Fox Says Lawsuit Could Stop Sports Broadcasts

OAKLAND, Calif. (CN) - A lawsuit by student athletes who claim the NCAA deprived them of the right to profit from their own images could have catastrophic effects on game reporting, Fox Broadcasting claims in an amicus brief.

Fox and Big Ten Network filed an amicus brief in the class action from a group of former college football and basketball players who sued the NCAA on antitrust claims.

The heated legal battle, now in its fifth year, involves the NCAA's use of the athletes' images in video games, merchandise and other promotional materials.

In the first complaint , former UCLA basketball player Ed O'Bannon said the National Collegiate Athletic Association violated his and other athletes' right to make money off their likenesses.

U.S. District Judge Claudia Wilken refused to dismiss the former athletes' third amended class action in October 2013.

The next month she certified a class of athletes who seek an injunction against the NCAA that would end the prohibition of athletes entering their own licensing deals.

Last week Wilken allowed attorneys for Fox Broadcasting and the Big Ten Network to submit a brief arguing that sports broadcasts are entitled to full First Amendment protection.

"What started as a lawsuit by former student athletes to share in the profits from T-shirts, pennants, and coffee mugs that bear their images has snowballed into a frontal assault on the sports broadcasters' (and other news organizations') freedom to televise sports and the public's right to be informed about newsworthy matters of substantial interest to large segments of the populace," wrote attorney Richard Stone of Jenner & Block.

The broadcasters argued that footage of sports games are "communicative news reporting, not commercial speech."

If the athletes won their challenge, broadcasters would have to "secure a release from each and every player on the field" as well as "every marching band member, cheerleader, coach, trainer, or fan in the stands," Stone claimed.

Because sports broadcasts should be considered "matters of public concern," the broadcasters say, televised college sports games are entitled to full First Amendment protection.

"As the Supreme Court made clear more than 70 years ago, the fact '[t]hat books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment,'" Stone wrote, citing the ruling in Joseph Burstyn, Inc. v. Wilson.

The broadcasters claimed that a victory for the plaintiffs' could lead to a situation where others who indirectly participate in sports broadcasts could demand compensation.

"If this court takes the unprecedented step of conferring on college athletes the power to restrain broadcasts of sporting events in which they participate, other participants - such as referees, coaches, cheerleaders, team mascots, or even fans - will probably demand the same rights," Stone wrote.

"A small group of 'holdouts' or even one disgruntled participant conceivably could block the sports broadcasters from televising the most popular sporting events in the United States, cutting off millions of citizens from matters of great public interest."

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