WILKINSON WALSH + ESKOVITZ LLP HAGENS BERMAN SOBOL SHAPIRO 2 11726 San Vicente Blvd., Ste

Case 4:14-md-02541-CW Document 818 Filed 05/15/18 Page 1 of 27 1 Sean Eskovitz (SBN 241877) Steve W. Berman (pro hac vice) WILKINSON WALSH + ESKOVITZ LLP HAGENS BERMAN SOBOL SHAPIRO 2 11726 San Vicente Blvd., Ste. 600 LLP 1918 Eighth Avenue, Suite 3300 3 Los Angeles, CA 90049 Seattle, WA 98101 Telephone: (424) 316-4000 Telephone: (206) 623-7292 4 Facsimile: (202) 847-4005 Facsimile: (206) 623-0594 [email protected] [email protected] 5 Beth A. Wilkinson (pro hac vice) Bruce L. Simon (SBN 96241) 6 Alexandra M. Walsh (pro hac vice) PEARSON, SIMON & WARSHAW, LLP 44 Montgomery Street, Suite 2450 7 Brian L. Stekloff (pro hac vice) San Francisco, CA 94104 Rakesh N. Kilaru (pro hac vice) Telephone: (415) 433-9000 8 WILKINSON WALSH + ESKOVITZ LLP Facsimile: (415) 433-9008 2001 M Street NW, 10th Floor [email protected] 9 Washington, DC 20036 Telephone: (202) 847-4000 Jeffrey L. Kessler (pro hac vice) 10 David G. Feher (pro hac vice) Facsimile: (202) 847-4005 David L. Greenspan (pro hac vice) 11 [email protected] WINSTON & STRAWN LLP [email protected] 200 Park Avenue 12 [email protected] New York, NY 10166-4193 [email protected] Telephone: (212) 294-6700 13 Facsimile: (212) 294-4700 Jeffrey A. Mishkin (pro hac vice) [email protected] 14 [email protected] Karen Hoffman Lent (pro hac vice) [email protected] 15 SKADDEN ARPS SLATE MEAGHER & FLOM LLP Class Counsel for Jenkins and Consolidated 16 Four Times Square Action Plaintiffs New York, NY 10036 [Additional counsel listed on signature page] 17 Telephone: (212) 735-3000 Facsimile (212) 735-2000 18 [email protected] [email protected] 19 Counsel for Defendant NCAA [Additional counsel listed on signature page] 20 UNITED STATES DISTRICT COURT 21 NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION 22 23 IN RE NATIONAL COLLEGIATE Case No. 4:14-md-02541-CW ATHLETIC ASSOCIATION ATHLETIC Case No. 4:14-cv-02758-CW 24 GRANT-IN-AID CAP ANTITRUST LITIGATION JOINT CASE MANAGEMENT STATEMENT 25 ______________________________________ Date: May 22, 2018 26 THIS DOCUMENT RELATES TO: ALL Time: 2:30 p.m. ACTIONS 27 Judge: Hon. Claudia Wilken 28 JOINT CASE MANAGEMENT STATEMENT - CASE NOS. 4:14-MD-02541-CW; 4:14-CV-02758- CW Case 4:14-md-02541-CW Document 818 Filed 05/15/18 Page 2 of 27 1 Pursuant to Northern District of California Local Rule 16-10(d) and the Court’s Order 2 Scheduling Case Management Conference and Hearing on Motion (“Order”),1 counsel for all parties 3 in the above-captioned actions submit this Joint Case Management Statement in advance of the hearing 4 scheduled for May 22, 2018. 5 A. PLAINTIFFS’ GENERAL STATEMENT 6 Defendants continue to rehash the same unfounded objections and arguments that were 7 adjudicated on summary judgment. They effectively argue that the Court reconsider its summary 8 judgment and Daubert rulings against them, but it is too late for Defendants to file such a motion, 9 which would be baseless in any event. The Court’s rulings are the law of the case. Defendants likewise 10 recycle their contention that the trial cannot proceed until Plaintiffs identify which rules are 11 challenged. In reality, as Defendants know, Plaintiffs have repeatedly provided them with this exact 12 information: First, in an original and amended interrogatory response;2 again in a chart of challenged 13 rules submitted along with Plaintiffs’ summary judgment motion;3 and yet again in another chart of 14 challenged rules and operative language submitted with Plaintiffs’ summary judgment reply brief.4 15 Defendants nonetheless persist in claiming that they do not know what rules are at issue, but on top of 16 the fact that Plaintiffs have identified the specific rules over and over, the overarching premise of the 17 legal challenge presented is well known to Defendants. Plaintiffs are challenging the specified NCAA 18 (and corresponding Conference) rules to the extent that they, individually or in combination, constitute 19 a cap on the amount of compensation or benefits that Class Members may receive for their athletic 20 services. There is no mystery about this. While Defendants complain about having the burden to 21 justify all the rules Plaintiffs have challenged, this is required because of the byzantine nature of their 22 massive rule books and the fact that, as the Court has ruled, this case is now in a different time frame 23 from O’Bannon with different claims and all of the challenged rules relate to the same core issue: 24 1 ECF No. 816. All docket references are to the MDL docket, Case No. 4:14-md-02541-CW (NC). 25 2 See, e.g., Sept. 19, 2016 Consolidated Amended Complaint Plaintiffs’ Responses to Defendant 26 NCAA’s Second Set of Interrogatories at 4-12; Feb. 7, 2017 Consolidated Amended Complaint Plaintiffs’ Amended Responses to NCAA’s Second Set of Interrogatories at 1-2. 27 3 App’x A, Pls.’ Mot. for Summ. J, ECF No. 657. 4 App’x A, Pls.’ Reply Mem. ISO Mot. for Summ. J., ECF No. 714. 28 - 1 - JOINT CASE MANAGEMENT STATEMENT - CASE NOS. 4:14-MD-02541-CW; 4:14-CV-02758- CW Case 4:14-md-02541-CW Document 818 Filed 05/15/18 Page 3 of 27 1 limitations on the amount student athletes can be compensated or receive in benefits for their playing 2 services. At trial, many of these rules can be easily grouped together for analysis so that it will be 3 manageable to present all relevant evidence about these rules during the two weeks the Court has 4 allotted. Thus, every ostensible question Defendants raise to manufacture a hollow claim that they do 5 not have clarity about the forthcoming trial is answered by the summary judgment record, hearing 6 transcript, and order. 7 B. DEFENDANTS’ GENERAL STATEMENT 8 The combination of the Court’s summary judgment ruling and the lack of clarity in what claims 9 Plaintiffs assert that were not decided in O’Bannon make it impossible for the Defendants to commit 10 to a definitive Case Management Statement with respect to trial. Notably, Plaintiffs have failed to 11 identify what specific conduct by the Defendants and which of the 80 challenged NCAA rules 12 identified in their interrogatory responses5 and summary judgment briefing they intend to challenge at 13 trial. In none of the charts listing the 80 rules they challenge have Plaintiffs identified which of those 14 rules they claim were not addressed in O’Bannon, either because they post-date the final determination 15 of O’Bannon or because they concern limits on benefits that Plaintiffs contend were not litigated in 16 that case. If Plaintiffs’ position is that none of the 80 NCAA rules they’ve identified were addressed 17 in O’Bannon and that all of those rules must be tried in this case, a two-week trial schedule is plainly 18 not feasible. Moreover, the lack of clarity in Plaintiffs’ approach to their claims is demonstrated by 19 Plaintiffs’ position above, in which they assert they are challenging “specific rules … individually or 20 in combination.” It remains a mystery whether Plaintiffs believe Defendants will need to demonstrate 21 that each specific rule is procompetitive, that the “current, interconnected set”6 of rules are collectively 22 procompetitive, or something altogether different. 23 24 25 5 See CAC Plfs.’ Resp. to NCAA’s 2nd Set of Interrog., No. 1 (Sept. 19, 2016); Jenkins Plfs.’ Resp. to NCAA’s 2nd Set of Interrog., No. 1 (Sept. 19, 2016); CAC Plfs.’ Am. Resp. to NCAA’s 2nd Set of 26 Interrog., No. 1 (Feb. 7, 2017); Jenkins Plfs.’ Am. Resp. to NCAA’s 2nd Set of Interrog., No. 1 (Feb. 7, 2017). 27 6 See Order Granting in Part and Denying in Part Cross-Motions for Summary Judgment, ECF No. 804 (“Summary Judgment Order”) at 13. 28 - 2 - JOINT CASE MANAGEMENT STATEMENT - CASE NOS. 4:14-MD-02541-CW; 4:14-CV-02758- CW Case 4:14-md-02541-CW Document 818 Filed 05/15/18 Page 4 of 27 1 Further still, Plaintiffs apparently intend to offer at trial still-unspecified less restrictive 2 alternatives that were not permitted by the Court in the Summary Judgment Order. Without Court 3 guidance about how it intends to address Plaintiffs’ unspecified claims, what issues of fact and law 4 remain to be tried, which rules Plaintiffs are challenging, and which alternatives to those rules will be 5 considered, Defendants cannot make informed decisions about which witnesses to call, what testimony 6 may be relevant, or how the case can be structured for trial. 7 Defendants therefore respectfully submit that fairness, efficiency, and due process require that 8 (1) Defendants be informed of the triable issues of fact that were not adjudicated by the O’Bannon 9 decision and are to be tried in this action; and, (2) Plaintiffs be required to specify each NCAA or 10 conference rule they challenge and, for each such rule, the particular, substantially less restrictive 11 alternatives they claim would as effectively advance Defendants’ procompetitive justifications. 12 Subject to the foregoing, Defendants submit the following with respect to the specific issues identified 13 in the Court’s April 26, 2018 order. 14 C. TREATMENT OF JENKINS CASE PENDING TRIAL IN CONSOLIDATED 15 CASE 16 Plaintiffs’ Proposal: Plaintiffs believe that the Jenkins case should be stayed pending the trial 17 and decision in the consolidated case. They do not believe there is any basis for dismissal of Jenkins, 18 and, in fact, this Court has repeatedly recognized the independent existence of Jenkins.

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