August 07, 2012 6:25pm PT by Eriq Gardner
Judge Orders NCAA to Turn Over TV Licensing Revenue Documents
One of the remarkable standouts of this year's Summer Olympics is 17-year-old swimmer Missy Franklin, who after winning four gold medals in London has signaled her intent to forgo millions of dollars in potential endorsements in favor of a chance to compete in college. After all, Franklin won't be able to accept sponsor money if she wants to maintain her amateur status, which the NCAA requires for athletic eligibility.
Then again, an ongoing lawsuit against the NCAA and its licensees like Electronic Arts hopes to change that situation. The plaintiffs assert that the defendants have engaged in an antitrust conspiracy to fix at zero the amount of compensation that athletes like former UCLA basketball star Ed O'Bannon can receive for the use of their names, images and likenesses. The plaintiffs are seeking to have the waivers that NCAA athletes sign that give up their rights to "name and image" be declared null and void.
On Monday, the athletes scored a small victory by getting a California judge to order the NCAA to turn over information relating to revenue that its members receive from broadcast television, radio and Internet rights as well as reports tied to income from sponsorships, licensing, sales of advertising, and more.
Barring any settlement, this dispute will not end for some time -- perhaps not by the time Franklin is competing for a college-level championship -- but the big challenge to the NCAA's "amateurism" rules is going forward.
The plaintiffs in the case have been pushing for details about the NCAA's income from media sources for quite some time. They say they need it because it "may form the basis of a calculation of damages" and "demonstrate the magnitude of the benefit that the NCAA and its members receive as a result of exploiting the name, likeness and/or image rights of college athletes."
Earlier this year, the plaintiffs went on a nationwide scavenger hunt to find a judge willing to compel third parties like Fox and TBS to hand over their "highly sensitive" TV contracts. Many of the requests landed under the review of U.S. magistrate judge Nathanael Cousins in San Francisco, who found the requests "overly broad" and "unduly burdensome."
But on Monday, Judge Cousins was more lenient on the plaintiffs' motion to compel the NCAA itself into turning over revenue reports.
The NCAA, which has resisted efforts to pay collegiate athletes over concerns that commercialism would overwhelming amateurism, fought the handing over of certain financial documents over their relevancy as well on First Amendment grounds.
The athletic association has already turned over some of its agreements with licensees, but there were many contracts that were signed at the conference or university level. The NCAA argued that disclosure of the requested information "could chill the willingness and ability of the NCAA and its members to engage in candid and sensitive communications going forward, based on their fear that a future litigant might also seek discovery relating to those communications.”
Judge Cousins finds that "unpersuasive" because the NCAA failed to articulate its reasoning and because the confidential information such as TV contracts would be subject to a protective order whereby the defendants would be prohibited from sharing it. (Of course, leaks sometimes happen in cases like this.)
The type of information to be handed over goes beyond run-of-the-mill reports of how much money that a conference like the Big Ten gets paid for live games. That's included too, of course, but the plaintiffs have also been seeking stuff like the millions of dollars purportedly reaped from rebroadcasts of classic games, DVD highlight films, streaming, stock footage licensing to corporate advertisers, photograph sales, and more.
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