NCAA Players Demand Docs From C-USA

8/3/2019 NCAA Players Demand Docs From C-USA

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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

____________________________________:

: Civil Action No: 4:09-cv-01967-CWIn re NCAA Student-Athlete Name : Pending in the United States District Courtand Likeness Licensing Litigation : for the Northern District of California

:

: Misc. No. ___________________

____________________________________:

PLAINTIFFS MOTION TO COMPEL PRODUCTION

OF DOCUMENTS BY NON-PARTY CONFERENCE USA

The Antitrust Plaintiffs, Ed OBannon et al., on behalf of themselves and all others

similarly situated, (hereinafter Movants) respectfully request that this Court enter an order

compelling non-party Conference USA to produce all documents responsive to Plaintiffs

properly served subpoena duces tecum. The grounds for this motion are fully set forth in the

accompanying Memorandum of Law in Support of Plaintiffs Motion to Compel Production of

Documents by Non-Party Conference USA and in the supporting Declaration of Bryan L.

Clobes, filed herewith.

WHEREFORE, Movants request that the Court enter an order compelling Conference

USA to produce all documents responsive to Plaintiffs subpoena duces tecum within ten (10)

days, holding Conference USA in contempt for its complete refusal to comply with the

subpoena, and awarding attorneys fees and expenses incurred in preparing and filing this

motion.

Case 3:11-mc-00138-D Document 1 Filed 12/07/11 Page 1 of 3 PageID 1


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Respectfully submitted,

/s/ James W. Holbrook, III

Thomas H. Cook, Jr.State Bar No. 00783869

James W. Holbrook IIIState Bar No. 24032426ZELLE HOFMANN VOELBEL &

MASON LLP

901 Main Street, Suite 4000

Dallas, TX 75202Tel: (214) 742-3000

Fax: (214) 760-8994

[email protected]@zelle.com

Bryan L. ClobesEllen Meriwether

CAFFERTY FAUCHER LLP

1717 Arch Street, Suite 3610

Philadelphia, PA 19103Tel: (215) 864-2800

Fax: (215) 864-2810

[email protected]

Jon T. KingHAUSFELD LLP

44 Montgomery Street

Suite 3400San Francisco, CA 94104

Tel: (415) 633-1908

Fax: (415) [email protected]

Michael D. Hausfeld

HAUSFELD LLP1700 K Street, NW, Suite 650

Washington, DC 20006

Tel: (202) 540-7200Fax: (202) 540-7201

[email protected]

COUNSEL FOR PLAINTIFFS



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CERTIFICATE OF CONFERENCE

I hereby certify that Plaintiffs counsel conferred with Dennis Palmer, counsel for

Conference USA, regarding the substantive matters presented in Plaintiffs Motion to Compel

Production of Documents by Non-Party Conference USA and Plaintiffs Supporting

Memorandum of Law. Despite counsels best efforts, the parties were unable to resolve the

matters presented herein.


James W. Holbrook, III

CERTIFICATE OF SERVICE

I hereby certify that on December 7, 2011, I caused a true and correct copy of the Motion

to Compel Production of Documents by Non-Party Conference USA, Plaintiffs Supporting

Memorandum of Law, and the Declaration of Bryan Clobes to be served on Counsel for non-

party Conference USA, by First Class U.S. Mail and electronic mail at the following address:

Dennis PalmerPOLSINELLI SHUGART

700 W. 47th Street, Suite 1000

Kansas City, MO 64112Tel: (816) 374-0593

Fax: (816) 817-0251

[email protected]

Counsel to Conference USA.

/s/ James W. Holbrook, IIIJames W. Holbrook, III



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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

____________________________________

:: Civil Action No: 4:09-cv-01967-CWIn re NCAA Student-Athlete Name : Pending in the United States District Court

and Likeness Licensing Litigation : for the Northern District of California:

:: Misc. No. ____________________

____________________________________:

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS MOTION TO COMPEL

PRODUCTION OF DOCUMENTS BY NON-PARTY CONFERENCE USA

Case 3:11-mc-00138-D Document 1-1 Filed 12/07/11 Page 1 of 28 PageID 4


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TABLE OF CONTENTS

TABLE OF AUTHORITIES...ii

I.

INTRODUCTION...1

II. LITIGATION BACKGROUND.....3III. SERVICE OF THE SUBPOENA AND MEET AND CONFER EFFORTS..6IV. ARGUMENT...8

A. Legal Standard.....9B. The Subpoenaed Documents Are Important and Relevant to Plaintiffs

Claims11

1. Media and Licensing Agreements and Related Revenue Reports AreHighly Relevant to the Antitrust Claims13

2. Exemplar Student Release Forms and the Documents ConcerningPolicies or Practices Regarding the Use of Student-Athletes Names,

Images and Likenesses Are Relevant to the Claims in the Litigation....15

3. Conference USAs Relevance Objections Are Unfounded16C. Plaintiffs Requests Do Not Unduly Burden Conference USA.18

1. The Request Relating to EA Is Not Unduly Burdensome...182. Conference USA Cannot Withhold Documents on the Basis of

Confidentiality.19

3. Conference USA Must Provide a Privilege Log..20D. The Court Should Find Conference USA in Contempt.21

V. CONCLUSION..21



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TABLE OF AUTHORITIES

Cases

Andrade v. Cooper/T. Smith Stevedoring Co.,No. 06-907-B-M2, 2009 WL 5178301 (M.D. La. Dec. 15, 2009) ............................................. 21

Canyon Partners , L.P., v. Developers Diversified Realty Corp. ,

No. 3-04-CV-1335-L, 2005 WL 5653121 (N.D. Tex. Nov. 4, 2005)......................................... 14

Coker v. Duke & Co.,

177 F.R.D. 682 (M.D. Ala. 1998)............................................................................................... 19

ESPN, Inc. v. Conference USA, 11-cv-02186-WHP, Dkt. No. 1-1 (S.D.N.Y. Mar. 30, 2011) ... 12

Hebert v. Lando,441 U.S. 153 (1979).................................................................................................................... 10

Hope for Families & Community Serv., Inc. v. Warren,

No. 3:06-cv-1113, 2009 WL 174970 (M.D. Ala. Jan. 26, 2009)................................................ 16

In re NCAA Student-Athlete Name & Likeness Litig.,

No. C 09-01967 CW, 2011 WL 1642256 (N.D. Cal. May 2, 2011)................................... 5, 6, 17

In re Student-Athlete Name & Likeness Licensing Litig.,No. C 09-01967 CW, Dkt. No. 320 (Mar. 7, 2011).................................................................... 19

Keybank Natl Assn v. Perkins Rowe Assocs., LLC,

Nos. 09-497-JJB-SCR, 10-552-JJB-SCR, 2011 WL 46300 (M.D. La. Jan. 6, 2011) ................ 20

McLeod, Alexander, Powel and Apffel, P.C. v. Quarles,

894 F.2d 1482 (5th Cir. 1990) .................................................................................................... 10

Merrill v. Waffle House, Inc.,

227 F.R.D. 467 (N.D. Tex. 2005) ............................................................................................... 10

OBannon v. Natl Collegiate Athletic Assn,

Nos. C 09-1967 CW, 2010 WL 445190 (N.D. Cal. Feb. 8, 2010) ........................................... 5, 6

Peacock v. Merrill,

No. 08-01-B-M2, 2008 WL 687198 (M.D. La. Mar. 10, 2008) ................................................. 20

Ponson v. BellSouth Telecommunications, Inc.,

No. 09-0149, 2010 WL 1552802 (E.D. La. Apr. 16, 2010)........................................................ 10



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SDT Indus., Inc. v. Pennington Seed,No. 10-0014, 2010 WL 2024735 (W.D. La. May 18, 2010) ................................................ 18, 19

SEC v. Brady,238 F.R.D. 429 (N.D. Tex. 2006) ..................................................................................... 9, 10, 18

Wiwa v. Royal Dutch Petroleum Co.,392 F.3d 812 (5th Cir. 2004) ................................................................................................ 10, 18

Rules

Fed. R. Civ. P. 26(b)(1)................................................................................................................... 9

Fed. R. Civ. P. 37(a)(1)................................................................................................................... 1

Fed. R. Civ. P. 37(a)(5)................................................................................................................... 1

Fed. R. Civ. P. 37(c)(1)................................................................................................................... 1

Fed. R. Civ. P. 45(c)(2)(B)(i)...................................................................................................... 1, 9

Fed. R. Civ. P. 45(d)(2)................................................................................................................. 20

Fed. R. Civ. P. 45(e) ................................................................................................................. 1, 21

United States District Court for the Northern District of Texas Local Civil Rule 37(a) ................ 1



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Movants (Plaintiffs), by their attorneys, respectfully request this Court to enter an Order

pursuant to Rule 37(a)(1) and Rule 45(c)(2)(B)(i) of the Federal Rules of Civil Procedure, and

United States District Court for the Northern District of Texas Local Civil Rule 37(a),

compelling non-party Conference USA to produce the documents requested in the subpoena

duces tecum served on August 14, 2011(the Subpoena). Moreover, given Conference USAs

refusal to make a meaningful production in response to the Subpoena, Plaintiffs also seek an

Order of Contempt requiring Conference USA to pay Plaintiffs expenses incurred in making

this motion, including attorneys fees, pursuant to Fed. R. Civ. P. 45(e), 37(a)(5), and 37(c)(1).

The grounds for this motion are set forth below and in the Declaration of Bryan L. Clobes

(hereafter Clobes Decl.) and corresponding evidentiary Appendix, filed herewith.

I. INTRODUCTIONPlaintiffs in the above-captioned action (the Antitrust Action) include basketball

legends Bill Russell and Oscar Robertson, UCLA basketball great Ed OBannon, and Conference

USA record-holding, University of Memphis quarterback Danny Wimprine, among others.

These Plaintiffs, on behalf of themselves and other current and former student athletes, allege

that Defendants National Collegiate Athletic Association (NCAA), and its for-profit business

partners, Collegiate Licensing Company (CLC), and Electronic Arts Inc. (EA) (collectively

Defendants) have violated the federal antitrust laws by conspiring to foreclose Plaintiffs and

class members from receiving compensation in connection with the commercial exploitation of

their names, images, and/or likenesses following their college playing days. (Compl. 9.)1

The

Complaint alleges that the NCAA, its members, and its for-profit business partners make billions

of dollars from the commercial exploitation of student athlete names, images and likenesses

1Compl. refers to the Second Consolidated and Amended Complaint (Dkt. No. 327) in the

consolidated action.



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through, among other things, television broadcasts and rebroadcasts, sales and rentals of DVD

game and highlight films, on-demand streaming and sales of games and clips, video games, and

other outlets. (Compl. 18.) Plaintiffs and other former players, whose names, images, and

likenesses are exploited, receive nothing in return and never will under the current regime. Id.

The Antitrust Action is pending in the United States District Court for the Northern District of

California before the Honorable Claudia Wilken.2

After the Court denied several rounds of dismissal motions, Plaintiffs began merits

discovery and served subpoenas on various non-parties, including Conference USA. (Clobes

Decl. at 2 [Appx. 1].) As described more fully below, among the documents sought by the

Subpoena issued to Conference USA are: (1) television or broadcast agreements covering mens

Division I football and/or basketball; (2) licensing agreements in which the license granted

includes rights to the names, images, or likenesses of student-athletes; (3) revenue or royalty

reports related to these contracts and agreements; (4) documents relating to EA Sports games; (5)

exemplar student athlete release forms and documents relating to policies regarding the use of

student athlete images and likenesses; (7) documents pertaining to trade association meetings at

which issues relevant to the litigation were discussed; (8) documents generated within the last

two years that relate to potential changes to the collegiate amateurism model, including

documents relating to NCAA proposal 2010-26 and to the 2011 NCAA Presidential retreat; and

(9) communications discussing or concerning the litigation or the various subpoenas issued.

(Clobes Decl. at 5 [Appx. 2]; Ex. C [Appx. 31-32].)

2Plaintiffs have also filed motions to compel in the Northern District of Illinois against non-

parties the Big Ten Conference and the Big Ten Network. The Judge presiding over these

motions ordered that the motions be transferred to Judge Wilken for her consideration. We

expect the order transferring these motions to be filed today and will supplement this motionwith a copy of the order once it becomes available.



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After more than two months of meet-and-confer discussions in which Plaintiffs expended

significant time and effort both reducing the scope of the document requests and explaining their

relevance, Conference USA has produced only one responsive document.3 (Clobes Decl. at 21

[Appx. 7].)

As discussed below, Conference USA is an integral source of information regarding the

antitrust claims involving the licensing, sale, and use of former student athletes names, images,

and likenesses. The NCAA, along with its member schools and conferences (including

Conference USA), worked with various third parties to monetize student athletes images by

selling, licensing, and marketing them to businesses, including various networks, and consumers,

thus creating and controlling a lucrative collegiate licensing market. (Compl. 11, 351.)

Conference USA, one of the nations most successful and visible athletic conferences, is a

premier participant in the collegiate licensing market and has derived enormous revenue directly

from the exploitation of former student athletes names, images and likenesses, through, among

other things, its broadcast and licensing agreements. Plaintiffs and proposed class members have

not been compensated for this business, even though the NCAA and its members, including

Conference USA, profit handsomely long after the players leave school. Conference USA

should be ordered to produce these responsive documents.

II. LITIGATION BACKGROUNDPlaintiffs in the consolidated Antitrust Action are various former college basketball and

football players who are pursuing claims on behalf of themselves and a class of all others

3 Conference USA has produced one document responsive to the eleven narrowed requests,

namely, the 2011-2012 Conference USA Membership Handbook. (Clobes Decl. 21 [Appx.8].)



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similarly situated.4

Defendant NCAA is an unincorporated association of colleges, universities,

and regional athletic conferences that governs collegiate athletics. Plaintiffs claims concern

practices and agreements related to NCAA mens Division I basketball and NCAA Football

Bowl Subdivision football (formerly known as Division I-A). Defendant CLC handles

NCAAs license agreements and Defendant EA develops, publishes, and distributes video games

featuring NCAA teams and athletes.

Plaintiffs claims are premised on the Defendants conspiracy to restrain trade in

violation of 1 of the Sherman Act. Plaintiffs allege that the Defendants and their named and

unnamed co-conspiratorsincluding NCAA member conferences like Conference USA

violated and continue to violate federal antitrust laws by conspiring to fix prices and engaging in

a group boycott/refusal to deal that has unlawfully foreclosed the class members from being

compensated in connection with the exploitation of their names, images, and/or likenesses

following the end of their college playing days. (Compl. 9, 175.)

The NCAA accomplishes its scheme in part by requiring all student athletes, as a

condition of their eligibility to compete in NCAA athletic events, to sign a form each year (such

as the Form 08-3(a) attached as Exhibit A to the Complaint) that purports to require each of them

to relinquish in perpetuity all rights to the commercial use of their images, even after they

graduate and are no longer subject to NCAA rules. (See, e.g., Compl. 23.) The release

language contained in these required forms is identical to NCAAs Bylaw 12.5.1.1.1, which

states:

4 The Complaint brings claims on behalf of two putative classes: an Antitrust Damages Class

consisting solely of former student athletes, and an Antitrust Injunctive Relief Class consisting ofboth current and former student athletes. See Compl. 8. The Antitrust Injunctive Relief Class

seeks to enjoin the NCAA (as well as its member conferences and schools) from enforcing the

rules and regulations that foreclose Plaintiffs from being compensated for the exploitation oftheir image and likeness after they have graduated. See id.



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The NCAA [or a third party acting on behalf of the NCAA (e.g.,host institution, conference, local organizing committee)] may use

the name or picture of an enrolled student-athlete to generally

promote NCAA championships or other NCAA events, activitiesor programs.

Id. 283 (bracketed text in original).

The release forms required by the NCAA to be used by all member schools and

conferences and executed by all student-athletes are then used by the NCAA and its members as

a basis to enter into agreements with licensees and broadcasters that purport to convey the rights

to utilize footage containing the images and likenesses of student athletes, thereby creating a

broad range of multimedia revenue streams for themselves. These contracts generate revenue to

Conference USA from, among other things, classic games shown on television networks, sales

and rentals of DVDs of game films sold by Conference USA and others, sales of on-demand

game films, stock footage for corporate advertisers, and video games. (See, e.g.,Compl.

161-65 (describing uses of Plaintiff Wimprines name and image)). The Complaint alleges that

the collegiate licensing market is dominated and controlled by the NCAA and its members,

through various licensing and other agreements. (Compl. 306-09.) The NCAA and its

members make billions from these arrangements while the former players make nothing.

In denying Defendants motions to dismiss, Judge Wilken confirmed that the Complaint

adequately alleges a conspiracy to restrain trade among the NCAA, its member schools and

conferences, and the Defendant licensees CLC and EA. See OBannon v. Natl Collegiate

Athletic Assn,Nos. C 09-1967 CW, 2010 WL 445190 (N.D. Cal. Feb. 8, 2010); In re NCAA

Student-Athlete Name & Likeness Litig., No. C 09-01967 CW, 2011 WL 1642256 (N.D. Cal.

May 2, 2011) [hereafter In re NCAA]. Specifically, she concluded that OBannon . . . pleads

agreements among NCAA, its members, CLC and various distributors of material related to



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college sports . . . [relating to] licenses to distribute products or media containing the images of

OBannon and other former student athletes. OBannon, 2010 WL 445190, at *3. Judge

Wilken also held that the allegations of the Complaint sufficiently support OBannons theory

that, after NCAA and its members obtain releases from student athletes, CLC brokers

agreements that do not compensate him or the putative class members for the use of their

images. Id.

Judge Wilken specifically acknowledged that Plaintiffs antitrust claims were not solely

predicated on licenses involving the use of image and likeness in video games. To the contrary,

she found that Plaintiffs 1 claims also encompass agreements for rights to televise games,

DVD and on-demand sales and rentals, and sales of stock footage of competitions, to name a

few. See, e.g., In re NCAA, 2011 WL 1642256, at *6 (citing Compl. 332-60) (emphasis

added). Judge Wilken further acknowledged that Plaintiffs allegations concerning the numerous

agreements entered into by the NCAA and its members, including agreements for the

broadcast of athletics events, support Plaintiffs allegations of a relevant product market

described as the collegiate licensing market. OBannon, 2010 WL 445190, at *5.

III. SERVICE OF THE SUBPOENA AND MEET AND CONFER EFFORTSOn August 14, 2011, Plaintiffs served a subpoena on Conference USA (the Subpoena)

requesting the production of various categories of documents. (Clobes Decl. at 2 [Appx. 1];

Ex. A [Appx. 10-25].) On August 26, 2011, Conference USA sent a letter to Plaintiffs counsel

setting forth its objections to the Subpoena. (Clobes Decl. at 3 [Appx. 2]; Ex. B [Appx. 27-

29].) In that letter, Conference USA objected to the requests and the definitions and instructions

on various bases, including undue burden, privilege, confidentiality, and relevance. (Id.)



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In an effort to address Conference USAs objections, Plaintiffs counsel, by e-mail dated

September 7, 2011, narrowed the categories of documents requested in the Subpoena. (Clobes

Decl. at 5 [Appx. 2]; Ex. C [Appx. 31-32].) The parties then met and conferred by telephone

on September 12, 2011. During this call, Plaintiffs clarified and explained their requests.

(Clobes Decl. at 6-8 [Appx. 2-3].) The parties again met and conferred by telephone on

September 22, 2011. During this call, the parties discussed each of the narrowed requests and

Plaintiffs counsel explained in detail the relevance of each request. (Clobes Decl. at 10

[Appx. 3].) Plaintiffs explained that broadcast and licensing agreements and related documents

are relevant because those are often the first place where rights to use image and likeness are

addressed and conveyed, and that it is usually NCAA members (like Conference USA), rather

than the NCAA itself, that enter these agreements and carry out the conspiracy. (Id.) The parties

next met and conferred by telephone on September 22, 2011 and October 4, 2011. (Clobes Decl.

at 10, 14-15 [Appx. 3, 5].) During both of these calls, Plaintiffs explained in detail the

relevance of the requested documents. Plaintiffs also followed-up with written correspondence

further detailing the relevance of these agreements. (Clobes Decl. at 12 [Appx. 4]; Ex. E

[Appx. 38-40].)

On October 21, 2011, in response to Conference USAs scope and burden objections,

Plaintiffs sent the conference a narrowed request regarding amateurism. (Clobes Decl. at 15

[Appx. 5]; Ex. G [Appx. 45].) The parties then met and conferred later that day. (Clobes Decl.

at 17 [Appx. 6]). During that call, Conference USAs counsel noted that the conference was

still considering whether to produce broadcast and licensing agreements. (Id. at 18 [Appx. 6].)

He noted, however, that the conference had decided to produce the other responsive, non-



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privileged documents requested by Plaintiffs. (Id.) Plaintiffs requested that the Conference put

its position in writing. (Id. at 18 [Appx. 6]; Ex. H [Appx. 47-50].)

Despite its expressed commitment to produce documents in several categories on

Plaintiffs Narrowed List, in a letter dated October 27, 2011, the conference abruptly reversed

course by refusing to produce any documents. (Id.) In addition to repeating its earlier

objections, it raised an entirely new objection to production; namely that the requested broadcast

and licensing agreements are not relevant because Plaintiffs claims are preempted by the

Copyright Act. (Id.)

In a November 3, 2011 letter, Plaintiffs counsel, addressed each of the conferences

objections and reiterated the points previously made during earlier calls and exchanges. (Clobes

Decl. at 20 [Appx. 6-7]; Ex. H [Appx. 53-57].) Among other things, Plaintiffs explained that

Conference USAs view of the merits of Plaintiffs claims provides no support for its refusal to

produce responsive, discoverable documents. (Id.) Plaintiffs noted that they remained open to

further discussions, but that those discussions would be fruitless if Conference USA persisted in

its position. (Id.)

On November 8, 2011, Conference USA responded by e-mail. (Clobes Decl. at 21

[Appx. 7]; Ex. J [Appx. 59-60].) In this e-mail, Conference USA continued to refuse to produce

its responsive documents with the lone exception of a 2011-12 C-USA Membership Handbook

that it attached to its e-mail. (Id.)

In response to this e-mail, Plaintiffs noted that Conference USA was still refusing to

produce almost all documents responsive to the Subpoena and that it continued to re-state

objections that Plaintiffs had already addressed on numerous occasions. Plaintiffs also noted that

the Texas Attorney General had recently considered and rejected similar claims of confidentiality



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made by the Big 12 (which is represented by the same lawyers as Conference USA) and the

University of Texas. (Id. at 23 [Appx. 7]; Ex. K [Appx. 62-64]; Ex. L [Appx. 66-74].) There

have been no further communications relating to the Subpoenas and Conference USA has not

produced any additional documents.

IV. ARGUMENTAs a result of the extensive meet-and-confer discussions, Plaintiffs narrowed their

document requests on the condition that Conference USA produce all responsive, discoverable

documents. (Clobes Decl. at 5 [Appx. 2]; Ex. C [Appx. 31-32].) These categories of

documents are: (1) handbooks or manuals relating to participation in college athletics (Request

1); (2) television or broadcast contracts between Conference USA and its broadcast partners

involving mens Division I football and/or basketball (Request 2); (3) licensing agreements in

which the license granted includes rights to content including the name, image, or likeness of

players competing (or who have competed in the past) in mens Division I Basketball or Football

(Requests 3, 4); (4) revenue and royalty reports relating to these contracts and agreements

(Request 5); (5) documents relating to EA Sports games (Request 8); (6) exemplar student

athlete release forms and documents specifically discussing policies regarding the use of student

athlete images and likenesses (Requests 6, 7); (7) documents pertaining to trade association

meetings at which issues relevant to the litigation were discussed (Request 10); (8) documents

generated within the last two years and that relate to potential changes to the collegiate

amateurism model, including documents relating to NCAA Proposal 2010-26 and the 2011

NCAA Presidential retreat (Requests 10, 11); and (9) documents concerning or referencing this

current litigation (Request 9). (Id.)



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As detailed above, Conference USA has refused to produce all responsive documents

besides one conference manual that is responsive to only one of Plaintiffs eleven narrowed

requests.

A. Legal StandardRule 45 of the Federal Rules of Civil Procedure, permits a party serving a Subpoena to

move the issuing court for an order compelling production . . . . Fed. R. Civ. P. 45(c)(2)(B)(i).

The scope of material available under Rule 45 falls within the broad scope of relevance as

defined under Fed. R. Civ. P. 26(b)(1). SEC v. Brady, 238 F.R.D. 429, 437 (N.D. Tex. 2006).

Thus, as with Rule 26, a party is entitled to discover any material, even evidence that would not

be admissible in trial, if the discovery appears reasonably calculated to lead to the discovery of

admissible evidence. Fed. R. Civ. P. 26(b)(1). Discovery under this permissive standard

should be considered relevant if there is any possibility that the information sought may be

relevant to the claim or defense of any party. SEC v. Brady, 238 F.R.D. at 437 (citingMerrill v.

Waffle House, Inc., 227 F.R.D. 467, 470 (N.D. Tex. 2005)); see also Ponson v. BellSouth

Telecommunications, Inc., Civil Action No. 09-0149, 2010 WL 1552802, at *1 (E.D. La. Apr.

16, 2010) (The discovery rules are accorded broad and liberal treatment to achieve their purpose

of adequately informing litigants in civil trials (citing Hebert v. Lando, 441 U.S. 153, 176

(1979)). The burden is on the party who opposes its opponents request for production to

show specifically how . . . each [request] is not relevant or how each [request] is overly broad,

burdensome or oppressive. Id. (citingMerrill, 227 F.R.D. at 377 (quotingMcLeod, Alexander,

Powel and Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990)).

Accordingly, [u]nless it is clear that the information sought can have no possible

bearing on the claim or defense of a party, the request for discovery should be allowed. Id.



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(emphasis added). A broad or permissive view of relevancy is not required here, however,

because the documents Plaintiffs seek from the Conference USA are highly relevant to the

Antitrust Claims.

Once the Court determines that the materials requested are relevant, the party opposing

production has the burden of proving that compliance with the subpoena would be unreasonable

and oppressive in such a way that it overrides the moving partys need for the documents and

the nature and importance of the litigation. Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812,

818 (5th Cir. 2004) (internal quotations omitted). The burden imposed on the party resisting

production of responsive, discoverable documents must be undue. Id. Because Plaintiffs need

for the requested documents is great and the claimed burden imposed on the Conference USA is

minor, this Court should grant Plaintiffs Motion to Compel.

B. The Subpoenaed Documents Are Important and Relevant to PlaintiffsClaims.

Conference USA is one of the most successful and visible conferences in college

athletics. Conference USAs popularity allows it to reap substantial profits from media

agreements with CBS Sports Network, FOX Sports Media Group, and the C-USA Digital

Network.5

One way that Conference USA capitalizes on its reputation is through the C-USA Digital

Network, an online, subscription-only digital network devoted solely to Conference USA

footage. In addition to live broadcasts, C-USA Digital Network subscribers can access archived

game footagethe value of which is derived directly from the names, images and likenesses of

5 About Conference USA, http://conferenceusa.cstv.com/ot/about-c-usa.html (last visited Nov.

9, 2011). C-USA enjoys significant television exposure through a multitiered selection processthat is rooted in partnerships with FOX Sports Media Group and CBS Sports Network.



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the former students who play for the various member schools.6

Conference USA also sells

photographs of classic game images through its online multimedia store. See C-USA Photos

Now For Sale!, http://conferenceusa.cstv.com/ot/c-usa-pictopia.html# (selling photographs of the

2007 C-USA Mens Basketball Championship Final, among others). Through these mediums,

among others, Conference USA appears to actively license content containing the name, image

and likeness of former athletes.

For example, in a contract entitled Rights Agreement publicly filed by ESPN in ESPN,

Inc. v. Conference USA,7 Conference USA grants ESPN exclusive and perpetual rights in the

footage of the Conference USA Division I football and basketball games throughout the

universe:

Exclusive Rights. ESPN has the exclusive, perpetual right todistribute, transmit, exhibit, license, advertise, duplicate, promote,

perform, telecast and: otherwise exploit (collectively, Distribute)

the Programs and their constituent elements and any othermaterial pertaining to the Events in ESPNs possession and control

throughout the universe, by all means and media now known

or subsequently developed, on a live and/or delayed basis,

without limitation as to the number of uses. ESPN also has the

right to make reproductions of the Programs and their constituentelements and to use, exhibit and deal with those productions in

any manner or media whatsoever, including but not limited to

the right to incorporate the Programs and/or their constituent

elements into other works for commercial profit, but not in a

manner that would constitute an endorsement of a third-party

product or service.

6 C-USA Network, Welcome Page, http://conferenceusa.cstv.com/allaccess/index-splash.html

(noting that a C-USA Network All Access Channel subscription includes Archived Non-

Televised Events, Scheduled Archived Television Events, Archived Classic Events,

Archived Non-Televised Championships, and Features/Specialty Pieces) (last visited Nov. 9,2011).7 11-cv-02186-WHP, Dkt. No. 1-1 (S.D.N.Y. filed Mar. 30, 2011) (the Agreement).



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Id. at 8 (emphasis added). These Programs clearly contain the name and image of former

conference players and the contract assigns the rights in the same to ESPN in perpetuity.

Moreover, in the Agreement, Conference USA represents and warrants that it has all rights

necessary to its grant of rights to ESPN and that the rights ESPN has acquired and its use of

such rights, do not and will not infringe upon or violate the rights of any third party. Id. at 12.

This agreement and others like it are key to the allegations that the NCAA and its co-conspirators

foreclose the rights of student athletes to be compensated for unauthorized uses of their names,

images, and likenesses following their eligibility for NCAA competition.

Through its broadcast and licensing agreements that provide it with millions of dollars in

revenues for broad grants of rights, its digital network, other licenses, and its leadership role

within the NCAA establishment,8

Conference USA plays a major role in the exploitation of

student athletes images and likenesses. Of course, while Conference USA enjoys huge profits,

the critical contributions of the former student athletes are ignored.

1. Media and Licensing Agreements and Related Revenue Reports AreHighly Relevant to the Antitrust Claims.

The media and licensing agreements requested by the narrowed subpoena go to the heart

of the antitrust claims in this case, as they purport to cover and convey rights to player name,

image, and likeness from the NCAA and its members to television networks and other third

parties in exchange for billions of dollars.

First, as Judge Wilken already has determined, the allegations of the Complaint

sufficiently support Plaintiffs claim that the NCAA and its members, along with its for-profit

8Conference USA recognizes its ability to influence NCAA rules and regulations, stating that

[a]long with the ACC, Big East, Big Ten, Big 12, Pac-10 and SEC, Conference USA is one of

the seven conferences having significant representation in the NCAA governance structure.

About Conference USA, http://conferenceusa.cstv.com/ot/about-c-usa.html (last visited Nov. 10,2011).



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business partners, conspire to restrain trade by requiring student athletes to relinquish their rights

to compensation for the commercial exploitation of their image and likeness after their playing

days are over. (Dkt. No. 151 at 6-7.) Judge Wilken also has determined that after the NCAA

obtains the releases, the Defendants broker agreements to distribute products or media containing

such images without compensating Plaintiffs and the class. Id. at 7. Agreements for rights to

televise games are specifically alleged to be one of the predicates for the claims asserted in the

case. (Dkt. No. 325 at 10.) Judge Wilken also confirmed that these agreements are also alleged

to impact and define the Collegiate Licensing Market, the defined relevant market in the case.

(Compl. at 306); see also Dkt. No. 151 at 10 (OBannon identifies numerous agreements

entered into by the NCAA and its members, including for the broadcast of athletic events. These

allegations suggest that the market exists). Defining the relevant market is an essential element

of a Sherman Act Section 1 claim.

Furthermore, presented with an almost identical issue, the Honorable Marc T. Treadwell

in the Middle District of Georgia granted Plaintiffs motion to compel the Atlantic Sun

Conference to produce its broadcast and licensing agreements, as well as related revenue reports

and other responsive documents. Keller v. Natl Collegiate Athletic Assn, Case No. 5:11-mc-

00014-MTT, Dkt. No. 9 (M.D. Ga. Nov. 15, 2011) (noting that the Conferences view of the

relevancy of the requested documents did not excuse it from its obligation to produce, especially

where an adequate protective order was in place). (Clobes Decl. at 24 [Appx. 8], Ex. M [Appx.

76-86].)

Second, Plaintiffs are entitled to the production of these broadcast contracts and licensing

agreements because they will demonstrate how NCAA rules and regulations are used to carry out

this scheme and the ways in which they affect the future rights of student athletes. As discussed



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above, release forms required by NCAA rules serve as a basis for agreements between NCAA

member conferences and licensees and broadcasters and purport to convey the rights in

perpetuity to utilize footage containing the images and likenesses of student athletes. These

agreements create a broad range of multimedia revenue streams, generating revenue to NCAA

members, such as Conference USA, totaling billions of dollars.

Finally, Plaintiffs seek money damages and require the production of the broadcast and

licensing agreements (and related revenue information) to determine the value of the rights

conveyed as a consequence of the anticompetitive scheme. Information about the amounts

received by Conference USA for the conveyance of rights to use and license Plaintiffs names,

images and likenesses are highly relevant, as that information will inform an analysis of the

value of such rights. Canyon Partners , L.P., v. Developers Diversified Realty Corp., No. 3-04-

CV-1335-L, 2005 WL 5653121 (N.D. Tex. Nov. 4, 2005) (ordering a non-party to produce

documents relevant to damages).

2. Exemplar Student Release Forms and the Documents ConcerningPolicies or Practices Regarding the Use of Student-Athletes Names,

Images and Likenesses Are Relevant to the Claims in the Litigation.

Plaintiffs requested that Conference USA produce unsigned, exemplar waiver forms that

purport to require student athletes to relinquish their rights to their name, image, and likeness.

(Ex. C, Request No. 6. [Appx. 31].) Plaintiffs also requested that Conference USA produce

documents reflecting policies regarding the use of Student-Athletes names, images, and

likenesses (Id., Request No. 7), including documents concerning NCAA Legislative Proposal

2010-26, which suggested several modifications to the NCAAs policies regarding the use of



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student athlete names, images, and likenesses. Conference USA has refused to produce any

documents responsive to these requests. (Clobes Decl. 21 [Appx 7]; Ex. I [Appx. 53-57].)9

The Complaint alleges that the NCAA and its members require student-athletes to release

all rights to compensation for the use in any media of the students name, image, and likeness.

See supra at 5-6. There is no question that such waiver forms are relevant to a claim or defense

in the suit, as they are the focus both of specific allegations in the Complaint ( 22-24) and of

several of the NCAAs affirmative defenses. See e.g., NCAA Response and Answer to Second

Consolidated Amended Class Action Complaint, Dkt. 330 at 55 (Affirmative Defense 13)

(Plaintiffs claims are barred, in whole or in part, because they acquiesced in, consented to,

waived, disclaimed, represented that they had no cognizable property interest . . . .).

Accordingly, Plaintiffs require exemplar forms for each academic year from 2002 through the

present.

Plaintiffs also requested that Conference USA produce documents reflecting policies

regarding the use of Student-Athletes names, images, and likenesses (Ex. C, Request No. 7

[Appx. 31]), and specifically, documents concerning NCAA Legislative Proposal 2010-26.10

(Id., Request No. 11 [Appx. 32]). These documents also plainly bear on claims and defenses in

the suit. Documents discussing NCAA Legislative Proposal 2010-26 relate to proposed changes

by the NCAA to rules relating to permissible exploitations of student-athlete image and likeness.

Documents discussing these topics are highly relevant to the NCAAs affirmative defenses

9 In its October 27 letter, Conference USA does not reference these materials, or explain its

refusal to produce them, instead lumping them into the general categories relating to media and

licensing agreements between the conference and third parties. See Clobes Decl. at 19 [Appx.

6]; Ex. H [Appx. 47-50].10

Conference USA continues to object to a prior version of this request on the basis of burden,but has not objected to the request as narrowed. (Clobes Decl. at 20-21 [Appx. 6-7].)



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because it asserts pro-competitive justifications for its conspiratorial conduct, including

principles of amateurism and competitive balance. (Dkt. No. 330 at 55-56 (Affirmative

Defense No. 24NCAA rules are necessary to create and preserve a unique product called

amateur college athletics; Affirmative Defense Nos. 11, 22the contested rules are non-

commercial).)

3. Conference USAs Relevance Objections Are Unfounded.Conference USA argues that television contracts, licensing materials, and related revenue

or royalty reports are irrelevant because Plaintiffs claims are preempted by the Copyright Act.

(Clobes Decl. 19 [Appx. 6] , Ex. H [Appx. 47-50].) In other words, Conference USA refuses

to produce highly relevant documents because it (mistakenly) believes that Plaintiffs claims will

ultimately fail. An objection on the basis that Plaintiffs claims lack merit, however, cannot

shield Conference USA from its obligation to produce responsive, discoverable documents. See

Hope for Families & Community Serv., Inc. v. Warren, No. 3:06-cv-1113, 2009 WL 174970 at

*12 (M.D. Ala. Jan. 26, 2009) (compelling discovery of a non-party RICO co-conspirator and

noting [a]ssuming arguendo that ultimately Plaintiffs claims fail either at the summary

judgment stage or at trial, an attempt to circumscribe discovery, after [the] court denied

Defendants motion to dismiss for failure to state a claim on core causes of action, nevertheless

is premature) (emphasis in original). To the extent preemption issues are relevant to Plaintiffs

claims, the Northern District of California is the proper forum for that dispute, not this Court.

Conference USAs position is particularly indefensible here because the presiding court

has recognized that Plaintiffs claims are premised in part on the very documents that Conference

USA refuses to produce. SeeIn re NCAA, 2011 WL 1642256, at *6 (Plaintiffs 1 claims also

encompass agreements for rights to televise games, DVD and on-demand sales and rentals, and



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sales of stock footage of competitions, to name a few) (citing Compl. 332-60). This

determination weighs heavily in favor of compelling production.

Conference USA also asserts that its broadcast and licensing agreements are irrelevant

because the NCAA is not a signatory to these agreements. (Clobes Decl. 18 [Appx. 6].) This

objection is also invalid. The Complaint alleges (and the court has confirmed) that Plaintiffs

claim is that the NCAA and its members, along with its for-profit business partners, conspired

to restrain trade by requiring student athletes to relinquish their rights to compensation for the

commercial exploitation of their images and likenesses after their playing days are over. While

the NCAA itself enters into some broadcast or licensing agreements, most of these agreements

(i.e., agreements that convey rights to the use of student-athlete image and likeness) are entered

into by NCAA members such as Conference USA. Thus, Conference USAs agreements are the

by-product of the alleged conspiracy, entered into by an alleged co-conspiratorthe Conference

itself. (Compl. 18.) Accordingly, there can be no doubt as to their relevance.

In light of Judge Wilkens rulings, as well as this Courts ancillary role in litigation

pending in another district, the Court should be especially hesitant to pass judgment on what

constitutes relevant evidence and should defer to the judge who is presiding over the case. See

generally SEC v. Brady, 238 F.R.D. at 437 (noting that unless the information sought can have

no possible bearing on the claim or defense of a party, the request for discovery should be

allowed). Accordingly, this Court should overrule Conference USAs meritless objection and

compel the production of the requested documents.



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C. Plaintiffs Requests Do Not Unduly Burden Conference USA.While Conference USA has lodged general objections to the requests on the basis of

burden, it has provided no specifics in that regard and has made no effort to discuss with

Plaintiffs proposals designed to reduce burden.

1. The Request Relating to EA Is Not Unduly Burdensome.Conference USA objects to the production of certain plainly relevant documents on the

grounds that they can be obtained from a party to the litigation (EA or CLC.) It is not clear

whether Conference USA is contending that all responsive materials in Request No. 8 (relating

to EA) are in the hands of a Defendant. First, certainly those materials not in EA or CLCs

possession must be produced. Second, even if some responsive material may be obtained from a

party, that fact provides no basis to avoid production where identification and production of the

material imposes no meaningful burden. See generally SDT Indus., Inc. v. Pennington Seed,

Inc., No. 10-0014, 2010 WL 2024735, at *5 (W.D. La. May 18, 2010) (noting that an objection

based on burden must be undue). Furthermore, the court must balance any burden on

Conference USA with the relevance of the requested documents. See Wiwa, 392 F.3d at 818

(applying a balancing test). This request is plainly relevant to Plaintiffs claims. The Complaint

specifically alleges that Plaintiffs (including former Conference USA star Danny Wimprines)

names, images and likenesses are being used by EA Sports subject to the anticompetitive

restraints of the NCAA and other Defendants. (Compl. 162.)

Additionally, as Conference USA has merely provided generalized burden objections

without substantiating its position, this Court should find its burden objections waived. See

Coker v. Duke & Co., 177 F.R.D. 682, 686 (M.D. Ala. 1998) (a party seeking to avoid

discovery on a burdensomeness argument must substantiate that position).



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2. Conference USA Cannot Withhold Documents on the Basis ofConfidentiality.

Conference USA has objected to producing responsive documents on the basis of

confidentiality, even though the court in the underlying litigation has entered an applicable

Protective Order. See Stipulated Protective Order Regarding Confidentiality of Documents &

Materials, In re Student-Athlete Name & Likeness Licensing Litig., No. C 09-01967 CW, Dkt.

No. 320 (entered Mar. 7, 2011). By its terms, that Order allows documents produced by a non-

party to be designated as confidential, and even provides for a Counsel Only designation for

the financial terms of a partys licensing, broadcast or other commercial agreements . . . the net

revenues a party receives for sales of products, licenses, rights, etc., and the royalty, licensing or

similar payments made or received by a party. Id. at 11. As such, the Protective Order

contemplates and protects the production of the very documents that Conference USA refuses to

produce.

Because Conference USA may invoke the broad protections provided for in the

Protective Order, the documents probative value far outweighs any minimal burden Conference

USA might incur. See SDT Indus., 2010 WL 2024735, at *6 (noting that a protective order

entered in the underlying action that allowed third parties to produce certain documents

designated Confidential-Attorneys Eyes Only Material was sufficient to overcome the non-

partys confidentiality objections, even where, unlike here, such documents would be disclosed

to the counsel of direct competitors); see also Keybank Natl Assn v. Perkins Rowe Assocs.,

LLC, Nos. 09-497-JJB-SCR, 10-552-JJB-SCR, 2011 WL 46300, at *1 (M.D. La. Jan. 6, 2011)

(noting a protective order available to non-parties adequately afforded parties sufficient

protection from disclosure).



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3. Conference USA Must Provide a Privilege Log.Plaintiffs seek all documents referencing or referring to the present litigation, also known

as the OBannon and/or Kellerlitigation, including, but not limited to, documents relating to or

referring to Plaintiffs subpoenas. Conference USA maintains that all such communications are

privileged, but has refused to provide a privilege log. See Fed. R. Civ. P. Rule 45(d)(2); Peacock

v. Merrill, No. 08-01-B-M2, 2008 WL 687198, at *3 (M.D. La. Mar. 10, 2008) (stating that a

privilege log produced pursuant to Rule 45(d)(2) should not only identify the date, the author,

and all recipients of each document listed therein, but should also describe the documents

subject matter, purpose for its production, and specific explanation of why the document is

privileged or immune from discovery and furthermore, a generalized description of a

document, which includes a conclusory statement that the document is subject to a particular

privilege, is insufficient) (emphasis in original and internal citations omitted). Because

Conference USA has failed to provide a log, this Court should order that Conference USA has

waived any privilege that may have otherwise applied. See Peacock, 2010 WL 687198, at *3 n.9

(noting that failure to provide an adequate privilege log may waive the privilege). In the

alternative, this Court should order Conference USA to produce a privilege log covering those

responsive documents that it claims are privileged, so that Plaintiffs may properly evaluate its

privilege claims.

D. The Court Should Find Conference USA in Contempt.Conference USAs failure to cooperate in meet-and-confer efforts and its failure to

identify and produce clearly responsive documents warrants an Order finding them in contempt

and obligating Conference USA to pay Plaintiffs expenses incurred in making this motion,

including attorneys fees. Fed. R. Civ. P. 45(e); Andrade v. Cooper/T. Smith Stevedoring Co.,



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Civil Action No. 06-907-B-M2, 2009 WL 5178301, at *3 n.2 (M.D. La. Dec. 15, 2009) (noting

that Fed. R. Civ. P. 45(e) provides authority for the imposition of sanctions for failure to

comply with a subpoena duces tecum).

V. CONCLUSION

For all the reasons stated above, Plaintiffs respectfully request that this Court grant

Plaintiffs Motion to Compel in its entirety and enter an Order holding Conference USA in

contempt and compelling it to produce all of the documents requested by Plaintiffs in their

subpoena.

Respectfully submitted,

/s/ James W. Holbrook, IIIThomas H. Cook, Jr.

State Bar No. 00783869James W. Holbrook III

State Bar No. 24032426

ZELLE HOFMANN VOELBEL &MASON LLP

901 Main Street, Suite 4000Dallas, TX 75202

Tel: (214) 742-3000


[email protected]

Bryan L. Clobes

Ellen Meriwether

CAFFERTY FAUCHER LLP

1717 Arch Street, Suite 3610Philadelphia, PA 19103

Tel: (215) 864-2800


Jon T. KingHAUSFELD LLP

44 Montgomery Street

Suite 3400San Francisco, CA 94104



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Tel: (415) 633-1908Fax: (415) 358-4980

[email protected]

Michael D. Hausfeld

HAUSFELD LLP1700 K Street, NW, Suite 650Washington, DC 20006

Tel: (202) 540-7200

Fax: (202) 540-7201

[email protected]

COUNSEL FOR PLAINTIFFS

CERTIFICATE OF CONFERENCE

I hereby certify that Plaintiffs counsel conferred with Dennis Palmer, counsel for

Conference USA, regarding the substantive matters presented in Plaintiffs Motion to Compel

Production of Documents by Non-Party Conference USA and Plaintiffs Supporting

Memorandum of Law. Despite counsels best efforts, the parties were unable to resolve the

matters presented herein.


James W. Holbrook, III



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CERTIFICATE OF SERVICE

I hereby certify that on December 7, 2011, I caused a true and correct copy of the Motion

to Compel Production of Documents by Non-Party Conference USA, Plaintiffs Supporting

Memorandum of Law, and the Declaration of Bryan Clobes to be served on Counsel for non-

party Conference USA, by First Class U.S. Mail and electronic mail at the following address:

Dennis PalmerPOLSINELLI SHUGART

700 W. 47th Street, Suite 1000

Kansas City, MO 64112Tel: (816) 374-0593

Fax: (816) 817-0251

[email protected]

Counsel to Conference USA.

/s/ James W. Holbrook, IIIJames W. Holbrook, III



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