(CN) – Former college athletes have asked for relief from orders to pay the attorneys’ fees of entities could shed light on whether the NCAA steamrolled over their image-ownership rights and hoarded all the profits.
In a 2009 class action, former UCLA basketball star Edward O’Bannon claimed the National Collegiate Athletic Association forced students to sign the misleading “Form 08-3a” if they wanted to play NCAA sports. This form allegedly “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.
The athletes served subpoenas to The Big Ten Conference, The Big Ten Network and Fox Broadcasting Company, which are not defendants in the action.
Big Ten and Fox objected to the requests 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.”
In a motion on Thursday, the athletes appealed Cousins’ sanction order to U.S. District Judge Claudia Wilken.
The athletes took issue with Cousins’ view that they showed an “unwillingness to compromise during the meet and confer process,” “refused to narrow the scope of their document requests,” “rejected reasonable attempts to compromise” and “did not take advantage of the discovery they obtained from other sources in tailoring their requests.”
“Even if these findings were supported by the record (and they are not), they are not tantamount to bad faith and cannot justify an award of sanctions,” the motion says.
“This is especially true in this case because plaintiffs won significant portions of the disputes at issue,” according to the motion authored by Michael Lehmann with the San Francisco firm Hausfeld LLC. “Judge Cousins granted discovery as to television contracts and exemplar release forms. He did not accept the third parties’ arguments that copyright laws, First Amendment privileges or principles or amateurism barred the requested discovery.” (Italics in original.)
The athletes asked the court to set aside Judge Cousins’ order and sanctions award.