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Conferences, networks haggle over disclosure in NCAA court cases

The power five conferences are turning over financial information — including television contracts — in two lawsuits brought by student athletes challenging NCAA rules, as lawyers for the conferences, the plaintiffs and television networks negotiate how to keep proprietary information about the deals out of the public eye.

The two cases, Jenkins v. the NCAA and Alston v. the NCAA, are deep in the discovery stage. Lawyers for the plaintiffs; attorneys for the ACC, Big Ten, Big 12, Pac-12 and SEC; and attorneys for CBS, ESPN/ABC and Fox have been haggling for months over what the conferences must disclose and how much information will be redacted or filed under seal.

The Jenkins case, in which Winston & Strawn partner Jeffrey Kessler is the plaintiffs’ lead attorney, contends the NCAA’s rules limiting the value of an athletic scholarship for men’s football and basketball and women’s basketball amount to price fixing and seeks an injunction. A plaintiff victory could upend the NCAA’s amateur system in favor of an open market that would allow athletes to benefit financially in ways they cannot now.

The Alston case, being argued for the plaintiff by Hagens Berman partner Steve Berman, also alleges that NCAA scholarship limits violate antitrust laws but seeks damages for student athletes.

The cases are expected to be tried separately as early as next year but have been consolidated during the discovery stage, where the student athletes’ lawyers have been seeking — and getting — information about what college basketball and football powers receive in sponsorship and television rights dollars, that up to now has been private.

Lawyers have fought in multiple motions and hearings on the request for financials. The plaintiffs’ lawyers assert that the amounts of money the conferences are making from college football and basketball are important to the cases, and a magistrate hearing the motions agreed at an August hearing.

The networks are not parties in the litigation but entered the case as “intervenors” early this year. Networks expressed concerns that the leak of the proprietary information could hurt their businesses. “Given the confidential nature of these negotiations, any insight into the terms of these agreements would be leveraged by both the Conference Defendants and other broadcasters against the Fox Networks in future negotiations,” Fox Broadcasting said in a filing.

The cases are being heard in the courtroom of federal Judge Claudia Wilken, who ruled for Ed O’Bannon in his case against the NCAA. Last week, the Supreme Court declined to hear appeals of the 9th U.S. Circuit Court of Appeals decision in the case.

Legal experts said that was good for the Jenkins and Alston plaintiffs. If the high court had heard the appeals, “It probably would have put the brakes on the Alston and Jenkins cases,” said Matt Mitten, executive director of the National Sports Law Institute at Marquette University.

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