Ed O'Bannon plaintiffs want Mark Emmert to testify at trial
Witness lists are revealed for June 9 trial. Plaintiffs want to include "factual findings" from the NLRB's decision that Northwestern football players are employees. NCAA objects.
NCAA president Mark Emmert will testify during the trial of the Ed O'Bannon lawsuit relating to the names, images and likenesses of college athletes, according to court filings Wednesday.
The O'Bannon plaintiffs identified Emmert, former NCAA vice president Wally Renfro and NCAA Division I vice president David Berst as witnesses they want to appear live. All three are scheduled to testify for the defense at the June 9 trial in Oakland.
“The NCAA has indicated that it will check on the availability of the three individuals above to testify during Plaintiffs’ case-in-chief, but that is not sufficient,” lawyers for the O’Bannon plaintiffs wrote. “If those people do testify during the defense case, they need to be unequivocally made available for live testimony as part of Plaintiffs’ case and Plaintiffs need to know that sooner rather than later so they can prepare examination.”
The document was part of hundreds of documents filed in pretrial motions as the trial date approaches. Late Wednesday night, the O'Bannon plaintiffs dropped their individual claims against the NCAA for a jury trial and now want to only pursue the antitrust class-action case before the judge.
The filings also include the O’Bannon plaintiffs’ desire to present “factual findings” by the National Labor Relations Board’s Chicago-based regional director who ruled that Northwestern football players are employees.
“The factual findings by the NLRB’s Regional Director demonstrate that under the existing ban on college athlete compensation, any claimed integration of education and athletics is minimal,” the O’Bannon plaintiffs wrote. “This evidence directly refutes the NCAA’s alleged procompetitive justification and should be admitted.”
In a separate filing, the NCAA argued the NLRB decision is inadmissible hearsay and should not be used to suggest to jurors “that some other authority has already decided for them that (student-athletes) are no different than professional athletes.”
The NCAA wrote that the NLRB ruling is not by definition a “factual finding” and “largely irrelevant” because the definition of “employee” is unrelated to the antitrust case. Also, the NCAA said the ruling should not be admissible since the NCAA is not a party in the Northwestern labor law case.
Witness lists for NCAA and O'Bannon
Both parties filed witness lists that include prominent names in the world of college sports. In additon to Emmert, some names on the plaintiffs' witness list include:
* O’Bannon, the former UCLA basketball star whose name has become synonymous with the case. Eighteen named plaintiffs are listed as witnesses. The plaintiffs' proposed verdict form shows they are seeking individual damages for 17 plaintiffs -- everyone but Oscar Robertson. That no longer is the case, according to a later filing by the plaintiffs.
* Former NBA legends Bill Russell and Robertson, who are both named plaintiffs in the suit.
* Two Electronic Arts executives — Joel Linzner, executive vice president of business and legal affairs; and Jordan Edelstein, former vice president of marketing. They will testify about the business relationship between EA, Collegiate Licensing and the NCAA for college video games and EA's alleged conduct. EA and CLC settled for $40 million with the plaintiffs over the alleged use of football and men's basketball players' likenesses in EA video games. The settlement is expected to be filed to the court soon.
* Mary Willingham, a former North Carolina learning specialist and academic adviser who helped expose an academic scandal at the university that involves athletes. The NCAA objects to testimony from Willingham without deposing her before trial. The plaintiffs have not agreed to a deposition yet for Willingham, according to the NCAA.
* Pulitzer-Prize winning author Taylor Branch, who wrote a highly-critical, in-depth story about the NCAA. Branch is one of the plaintiffs' seven expert witnesses. The NCAA said Branch lacks the necessary expertise or experience in college sports to be a witness and called his expert report "a veritable Russian Matryoshka nesting doll of hearsay."
The NCAA's witness list, either live or through deposition, includes:
* Big Ten commissioner Jim Delany
* Conference USA commissioner Britton Banowsky
* Michigan president Mary Sue Coleman
* South Carolina president Harris Pastides
* Former Fresno State president John Welty
* Michigan athletic director Dave Brandon
* Michigan State athletic director Mark Hollis
* Stanford athletic director Bernard Muir
* Texas women's athletic director Christine Plonsky
* SEC executive associate commissioner Greg Sankey
* Maryland athletic director Kevin Anderson
* Horizon League commissioner Jonathan LeCrone
* NCAA vice president of membership and academic affairs Kevin Lennon
Many of these witnesses previously gave written declarations in the case. The plaintiffs say the NCAA’s declarants “do not come close” to meeting the standard for lay witness testimony because their statements are “self-serving” and not based on any evidence to help determine whether the NCAA’s restraint to pay players helps to maintain competitive balance.
Disagreement over Sonny Vaccaro testifying
The filings also revealed disagreement about whether the NCAA should be allowed to call former shoe marketing executive Sonny Vaccaro to testify. Vaccaro is a longtime and vocal critic of the NCAA.
The NCAA wants Vaccaro to testify about his role in "recruiting plaintiffs to file this litigation" and "basketball camps or all-star games for high school students as well as sponsorship and the use of students' name, image and likeness in the same." Vaccaro helped bring some of the ex-college athletes to the case.
“Neither topic is relevant to this case and both would cause prejudice to Plaintiffs,” the plaintiffs wrote. “Indeed, the purpose of requesting Mr. Vaccaro’s testimony appears to be to harass Mr. Vaccaro and to sow confusion through the airing of irrelevant and prejudicial issues.”
Among the evidence the NCAA said should not be admitted at trial:
* Anything related to injuries in college sports. The lead attorney for the O'Bannon plaintiffs is part of broad concussion litigation against the NCAA that's in settlement talks. Allowing injuries to be discussed could "encourage the Jury to decide this antitrust case based on their understandable sympathy for (student-athletes) that have suffered or may suffer injuries rather than on evidence of the rules’ competitive effects," the NCAA wrote.
* Any licensing evidence that's not related to broadcasts, rebroadcasts, clips of game footage, and video games. The O'Bannon lawyers have acknowledged jerseys, bobbleheads and other merchandise are not part of this case.
* Statements from the media and advocacy groups such as the Knight Commission, Drake Group and the National College Players Association. The plaintiffs' court submissions "strongly suggest that plaintiffs intend to turn reporters and advocacy groups into witnesses by introducing what they have written outside the courtroom," the NCAA wrote.
* A book written by former NCAA executive director Walter Byers that condemned how the NCAA operates and Byers' testimony several years ago in another lawsuit.
* Athlete eligibility forms used by schools and conferences, other than the NCAA-approved forms. The plaintiffs have previously argued that athletes sign away their right of publicity forever through these forms. The NCAA said there is no evidence it was aware of the contents of those forms or that it had any role in drafting the documents.
* References or evidence of the wealth of any NCAA or university employee who's a witness for the NCAA. Allowing that evidence "would be to ask the Jury to find against the NCAA by suggesting that some people who work in college sports are paid too much," the NCAA wrote.
* The indictment of North Carolina professor Julius Nyang’oro, who was accused of
offering fraudulent courses that had a disprotionate number of athletes in them. The NCAA said the plaintiffs intend to use Nyang'oro's indictment at trial but agreed not to discuss the Penn State sexual abuse scandal.
The NCAA has two motions pending to delay or redefine the trial. A status conference for the case will be held Thursday that could clarify the status of the trial.
“If the Court determines that the June 9 trial should proceed as scheduled, the NCAA is prepared to do so and we look forward to presenting our case in court,” NCAA chief legal officer Donald Remy said in a statement.
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