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A group of sports legends including Bill Russell and Oscar Robertson is attempting to compel Fox Broadcasting and ESPN into sharing information related to its agreements to televise college football and basketball games. The ex-athletes demand to see broadcasting contracts, revenue reports and any discussions relating to litigation in an ongoing class action that alleges the NCAA and its licensing partners conspired to exploit the names, images and likenesses of amateur athletes.
In the lawsuit, the plaintiffs take issue with the way that the NCAA forces collegiate sports stars to relinquish their rights as various colleges and corporations earn billions of dollars. When athletes agree to participate in Division 1 sports, they sign a release form that gives the NCAA the right to use names and images in perpetuity, even after these athletes graduate.
The plaintiffs argue that this is an unlawful restraint of trade, and last year, a judge denied a motion to dismiss. In doing so, the judge wrote that the plaintiffs’ antitrust claims were not only predicated on video game licensing agreements, but “also encompass agreements for rights to televise games, DVD and on-demand sales and rentals, and sales of stock footage of competitions, to name a few.”
Since then, the plaintiffs have been serving subpoenas to various non-parties, including NCAA member conferences and schools and various major television networks, including ESPN, which has deal to broadcast the Bowl Championship Series and a deal with the SEC, as well as Fox, which runs the Big Ten Network. (Presumably, CBS has also received a subpoena.)
The networks are resisting.
In turn, the plaintiffs have filed several motions to compel around the country, including in Connecticut, Alabama and California, in order to attain the sensitive documents.
In Connecticut, for instance, the plaintiffs told the court that “despite the fact that many ESPN commentators and personalities have publicly voiced support for and agreement with our case and claims…ESPN has refused to produce even a single document in response to the subpoena.”
ESPN has responded that the plaintiffs are resting on the “fallacious notion” that because it is a “downstream media license customer of NCAA,” plaintiffs are entitled to discovery of every document from the last six years relating to collegiate sports.
And Fox too is arguing against turning over its TV contracts, arguing that it is irrelevant to the case and burdensome.
“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,” says Fox in a statement to a Los Angeles court on Thursday.
The network goes on to say that any rule to the contrary would “infringe on the public’s First Amendment right of access to newsworthy events and matters of public interest” and that by requiring consent, “it would be impossible to continue televising sports.”
Fox says that the argument that athletes are entitled to a share of TV revenue is “farfetched” and that it has a constitutional right to televise sports without paying each athlete.
Are sports newsworthy events and do networks have a constitutional right to air live coverage without paying the NCAA too?
Of course, Fox doesn’t go that far, but the plaintiffs respond by saying they want the broadcast contracts because “they will 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.”
In making the request for documents, the plaintiffs signal that they intend to expand their pursuit of damages from the licensing of their images in video games to possibly “a broad range of multimedia revenue streams, generating billions of dollars of revenue to the NCAA and its members; revenue in which the student athletes do not share.”
Fox is not a defendant in this lawsuit at the moment, but the plaintiffs are stressing this is an antitrust case “against the NCAA and its co-conspirators” and that damages include anything that arises from a “price-fixing conspiracy and a group boycott/refusal to deal that has unlawfully foreclosed the class members from being compensated in the commercial exploitation of their names, images, and/or likeness following the conclusion of their NCAA eligibility.”
It’s no overstatement to say that with the latest developments, this case has the potential to change the face of collegiate sports on television.
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