 59:15-24. This

Court clearly relied on plaintiffs various admissions in its several rulings. Plaintiffs never asked

to amend their complaint to include the new claims of current student-athletes for compensation

for live broadcasts. Their attempt to introduce these claims in the CCM is not a result of mistake

or inadvertence but a calculated decision to abandon the claims the parties have spent the last

three years litigating.35 Plaintiffs must be estopped from presenting these new claims.

IV. Neither Plaintiffs, Nor The Putative Class, Will Be Prejudiced By Striking The CCM

Plaintiffs will not be prejudiced if the class certification papers are stricken. Defendants

are only asking for the CCM to be stricken. They are not asking, at this time, that the named

plaintiffs claims be limited or dismissed. If the Court grants the motion to strike, Plaintiffs could

proceed on their individual claims without prejudice. See Coopers & Lybrand v. Livesay, 437

U.S. 463, 467 (1978) (An order refusing to certify, or decertifying, a class does not of its own

force terminate the entire litigation because the plaintiff is free to proceed on his individual

claim.). Indeed, if the new theory goes forward, the named plaintiffs will be prejudiced by

additional discovery and motion practice, the costs associated with prolonged litigation, and by

the additional time that it will take to have their claims adjudicated. Because no named plaintiff

has alleged that he is a member of the live broadcast class, new named plaintiffs would have to be

added to represent the new live broadcast damages class. That process will protract this litigation

35 In July 2011, the NCAA wrote a letter confirming plaintiffs counsels statement thatplaintiffs were not asserting claims [or] seeking damages based on the original broadcasts ofNCAA sponsored championship sporting events and that they did not claim that the initialbroadcasts constitute a violation of the Sherman Act. Ex. 19, 7/15/11 Letter from G. Curtner toJ. King at 10. Plaintiffs never disagreed.

Now, in a statement to ESPN, plaintiffs counsel has bragged about changing their theorythis late in the case. Farrey, supra at 2.



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further without foreseeable benefit to the named plaintiffs, who are not a part of the live broadcast

damages class.

Absent class members also will not be prejudiced if the Court grants the motion to strike

No complaint has set forth live broadcast claims; accordingly, no absent class member could have

reasonably been relying on this case to vindicate those claims. Even if plaintiffs and absent class

members were to suffer prejudice if the motion to strike is granted, the prejudice defendants will

suffer by having to litigate an entirely new case after three years of fact-finding and motion

practice far outweighs any prejudice plaintiffs may claim.

V. The CCM Should be Stricken As To EA and CLC For Unique and IndependentReasons

The case plaintiffs now seek to pursue a claim based on alleged injury caused to curren

student athletes by the NCAA rules has absolutely nothing to do with EA or CLC. Neither EA

nor CLC adopted the NCAA rules; they had no power to change them; and, furthermore, they are

not in the business of television broadcasting. Not only were these claims were never pled

against EA or CLC, but it would have been futile to do so, because an outside partys compliance

with the rules set up by the NCAA and its members does not amount to illegal conspiratorial

conduct.

Plaintiffs theory against EA and CLC is premised on nothing more than the allegation

that EA and CLC are purportedly complicit in an alleged horizontal agreement among NCAA

schools simply because they have followed NCAA amateurism rules: The agreement [i.e.

conspiracy] is carried out through NCAA bylaws, which the NCAA requires its business

partners to follow . . . , and both EA and CLC had done so. CCM at 4, 6. Plaintiffs new rules-

conspiracy theory should be stricken as to EA and CLC for two fundamental and independent

reasons.

First, plaintiffs never alleged in the 2CAC (and never argued in defending it) that EAs or

CLCs adherence to NCAA rules constituted the evidence of its participation in the alleged

antitrust conspiracy. Indeed, plaintiffs survived EAs motion to dismiss the 2CAC by telling the

Court they had pled something more than just following the rules, i.e., that EAs agreement to



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compensate former student-athletes went beyond the requirements of NCAAs rules and

policies. Order Den. EAs Mot. to Dismiss, Dkt. 345 at 7 (emphasis added).

Second, because courts (including the Supreme Court) have uniformly held that the

NCAA amateurism rules are both legitimate and procompetitive,36 the allegation that EA and

CLC followed such rules, even if true, would only mean that EA and CLC abided by lawful rules

and regulations, which as a matter of law cannot provide a sufficient basis for an antitrust

conspiracy claim. See Bell Atlantic Co. v. Twombly, 550 U.S. 544, 553-54 (2007) (legitimate or

innocuous business activities, even if done through concerted actions, not subject to challenge

under antitrust laws); 49er Chevrolet, Inc. v. General Motors Corp., 803 F.2d 1463, 1467 (9th

Cir. 1986). The Ninth Circuit has made clear that merely doing business pursuant to the NCAA

rules does not constitute an antirust conspiracy. Kendall v. Visa U.S.A., Inc., 518 F.3d 1042

1048, 1049 (9th Cir. 2008) (rational, legal business behavior such as merely following the rules

set by another is insufficient as a matter of law to constitute a violation of Section 1 of the

Sherman Act.). This Court made the same observation when it dismissed the original CAC

against EA. Order Granting EAs Mot. to Dismiss and Den. CLCs and NCAAs Mot. to

Dismiss, Dkt. 325 at 9 (An account of a defendants commercial efforts is not, on its own,

sufficient to support a 1 claim) (quoting Kendall). If the mere agreement to follow a business

partners rules (here NCAAs rules) were sufficient to constitute an antitrust conspiracy, then

every single business partner of the NCAA and every current and former student-athlete, among

others, would be antitrust co-conspirators in the alleged conspiracy.

In short, because the theories asserted in the CCM were never pled against EA or CLC

and are contrary to settled law, the Court should strike the CCM as to EA and CLC.

CONCLUSION

The Court should not tolerate plaintiffs attempted surprise change from a post-eligibility

forms-based foreclosure from downstream merchandise markets case to a pay-for-play,

amateurism-based foreclosure from live broadcast revenue case. Plaintiffs should be held to their

36 See, e.g.,Agnew, 683 F.3d at 343;Bd. of Regents of Univ. of Okla., 468 U.S. at 101-02,117.



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representations and should not be rewarded for gamesmanship. Due process requires no less.

Respectfully submitted,

Dated: October 24, 2012 Schiff Hardin L

Documents

NCAA motion