As the Ed O'Bannon trial nears its conclusion, the NCAA entered into evidence Monday excerpts of depositions from 25 more witnesses, including basketball legends Bill Russell and Oscar Robertson and former shoe company entrepreneur Sonny Vaccaro.
The filings are intended to carry as much weight with U.S. District Judge Claudia Wilken as the live testimony she is hearing for three weeks. To what extent the depositions matter to Wilken remains to be seen. Last week, the plaintiffs filed excerpts from eight witness depositions, including a 2007 deposition from ex-NCAA executive director Walter Byers that attacks some of the NCAA's positions.
The NCAA wanted Vaccaro -- a longtime target and critic of the NCAA -- to testify given that he helped create the O'Bannon lawsuit, which seeks to end the NCAA's rules banning players from being paid off their names, images and likenesses. Wilken determined Vaccaro doesn't have to testify since he has nothing relevant to say regarding disputed issues of facts in the case.
Nevertheless, the NCAA filed excerpts of Vaccaro's deposition from December 2012 that in large part questions why Vaccaro did not pay high school recruits in his basketball events for use of their names, images and likenesses.
Vaccaro testified that high school players should be paid for use of their name, image or likeness for printed products in his Roundball Classic and ABCD Camp. When asked by an NCAA lawyer why he didn't pay the players, Vaccaro responded, "Never thought of it."
Vaccaro said, "Each every one of the kids who played in a Roundball Classic prided that on their own resume. And I never did (pay them for use of their name, image and likeness). So I didn't."
The NCAA lawyer showed Vaccaro a picture used of LeBron James from an old appearance in the Roundball Classic, a high school all-star game Vaccaro created. Vaccaro said he did not get permission from James to use his photo in the brochure.
In another instance, Vaccaro was shown a document with photos of individual campers at the ABCD Camp, which Vaccaro founded. Vaccaro was asked whether he obtained permission to use the players' photos or stats.
"I -- I don't know what -- what that means, but -- did I retain -- no, I would not have asked them specifically," Vaccaro said. "They would have wanted their picture in the book. But that's another story."
O'Bannon attorney Michael Hausfeld objected multiple times during Vaccaro's deposition and said the NCAA had not laid a foundation for certain types of questions.
Testimony from NBA legends
At one point in the O'Bannon case, there was major publicity around NBA legends Robertson and Russell being named plaintiffs in the suit based on their college days. Their significance in the case lessened through the years.
The NCAA's deposition excerpts from Robertson and Russell go to the NCAA's argument that it hasn't prevented former athletes from being paid off their name and likenesss after college. The O'Bannon plaintiffs haven't argued that point lately in the case.
Robertson's deposition shows that he entered into a contract with 29/34 Vintage Sportswear Inc. to utilize his name on replica University of Cincinnati jerseys. Robertson, a star college player at Cincinnati, testified that he never received any money for the jersey agreement. The NCAA attorney asked Robertson how he knows that.
"How do I know that?" Robertson said. "If you ask me that question and I tell you I never got any payments, then why are we here for this deposition? I swore to tell you the truth about this thing, if I can recall it."
Robertson acknowledged he can sell his name and likeness and has done so through the years. Russell agreed the NCAA has never interfered with him making money off his name and image.
The excerpts from Russell's deposition outlined many of his commercial enterprises. As of December 2012, when the deposition took place, Russell said he made $200,000 a year as an NBA ambassador.
Other dollar amounts from Russell's business deals were redacted. The NCAA said in a court filing those figures should remain confidential since they could hurt Russell's business opportunities. Russell's past business dealings included trading cards, a beer commercial, autographs and an HBO documentary.
Russell was asked if he made a guest appearance for the Elegant Entertainment Agency in 2001 for a certain price that was redacted. "He got it at a lower price," Russell said. "I try to forget those."
Russell testified he has signed "maybe a dozen" autographed cards with him in a University of San Francisco uniform from his college days. He said he told the card companies he no longer wants to sign those pictures.
When asked why, Russell said, "Well, I have a fractured relationship with the college."
Pat Battle testimony about CLC
In another deposition filed, former Collegiate Licensing Company executive Pat Battle testified about the pressure CLC and Electronic Arts attempted to apply on the NCAA to allow players' names and likenesses in video games. The NCAA recently announced a $20 million settlement with video-game plaintiffs, and EA and CLC previously settled for $40 million.
Battle testified that the inability to make video-game avatars as real as possible "was a glaring omission in terms of the realism of the game and … it was reflected in terms of the sales. And so that's what EA wanted to do. We had the same objectives, so our discussions with the NCAA and with others were generally around that." Battle said EA and CLC were never successful getting the NCAA to change its eligibility rules in order to benefit video games.
Battle's testimony also showed some of the inner workings of CLC, the nation's leading collegiate trademark licensing and marketing firm, before it was purchased by IMG in 2007. Battle's father, current Alabama AD Bill Battle, founded CLC and his son Pat worked his way up as an executive.
Pat Battle said he had an ownership stake in CLC of about 6 percent when the company started in 1981. That stake increased to around 17 percent or 18 percent when CLC was bought by IMG, said Battle, who became a senior vice president at IMG College. Battle left IMG in June 2011.
The NCAA also filed depositions from recent college football players Moses Alipate, Jake Fischer, Darius Robinson and Jake Smith. Chase Garnham, another recent player who's a named plaintiff, testified at the trial.
Several of the deposition excerpts focus on the NCAA getting recent players to identify benefits to being a college athlete, such as coaches being mentors, athletes interacting with other students and the significance of playing college sports on a future job resume. The integration of academics and athletics is one of the NCAA's key defenses in the antitrust lawsuit.
Alipate, who recently played at Minnesota, agreed that one reason the student body rallies around the football team is because the players are students. That builds loyalty in the community because it "creates a more personal relationship with people," Alipate said.
Alipate said his scholarship did not always cover enough food costs so players "pooled our money together and went to Taco Bell." When asked if he ever went hungry, Alipate said, "At times."
Robinson, a recent Clemson player, testified that he sometimes calls home to his parents for additional food money not covered by his scholarship. He said he's not sure if he would consider his scholarship a benefit.
"I mean, I still have to maintain my scholarship," Robinson testified. "My scholarship is only good for one year, so I have to keep my grades up and maintain or I could lose it. ... It's earned. I wouldn't say it's given."