(CN) – The Big Ten Conference and Fox Broadcasting have rebuffed an “unreasonable and stubborn” request to disclose confidential documents to the NCAA athletes suing over image-ownership rights.
In the 2009 class action filed in San Francisco, former UCLA basketball star Edward O’Bannon claimed the National Collegiate Athletic Association forced students to sign the misleading “Form 08-3a” if they wished to play NCAA sports. O’Bannon said the agreement “commercially exploits former student athletes” by giving the NCAA the right to profit from their images without compensation long after the athletes have left school.
The athletes say the NCAA, Electronic Arts and Collegiate Licensing Company violated federal antitrust laws and conspired to restrain trade by fixing their compensation to $0.
They served subpoenas to The Big Ten Conference, The Big Ten Network, and Fox Broadcasting Company, which are not defendants in the original complaint.
Big Ten and Fox objected to the subpoenas as overly broad, and the athletes narrowed the scope of the documents they requested.
But U.S. Magistrate Judge Nathanael Cousins denied that narrowed request as well in February, finding it still too broad.
The Big Ten Network and Fox agreed to produce television broadcast and licensing agreements that involve NCAA Division I football and basketball, as well as documents about athletes’ contract negotiations that mention publicity rights.
Cousins found that compromise to be reasonable, “given the confidential nature of the agreements.”
“The document requests … are not tailored to minimize the potential prejudice that the nonparties could suffer by releasing such information,” the judge wrote.
He also ordered the athletes to pay Big Ten and Fox sanctions, covering the costs of their litigation based on the claim that negotiating would be “fruitless.”
The athletes have appealed the sanction order to U.S. District Judge Claudia Wilken, but Fox and Big Ten filed new motions Wednesday calling for further reproach.
“Despite FBC’s and BTN’s best efforts to reach a compromise and avoid motion practice, antitrust plaintiffs were unreasonable and stubborn,” the 12-page motion states. “They failed to narrowly tailor their requests, disregarded the burdens imposed on the nonparties, and rejected a reasonable compromise.”
“Antitrust Plaintiffs then cut short the parties’ negotiations and filed a premature motion to compel even though further discussions may have been fruitful,” according to the motion authored by Jenner & Block attorney David Singer in Los Angeles.
Cousins has already found that Fox and Big Ten made “significant efforts” to explain why they could not produce the requested documents, the companies claim.
“In sharp contrast, antitrust plaintiffs aggressively and stubbornly pursued overly broad discovery against the nonparties and failed to genuinely meet and confer in good faith,” the motion states.
Fox claimed it incurred more than $27,000 in costs, and Big Ten said it incurred nearly $24,000. The athletes should be liable, according to the companies.