VOLUME 9 PAGES 1712 - 1937 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA EDWARD O'BANNON, ET AL., ) ) ) PLAINTIFFS, ) NO. C-09-3329 CW ) VS. ) THURSDAY, JUNE 19, 2014 ) NATIONAL COLLEGIATE ) OAKLAND, CALIFORNIA ATHLETIC ASSOCIATION, ) ET AL., ) ) DEFENDANTS. ) COURT TRIAL ____________________________) BEFORE THE HONORABLE CLAUDIA WILKEN, JUDGE REPORTERS' TRANSCRIPT OF PROCEEDINGS APPEARANCES: FOR PLAINTIFFS: HAUSFELD, LLP 1700 K STREET, NW, SUITE 650 WASHINGTON, DC 20006 BY: MICHAEL D. HAUSFELD, ESQUIRE SATHYA GOSSELIN, ESQUIRE BOIES, SCHILLER & FLEXNER, LLP 5301 WISCONSIN AVENUE, N.W. WASHINGTON, D.C. 20015 BY: WILLIAM A. ISAACSON, ESQUIRE (APPEARANCES CONTINUED) REPORTED BY: DIANE E. SKILLMAN, CSR 4909 RAYNEE H. MERCADO, CSR 8258 OFFICIAL COURT REPORTERS TRANSCRIPT PRODUCED BY COMPUTER-AIDED TRANSCRIPTION DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930 1713 1 (APPEARANCES CONTINUED) 2 3 FOR PLAINTIFFS: HEINS, MILLS & OLSON, P.L.C. 310 CLIFTON AVENUE 4 MINNEAPOLIS, MINNESOTA 55403 BY: RENAE D. STEINER, ESQUIRE 5 6 VENABLE, LLP 757 7TH STREET, NW 7 WASHINGTON, D.C. 20004 BY: SETH ROSENTHAL, ESQUIRE 8 9 HAUSFELD, LLP 44 MONTGOMERY STREET, SUITE 3400 10 SAN FRANCISCO, CALIFORNIA 94104 BY: MICHAEL P. LEHMANN, ESQUIRE 11 BRUCE WECKER, ESQUIRE 12 13 14 15 FOR DEFENDANT MUNGER, TOLLES & OLSON LLP NCAA: 355 SOUTH GRAND AVENUE, 35TH FLOOR 16 LOS ANGELES, CALIFORNIA 90071 BY: GLENN D. POMERANTZ, ESQUIRE 17 18 MUNGER, TOLLES & OLSON LLP 560 MISSION STREET, 27TH FLOOR 19 SAN FRANCISCO, CALIFORNIA 94105 BY: KELLY M. KLAUS, ESQUIRE 20 ROHIT K. SINGLA, ESQUIRE CAROLYN HOECKER LUEDTKE, ESQUIRE 21 LUIS LI, ESQUIRE JESLYN A. MILLER, ESQUIRE 22 23 24 25 DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930 1714 1 I N D E X 2 DEFENDANTS' WITNESS: PAGE VOL. 3 EMMERT, MARK 4 DIRECT EXAMINATION BY MR. POMERANTZ 1715 9 5 CROSS-EXAMINATION BY MR. ISAACSON 1794 9 6 7 DEFENDANTS' EXHIBITS: EVD. VOL. 8 254-147 1813 9 9 2017 (PGS. 8, 9, 25, 59, 62) 1913 9 10 2027 1832 9 11 2037 1935 9 12 2074 1929 9 13 2288 1804 9 14 2289 1804 9 15 2293 1813 9 16 2451-203 1813 9 17 2481 (PGS. 37 & 51) 1813 9 18 2587 1871 9 19 20 21 22 23 24 25 DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930 1715 EMMERT - DIRECT / POMERANTZ 1 THURSDAY, JUNE 19, 2014 8:31 A.M. 2 P R O C E E D I N G S 3 THE CLERK: REMAIN SEATED. COME TO ORDER. THIS 4 COURT IS NOW IN SESSION. 5 THE COURT: GOOD MORNING. 6 MR. POMERANTZ: GOOD MORNING, YOUR HONOR. 7 MR. HAUSFELD: GOOD MORNING. 8 THE COURT: WOULD YOU STAND AND RAISE YOUR RIGHT 9 HAND, PLEASE, SIR? 10 (MARK EMMERT, CALLED AS A WITNESS FOR THE DEFENDANTS, 11 HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS:) 12 THE WITNESS: I DO. 13 THE CLERK: PLEASE BE SEATED, AND ONCE SEATED I'M 14 GOING TO ASK THAT YOU PLEASE STATE AND SPELL YOUR FIRST AND 15 LAST NAME FOR THE RECORD, PLEASE. 16 THE WITNESS: MARK EMMERT. M-A-R-K E-M-M-E-R-T. 17 THE CLERK: THANK YOU. 18 DIRECT EXAMINATION 19 BY MR. POMERANTZ: 20 Q. GOOD MORNING, DR. EMMERT. 21 A. GOOD MORNING. 22 Q. WHAT IS YOUR CURRENT JOB? 23 A. I'M THE PRESIDENT OF THE NCAA. 24 Q. HOW LONG HAVE YOU HELD THAT POSITION? 25 A. ROUGHLY THREE AND A HALF YEARS. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930 1716 EMMERT - DIRECT / POMERANTZ 1 Q. I WOULD LIKE TO START WITH YOUR BACKGROUND. 2 WHERE DID YOU GO TO COLLEGE? 3 A. I WAS AN UNDERGRADUATE AT THE UNIVERSITY OF WASHINGTON IN 4 SEATTLE, AND I DID MY MASTER'S AND PH.D. AT SYRACUSE 5 UNIVERSITY. 6 Q. WHAT YEAR DID YOU GRADUATE FROM THE UNIVERSITY OF 7 WASHINGTON? 8 A. 1975. 9 Q. AND WHAT DEGREES DID YOU GET AT SYRACUSE? 10 A. I GOT A MASTER'S AND A PH.D. BOTH IN PUBLIC ADMINISTRATION 11 PUBLIC POLICY. 12 Q. WHAT YEAR DID YOU GET YOUR PH.D. IN? 13 A. 1983. 14 Q. AND AFTER YOU GOT YOUR PH.D., WHAT WAS YOUR FIRST JOB? 15 A. I WAS A PROFESSOR, AN ASSISTANT PROFESSOR IN THE TENURE 16 TRACK RANKS IN THE POLITICAL SCIENCE DEPARTMENT OF NORTHERN 17 ILLINOIS UNIVERSITY. 18 Q. AND WHAT YEARS WERE YOU AT NORTHERN ILLINOIS UNIVERSITY? 19 A. OH, '83 TO '85 I THINK IT WAS. 20 Q. THEN WHERE DID YOU GO? 21 A. WENT TO THE UNIVERSITY OF COLORADO ON BOTH THEIR DENVER 22 AND BOULDER CAMPUSES AND JOINED THE FACULTY OF THE GRADUATE 23 SCHOOL OF PUBLIC AFFAIRS. 24 Q. AND WHAT DID YOU TEACH AT THE UNIVERSITY OF COLORADO? 25 A. MOSTLY IN THE MASTER'S AND DOCTORAL PROGRAM IN PUBLIC DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930 1717 EMMERT - DIRECT / POMERANTZ 1 ADMINISTRATION AND PUBLIC POLICY. 2 Q. AND DO YOU RECALL APPROXIMATELY WHEN YOU WERE AT THE 3 UNIVERSITY OF COLORADO? 4 A. '85 THROUGH THE EARLY '90S. I'VE FORGOTTEN WHEN. '80 -- 5 '91, '2. 6 Q. AND THEN AFTER THE UNIVERSITY OF COLORADO, WHAT WAS YOUR 7 NEXT POSITION? 8 A. I BECAME THE PROVOST AT MONTANA STATE UNIVERSITY. 9 Q. AND SO THAT'S MOVING FROM BEING A PROFESSOR TO BEING A 10 COLLEGE ADMINISTRATOR? 11 A. YES. WHILE AT COLORADO I ALSO HAD ADMINISTRATIVE 12 APPOINTMENTS THERE. I WAS THE ASSISTANT DEAN AND THEN MOVED 13 TO THE PRESIDENT'S OFFICE AT BOULDER. 14 Q. HOW LONG DID YOU STAY AT MONTANA STATE? 15 A. I WAS THERE THREE YEARS AS THEIR PROVOST AND CHIEF 16 ACADEMIC OFFICER. 17 Q. AND THEN WHERE DID YOU GO AFTER MONTANA STATE? 18 A. I TOOK A SIMILAR POSITION WITH THE UNIVERSITY OF 19 CONNECTICUT IN STORRS, CONNECTICUT AND WAS RETITLED CHANCELLOR 20 OF THAT INSTITUTION. 21 Q. AND AFTER YOU WERE -- DO YOU RECALL APPROXIMATELY HOW LONG 22 YOU STAYED AS CHANCELLOR OF THE UNIVERSITY OF CONNECTICUT? 23 A. A LITTLE OVER FOUR YEARS. 24 Q. AND THEN WHERE DID YOU GO? 25 A. BECOME CHANCELLOR WHICH WAS A CEO POSITION OF LOUISIANA DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930 1718 EMMERT - DIRECT / POMERANTZ 1 STATE UNIVERSITY IN 1999. 2 Q. HOW LONG DID YOU STAY AS CHANCELLOR OF LOUISIANA STATE? 3 A. LITTLE OVER FIVE YEARS. 4 Q. LOUISIANA STATE IS COMMONLY REFERRED TO AS LSU? 5 A. YES. 6 Q. AND AFTER LSU, WHAT WAS YOUR NEXT POSITION? 7 A. I TOOK THE PRESIDENCY OF MY ALMA MATER, THE UNIVERSITY OF 8 WASHINGTON BACK IN SEATTLE. 9 Q. AND FROM WHAT YEARS DID YOU SERVE AS PRESIDENT OF THE 10 UNIVERSITY OF WASHINGTON? 11 A. OH, EARLY '04 TO LATE 2010. 12 Q. AND SO DURING YOUR TIME AS A COLLEGE ADMINISTRATOR AT 13 MONTANA STATE, CONNECTICUT, LSU AND WASHINGTON, DID YOU HAVE 14 RESPONSIBILITIES FOR THE ACADEMIC PROGRAMS AT THOSE COLLEGES? 15 A. YES. 16 Q. WHAT WERE THOSE RESPONSIBILITIES? BRIEFLY. 17 A. WELL, IN -- FIRST OF ALL, AS A FACULTY MEMBER, THE 18 ACADEMIC RESPONSIBILITIES ARE FOR YOUR PARTICULAR ACADEMIC 19 ASSIGNMENT. 20 AS AN ASSOCIATE DEAN, I WAS RESPONSIBLE FOR ACADEMIC 21 PROGRAMS ACROSS A SCHOOL, THE GRADUATE SCHOOL OF PUBLIC 22 AFFAIRS AT COLORADO, AND THEN AS PROVOST AT MONTANA STATE. 23 AND CONNECTICUT I WAS RESPONSIBLE FOR ALL ACADEMIC PROGRAMS 24 ACROSS THE ENTIRE INSTITUTION. 25 AND THEN AS PRESIDENT AND CHANCELLOR AT LSU AND DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930 1719 EMMERT - DIRECT / POMERANTZ 1 WASHINGTON, THE -- ALL OF THE ACADEMIC PROGRAMS REPORT IN TO 2 THE PRESIDENT. 3 Q. AND LET ME FOCUS ON THE ATHLETIC PROGRAMS AT THESE 4 SCHOOLS. 5 YOU HAVE BEEN AT SIX DIFFERENT COLLEGES? 6 A. YES. 7 Q. WERE EACH OF THOSE COLLEGES A MEMBER OF THE NCAA? 8 A. YES, THEY WERE. 9 Q. WHICH DIVISIONS WERE EACH OF THOSE COLLEGES A MEMBER OF? 10 A. THEY ARE ALL DIVISION I SCHOOLS. 11 Q. AND WHILE YOU WERE AT THESE COLLEGES, DID YOU HAVE ANY 12 RESPONSIBILITIES FOR THE ATHLETIC PROGRAMS AT THE COLLEGES? 13 A. WORKING BACKWARDS, AT WASHINGTON AND LSU, THE ATHLETIC 14 DIRECTORS REPORTED DIRECTLY TO ME. SO I HAD FINAL OVERSIGHT 15 OF THOSE PROGRAMS, THOUGH I DIDN'T DO THE DAY-TO-DAY OPERATION 16 OF THOSE PROGRAMS, OF COURSE. 17 AT CONNECTICUT, I DID NOT HAVE THE ATHLETIC DIRECTOR 18 REPORTING TO ME, BUT WORKED WITH HIM AS A CHIEF ACADEMIC 19 OFFICER. I INTERACTED WITH HIM OFTEN. 20 THEN AT MONTANA STATE, I HAD LITTLE INTERACTION WITH 21 ATHLETIC PROGRAM, BUT WAS MOSTLY A FAN. 22 Q. SO IT'S FAIR TO SAY IT WAS AT LSU AND WASHINGTON WHERE YOU 23 HAD DIRECT RESPONSIBILITY FOR THE ATHLETIC PROGRAM? 24 A. YES, THAT'S CORRECT. 25 Q. THE ATHLETIC DIRECTOR REPORTED DIRECTLY TO YOU? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC (510) 451-2930 1720 EMMERT - DIRECT / POMERANTZ 1 A. CORRECT. 2 Q. DID EACH OF THE COLLEGES THAT YOU'VE WORKED AT AND WHERE 3 YOU HAD OVERSIGHT OF THE ATHLETIC DEPARTMENT, DID THEY OFFER 4 BOTH FOOTBALL AND BASKETBALL? 5 A. YES. 6 Q. DID THEY OFFER OTHER SPORTS AS WELL? 7 A. YES. 8 Q. IN YOUR VIEW, WHY DID THESE SCHOOLS OFFER AN ATHLETICS 9 PROGRAM? 10 A. I THINK FOR THE SAME REASONS THAT -- THAT ALL SCHOOLS THAT 11 OFFER PROGRAMS DO. IT IS FIRST AND FOREMOST AN OPPORTUNITY 12 FOR THE DIRECT STUDENTS -- STUDENT ATHLETES THEMSELVES TO 13 PARTICIPATE IN THOSE SPORTS AND ENJOY THE ADVANTAGES OF BEING 14 A STUDENT ATHLETE.