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Fox Fights Discovery in NCAA Antitrust Case

LOS ANGELES (CN) - Fox does not want to let Bill Russell and Oscar Robertson look at broadcasting agreements with the NCAA, in a fight over video games.

The athletes claim that the NCAA, its for-profit partner Collegiate Licensing Co. and video game-maker Electronic Arts (EA) used their "names, images and likenesses" without paying them.

Fox Broadcasting is not a defendant in the antitrust case. This article is based on a Joint Stipulation on Motion to Enforce Fox Broadcasting Co.'s Responses to Plaintiffs' Subpoena, filed on Jan 5 in Federal Court. The cutoff date for discovery in the case is Jan. 31, according to the document.

"Plaintiffs allege that the NCAA accomplishes its scheme in part by requiring all student athletes, as a condition of their eligibility to compete in NCAA athletic events, to sign a form each year that purports to relinquish in perpetuity all rights to the commercial use of their names and images, even after they graduate and are no longer subject to NCAA rules," the class says.

The athletes say the release forms and NCAA rules allow licensees and broadcasters to use "footage containing the images and likenesses of student athletes, thus creating a broad range of multimedia revenue streams for themselves. These revenue streams flow from, among other things, 'classic' games shown on cable television networks owned by Fox Broadcasting Co. ('Fox') and others, sales and rentals of DVDs of game films, sales of on-demand game films, and 'stock footage' for corporate advertisers and video games. The complaint alleges that the 'collegiate licensing market' generates billions in revenues for the NCAA and its member institutions while the former players, whose names, images and likenesses are exploited to generate this money, make nothing."

The players add: "Fox is an integral source of information regarding plaintiffs' antitrust claims involving the licensing, sale, and use of former student athletes' names, images and likeness. Fox, along with NCAA member conference the Big Ten, jointly own the Big Ten Network. Plaintiffs allege that the NCAA, and its member schools and conferences, worked with various third parties to 'monetize' the student athletes' names and images by selling, licensing, and marketing them to businesses and consumers (such as Fox and the Big Ten Network)." (Parentheses in document.)

"The television contracts and licensing agreements sought by the subpoena demonstrate how NCAA rules and regulations are used to carry out this scheme and the ways in which they affect the future rights of student athletes and must be produced," the class claims.

But Fox claims that its TV and broadcast agreements are irrelevant to the players' claims.

"Although an athlete may insist on being paid when an advertiser uses his or her image to endorse a restaurant or sell cars, it is well settled that television networks may freely broadcast and distribute footage of sporting events without obtaining each participant's consent," Fox states in the joint stipulation. "This applies to live broadcasts as well as re-broadcasts on television or online. Any contrary rule would severely infringe on the public's First Amendment right of access to newsworthy events and matters of public interest. Indeed, as a practical matter, if a television network like Fox were required to obtain consent from, and compensate, every single athlete, coach, cheerleader, and spectator before broadcasting a sporting event, it would be impossible to continue televising sports. Tellingly, plaintiffs have not sued Fox or any other television network because they know full well that sports broadcasts are privileged under California law and the First Amendment."

Fox claims that the athletes' demands are based "on the novel and farfetched assertion that that student athletes are arguably entitled to a share of the revenues generated from Fox's broadcast of college sports. Plaintiffs claim that Fox's television broadcast agreements would shed light on their antitrust injures because their damages supposedly include millions of dollars in lost television revenue. But plaintiffs' claim of relevance is entirely without merit because Fox is not a defendant or alleged co-conspirator and has a statutory and constitutional right to televise sports without paying each athlete."

Fox claims that responding to the records request would be "unduly burdensome," and would "literally require hundreds of hours of labor and threaten to disrupt" the operations of Fox's "sister networks," which Fox does not control.

"Plaintiffs seek every single document that has ever mentioned plaintiffs' highly publicized lawsuit, regardless of context or substance. This alone evidences a classic fishing expedition, with no regard for relevance or burden on Fox, a nonparty to this lawsuit," Fox says.

It also objects to the release of "highly confidential information, such as nonpublic contracts, financial terms, revenue information, and negotiations."

"Plaintiffs' lawsuit against the NCAA does not give plaintiffs unbridled authority to inspect the books and records of a non-party based solely on the fact that the non-party may have done business with another non-party that, in turn, has a business relationship with a named party," Fox says.

The broadcaster says it offered excerpts of television agreements which mentioned student athlete licensing rights, as well as "non-privileged correspondence between Fox and other parties" involved in the lawsuit.

But Fox says the players rejected its "reasonable proposal" out of hand.

The athletes are represented by Jon King with the Hausfeld law firm of San Francisco.

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