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the first hearing for Judge Wilken is unrelated to NCAA. Appears to be a settlement of a 12-year-long case related to wireless phone service.
Ok... The Alston hearing is up now. Lawyers from 3 Plaintiff firms and several Defendant firms. A bit of a chaotic start w/people having trouble knowing whose turn it is.
The hearing is over the clarifications the NCAA requested as to what Judge Wilken meant when she said they could cap academic awards at the limit set by athletic awards. NCAA wants a specific dollar amount (around $5,600). Plaintiffs say the amount is higher.
Karen Lent is arguing for NCAA that the trial record says $5,600.
Judge asks the NCAA what they think the maximum is.
Lent begins to say it's not possible to calc a max, but then oom freezes and they get distracted
Judge asks the NCAA what they think the maximum is.
Lent begins to say it's not possible to calc a max, but then oom freezes and they get distracted
*zoom (obviously).
Judge Wilken asks again: What is NCAA's position on what the true max is.
Lent replies: It is not possible to calculate a maximum number, b/c the NCAA rules require assumptions. She references @daniel_rascher's work in the case.
Lent replies: It is not possible to calculate a maximum number, b/c the NCAA rules require assumptions. She references @daniel_rascher's work in the case.
Lent says that even though that means people could get more than $5,600, that $5,600 should be the limit for evidentiary reason.
Now Jeffrey Kessler is up.
Now Jeffrey Kessler is up.
Kessler says: Judge Wilken did not pick a specific number, but rather that the cap should be tied to the athletic award max, whatever it is. And left it to be calculated.
Kessler says the table has dollars for all but one award. Wilken is a limit for the # of awarding agencies.
Kessler says the table has dollars for all but one award. Wilken is a limit for the # of awarding agencies.
Wilken asks which of the awards are in-kind awards (like the $ value of the trophy) vs a cash/cash-equiv. cites Heisman Trophy as example.
Kessler argues it's not "what do they give" but rather "what is allowed"
Kessler says that even if you zero out the the unlimited awards, the maximum is clearly above $5,600
[Ed note: @daniel_rascher
shows it was more than double $5,600]
[Ed note: @daniel_rascher
shows it was more than double $5,600]
Kessler suggests that if there is going to be a dollar amount set it should be based on the true max.
Kessler suggests the Defs believe that the Court intended $5,600.
Kessler suggests the Defs believe that the Court intended $5,600.
Wilken clarifies the NCAA could always pick a higher cap. or that schools could choose to give less.
She clarifies that her injunction was NOT about a dollar amount but a concept: the cap can be no lower than what is currently possible.
She clarifies that her injunction was NOT about a dollar amount but a concept: the cap can be no lower than what is currently possible.
She asks the NCAA to go through the same tables that @daniel_rascher did and come up with their own number.
Wilken suggests they all agree that $5,620 covers 2/3 of the awards, so she asks NCAA to value the 1/3 the NCAA says is unknowable
Lent says the NCAA disagrees.
Wilken suggests they all agree that $5,620 covers 2/3 of the awards, so she asks NCAA to value the 1/3 the NCAA says is unknowable
Lent says the NCAA disagrees.
Lent says the $5,620 is the NCAA's view of what all 3 sections represents. So there isn't agreement on the $5,620.
Lent reargues that Wilken *meant* $5,620 max. (Despite Wilken just saying otherwise).
Wilken says her inunction says "could receive" not "did receive"
Lent reargues that Wilken *meant* $5,620 max. (Despite Wilken just saying otherwise).
Wilken says her inunction says "could receive" not "did receive"
Wilken repeats the NCAA should estimate a real number (not just say $5,620 is the only number).
Asks them to do that by Nov 23.
The Alston hearing is over now. Moving to House/Oliver v NCAA
Asks them to do that by Nov 23.
The Alston hearing is over now. Moving to House/Oliver v NCAA
Steve Berman is lead for House & Oliver (as well as Ben Siegel and Emilee Sisco). Generally the same Defendant lawyers.
the hearing is a MtD (motion to Dismiss) and then she says "don't let me forget the case management schedule" which seems to me means she thinks the case isn't ending today.
Rakesh Kilaru is the lead lawyer for NCAA, he is up first b/c they are moving to dismiss the case.
Wilken asks him about a subclass issue [which I don't understand well enough to explain via tweet]
Wilken asks him about a subclass issue [which I don't understand well enough to explain via tweet]
apparently something in the NCAA's MtD motion misunderstood something in the Ps' complaint.
There's also a technical issue related to whether Oliver has standing [There are 2 cases, one by House and one by Oliver]
There's also a technical issue related to whether Oliver has standing [There are 2 cases, one by House and one by Oliver]
Apologies for being less fluent in the Oliver issues. I spent 6 years on Alston so I know that case much better.
Kilaru is arguing it is covered by the O'Bannon or the Alston case. Wilken says Ps argument is the facts are different.
Kilaru is arguing it is covered by the O'Bannon or the Alston case. Wilken says Ps argument is the facts are different.
NCAA is making the usual Stare decisis arguments [that this has been dealt with] from either Alston or O'Bannon.
Kilaru says the 9th Circuit says it's one or the other.
Says the rules haven't changed (ignoring that there are pending changes set for vote in Jan)
Kilaru says the 9th Circuit says it's one or the other.
Says the rules haven't changed (ignoring that there are pending changes set for vote in Jan)
Kilaru seems to be leaning heavily on the fact that the new NIL proposal is not YET approved.
Judge Wilken says Plaintiffs' allege new "admissions against interests" by NCAA folks.
That means people who said NIL was bad have since said NIL is good.
That means people who said NIL was bad have since said NIL is good.
Kilaru says for House to win there would need to be a change in the rules and there has not been a change. I wonder if he thinks Judge Wilken doesn't know the rules are literally pending a change.
Now he says "comments about pending changes" don't suffice and are (per 9th circuit) are "premature"
Wilken appears to know what's up. She says "I suppose Plaintiffs could wait" implying she knows the rules will change in January.
ooh -- Judge Wilken references Judge Milan Smith (9th circuit judge) who argued in Alston that the NCAA shouldn't be allowed to argue consumer demand arguments b/c those are outside of the relevant market. (and Smith also said the market def was wrong).
That's a can of worms!
That's a can of worms!
Kilaru says that Smith was a concurrence so not a majority opinion, so it can be ignored.
(to be clear, I think it's an important can of worms and one I think should be opened, but that's not where I expected this to go)
side discursion on whether Unjust Enrichment can be a stand-alone cause of action. Beyond my expertise to tweet about.
Steve Berman is up. Says Alston precludes a stare decesis ruling, saying the Facts always matter in
... in rule of reason antitrust cases.
He says Alston is very clear on not being on NIL, including in Judge W's rulings on evidence, when she excluded evidence on NIL.
He says Alston is very clear on not being on NIL, including in Judge W's rulings on evidence, when she excluded evidence on NIL.
He turns to O'Bannon.
Says that was about TV, Video Games, and Jerseys, but this is about Social Media. Judge Wilken says those things didn't exist yet. Berman agrees.
Says that was about TV, Video Games, and Jerseys, but this is about Social Media. Judge Wilken says those things didn't exist yet. Berman agrees.
Berman argues the Plaintiffs' social media is monetized by schools but can't be monetized by the athletes themsevles.
Judge Wilken asks question of how conflicts (e.g., b/c a Nike school and an adidas athlete). Berman suggests maybe the rule should be limited to doing endorsements w/the school's brands.
Berman explains that in O'Bannon they said these sorts of NIL deals would destroy college sports and now they are all saying it's fine.
Berman is explaining there is a distinction b/w market definition (market for labor) and measure of damages (loss of group licenses).
Judge Wilken suggest "it might be tempting" to distinguish this case from O'Bannon b/c this is aimed at 3rd parties. But then she asks whether there are also payments from colleges alleged. I think Berman agrees it's both.
(I hope they finish soon b/c my brain is running out of steam. I am out of "court shape")
If Oliver is precluded by res adjudicata, Wilken and Berman agree that it would then mean ALL Alston settlers are precluded. But he then says that'd be weird since Alston explicitly didn't cover NIL.
Wilken asks Berman what the state NIL laws mean for the case. Berman suggests the legislatures, as the representative of the people, say consumers DO want NIL for athletes.
Wilken suggest she might want briefing on this, plus also the Judge Smith market thing.
Wilken suggest she might want briefing on this, plus also the Judge Smith market thing.
Berman explains that if Milan is relevant, then the NCAA's procompetitive justification (PCJ) fails b/c Smith said the benefits have to be in the relevant market and the PCJ is about downstream consumers.
Wilken asks if another difference is different LRAs (less restrictive alternatives). Such as "no limitation on 3rd party payments"
She asks whether Berman would limit case to 3rd party payments.
He says that was just an example and needs discovery before he can say.
She asks whether Berman would limit case to 3rd party payments.
He says that was just an example and needs discovery before he can say.
Kilaru is back up. Says Judge Wilken rejected a 3rd Party payment LRA in O'Bannon.
Says that means no 3rd party payment case should be allowed [even though the NCAA is on cusp of allowing it]
Says the new case's direct school payment is just Alston re-pled.
Says that means no 3rd party payment case should be allowed [even though the NCAA is on cusp of allowing it]
Says the new case's direct school payment is just Alston re-pled.
Kilaru tries to argue there is no right of athletes to broadcast, and she explains she understands, kind of implying he's trying to explain stuff to her she knows better than him. (The Great Zacchini case)
Kilaru says schools do NOT monetize students social MEDIA but admits the schools use the athletes NIL which the schools do monetize.
Kilaru pushes back on Berman's claim that the fact that the NCAA is considering new rules is a good reason to dismiss.
Now they are doing case management.
Judge Wilken says NO on a stay of discovery. Start on documents. [sure seems like a sign which way she'll rule]
Judge Wilken says NO on a stay of discovery. Start on documents. [sure seems like a sign which way she'll rule]
Dec 11 for a stip on discovery.
She says she is aiming to rule on MtD by Dec 1, so the dates can be set.
Parties/new Claims added by Jan 1.
Defs' Answer around Feb 1.
She says she is aiming to rule on MtD by Dec 1, so the dates can be set.
Parties/new Claims added by Jan 1.
Defs' Answer around Feb 1.
Wilken rules all docs in Alston and O'Bannon are deemed produced her.
NCAA can point to specific docs if it should be removed.
Kilaru asks for a meet & confer. Wilken is saying she's doing NCAA a favor, why are they against it?
NCAA can point to specific docs if it should be removed.
Kilaru asks for a meet & confer. Wilken is saying she's doing NCAA a favor, why are they against it?
Says it seems like a "no brainer" and moves on.
Now there is a discussion of whether databases need to be produced with paper docs. Lawyers all ostentatiously declaim any knowledge of data and data analysis. (this is why they hire folks like me)
Class Cert deadline is tentatively set on Nov 22, 2021.
Deadline to depose witness through Jan 31, 2022.
Opposition Feb 28, 2022.
deadline for depose, March 31.
Class Reply, April 30.
no Depos for Reply.
Deadline to depose witness through Jan 31, 2022.
Opposition Feb 28, 2022.
deadline for depose, March 31.
Class Reply, April 30.
no Depos for Reply.
May 31, 2022 would be Hearing of Class Cert.
June 30, 2022 is her goal for cert ruling.
June 30, 2022 is her goal for cert ruling.
Now I lost her on the Merits reports. 2nd half of 2022.
(the dogs barked too much)
Looks like the Dispositive motions (like MSJ) are due in early 2023.
(the dogs barked too much)
Looks like the Dispositive motions (like MSJ) are due in early 2023.
Those are Ps' motions.
Defs then reply (and counter MSJ) in AMrch 2023.
Ps reply to that by April 21, 2023.
Defs reply to that May 31 2023
I lost the thread again, but I think she said trial in October 2023 & then admitted it'll probably slip.
Asks lawyers to memorialize it
Defs then reply (and counter MSJ) in AMrch 2023.
Ps reply to that by April 21, 2023.
Defs reply to that May 31 2023
I lost the thread again, but I think she said trial in October 2023 & then admitted it'll probably slip.
Asks lawyers to memorialize it
Berman says he misses his colleagues due to COVID. Judge W says she hopes some of these hearings are in person.
Judge Cousins is assigned as the magistrate, which is a good time for me to remind you I really want to be a magistrate so if you have any pull, please nominate me.
Judge Cousins is assigned as the magistrate, which is a good time for me to remind you I really want to be a magistrate so if you have any pull, please nominate me.
Hearing is over.
And I am zonked!
