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NCAA Athletes Can’t See|Fox & Big 10 Documents

(CN) - A federal judge ruled that the Big Ten Conference and Fox Broadcasting do not have to produce confidential documents in a class action that claims the NCAA forced thousands of college athletes to sign away rights to their own images and cheated them of a share in the profits from DVD and video games.

In the 2009 class action filed in San Francisco, former UCLA basketball star Edward O'Bannon claimed the NCAA 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 claimed the NCAA, Electronic Arts and Collegiate Licensing Company conspired to restrain trade by fixing their compensation to zero dollars, in violation federal antitrust laws.

The basketball and football players 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.

In an order on Monday, Magistrate Judge Nathanael Cousins denied the athletes' motion to compel productions of the documents. Cousins said the request was 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, and 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," Cousins wrote.

Cousins said the athletes must also pay sanctions to the companies for the costs of the motion to compel documents, based on the argument that negotiating with the companies would be "fruitless."

"Despite the significant efforts made by the nonparties to articulate with specificity the reasoning for their relevance, privilege, and undue burden objections and to continue the negotiations with respect to the scope of the document requests, there is no evidence that antitrust plaintiffs considered additional limitations to the breadth of the document requests based on these objections and invitations to negotiate," Cousins wrote.

"Because the document requests are overly broad, each of the three motions to compel brought by antitrust plaintiffs is DENIED. The nonparties must produce documents only to the extent described above. Additionally, because antitrust plaintiffs did not make reasonable attempts to avoid imposing an undue burden on the nonparties, sanctions against antitrust plaintiffs are warranted under Rule 45. By March 14, 2012, the nonparties may file a motion for sanctions in accordance with Civil Local Rule 7-8 that includes detailed billing statements itemizing the attorneys' fees and costs they incurred in connection with the motions to compel resolved in this order. Antitrust plaintiffs may file an opposition no more than seven days after the nonparties file a motion for sanctions."

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