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CALLING A FOULEx-college athletes fle suit over uncompensated use o likenesses

By DAN FITZGERALD

In 1995, Ed O’Bannon carried the University o Caliornia

at Los Angeles through the NCAA men’s basketball tour-

nament to a national championship. His 30 points and 17rebounds led UCLA to an 89-78 victory over the deending

national champion University o Arkansas and the obliga-

tory cutting down o the nets at the Kingdome in Seattle.

O’Bannon, named the Most Valuable Player o the NCAA

tournament, was the unquestioned star o March Madness

— 1995’s version o UConn’s Kemba Walker. In time, how-

ever, O’Bannon may be remembered less or his on-court

accomplishments and more or his willingness to lead a class

action against the NCAA concerning the use o the images

and likenesses o ormer players.

Sixteen years aer starring in the NCAA tournament,O’Bannon is the lead plainti in O’Bannon v. NCAA (also

reerred to as In Re NCAA Student-Athletes Name & Like-

ness Licensing Litigation), a lawsuit pending in U.S. District

Court or the Northern District o Caliornia. Aer his

proessional basketball career ended, O’Bannon grew rus-

trated that various entities continued to prot rom his and

his teammates’ collegiate success at UCLA while they re-

ceived nothing. O’Bannon was connected with Sonny Vac-

THIS ARTICLE IS REPRINTED WITH PERMISSION FROM THE APRIL 18, 2011 ISSUE OF THE CONNECTICUT LAW TRIBUNE. © COPYRIGHT 2011. ALM MEDIA PROPERTIES, LLC ALL RIGHTS RESERVED. DUPLICATION WITHOUT PERMISSION IS PROHIBITED. ALL RIGHTS RESERVED.



CONNECICU LAW RIBUNE 2APRIL 18, 2011

caro, who is credited with introducing com-mercialism to college basketball through hismarketing eorts on behal o sneaker com-panies. Vaccaro, now an outspoken advocateor the rights o student-athletes, connectedO’Bannon with an international law rm ex-perienced in dealing with high-prole class

action suits. A lawsuit ensued.O’Bannon v. NCAA is brought on behal

o ormer NCAA student-athletes againstthe NCAA and its licensing arm, the Col-legiate Licensing Company and video gamedeveloper Electronic Arts Inc., oen reerredto as EA Sports. Te action survived the de-endants’ Motion to Dismiss and has beenconsolidated with Keller v. Electronic Arts, asimilar lawsuit brought by ormer ArizonaState and Nebraska quarterback Sam Keller.

Improper Licensing

Te plaintis in O’Bannon v. NCAA as-sert two central claims. First, they claimthat the deendants violate the ShermanAntitrust Act. Second, the plaintis claimthat the deendants improperly license and/or use players’ likenesses in violation o their right o publicity. Tis article providesa brie snapshot o the right o publicity is-sue, which has implications or past, pres-ent and uture student-athletes, as well asthe NCAA’s concept o amateurism.

Te phrase “right o publicity” was intro-

duced by Judge Jerome Frank in Haelan Lab-oratories v. Topps Chewing Gum, a suit over acontract that provided the plainti with theexclusive right to use a baseball player’s pho-tograph on baseball cards:

[A] man has a right in the publicity valueo his photograph, i.e. the right to grant theexclusive privilege o publishing his picture...Tis right might be called a ‘right o public-ity.’ For it is common knowledge that many prominent persons (especially actors andball players), ar rom having their eelingsbruised through public exposure o their

likenesses, would eel sorely deprived i they no longer received money or authoringadvertisements, popularizing their counte-nances, displayed in newspapers, magazines,buses, trains and subways.

Since its introduction, the right o public-ity has become a common subject o lawsuitsbrought by proessional athletes attemptingto control the use o their likenesses and therevenue that oen fows rom such use. Al-though laws regarding an individual’s rightto publicity vary among states, the generalrule is that a person’s name or likeness may

not be used without consent in a commercialendeavor.

In O’Bannon v. NCAA, the plaintis al-lege that EA uses the likenesses o student-athletes in contravention o NCAA bylaws,which generally prohibit the commercialuse o a student-athlete’s image or likeness.

Te plaintis allege that EA does not use thenames o players in its games, but identiesplayers by jersey number, height, weight,build, home state, skin tone and hair color.

Te plaintis urther allege that EA im-properly circumvents prohibitions on thecommercial use o student-athletes’ names by omitting player names, but allowing gamersto upload entire rosters, including the play-ers’ names and other identiying inormation.Te plaintis argue that the NCAA and theCollegiate Licensing Company have sanc-tioned the use o student-athletes’ likenesses

to increase royalties in the increasingly popu-lar market. In their Consolidated Complaint,the plaintis state that as “the NCAA, CLCand EA know, heightened realism in NCAA

videogames translates directly into increasedsales.” Te plaintis’ claims are not limitedto EA’s video games and also include othermedia and broadcast agreements, such as therebroadcast o classic games, which use theimages o ormer student-athletes.

NCAA’s Defense

Te oundation o the NCAA’s deense isan agreement that each Division I student-athlete must sign prior to commencingparticipation in NCAA athletics. Te Stu-dent-Athlete Statement, a seven-page ormdocument, covers items such as eligibility,amateur status, drug tests and previous in-

volvement in NCAA rules violations.It also includes a section entitled “Pro-

motion o NCAA Championships, EventsActivities or Programs” at the bottom o the ourth page. Under this heading, theollowing statement appears, requiring the

student-athlete’s signature directly below:“You authorize the NCAA [or a third party acting on behal o the NCAA (e.g., hostinstitution, conerence, local organizingcommittee)] to use your name and picturein accordance with Bylaw 12.5, includingto promote NCAA championships or otherNCAA events, activities or programs.”

Te legal arguments or both sides have

Daniel B. Fitzgerald is an associate at Brody Wilkinson PC in Southport, and pub-

lisher o the blog Connecticut Sports Law (www.ctsportslaw.com). He can be reached at

[email protected]

DAN FITZGERALD

been cov-ered by themedia indetail, in-cluding onthe recentPBS “Front-

line” eature“Money andMarch Mad-ness.” It isanticipatedthat theNCAA willargue thatthis sectiono the Student-Athlete Statement agreemenprovides it, and the Collegiate LicensingCompany with authority to license the im-ages o its past and present student-athletes

to companies such as EA and other multi-media entities that deal in classic sports.

Te plaintis in O’Bannon v. NCAA willikely attack the NCAA’s interpretation othis vague agreement on a number o levelsFirst and oremost, they will challenge thescope o the NCAA’s asserted right to licensestudent-athletes’ likenesses. As Vaccaroonce stated, “When did it become the righto the NCAA to sell me into perpetuity?”Te Student-Athlete Statement does nomention the duration o the authorizationand does not specically state that that theNCAA can use a student-athlete’s name andpicture aer he or she leaves school.

Even i the ederal court nds that theStudent-Athlete Agreement does allowthe NCAA to license the rights o student-athletes or video gaming and other mediapurposes while they are in school, there is anargument that this agreement expires oncea student-athlete ceases to be a student. Teconsideration received or the Student-Athlete Agreement is eligibility to participatein Division I athletics. Once the student

athlete’s collegiate career is over, he or shereceives nothing rom the NCAA. Accordingly, there appears to be no post-eligibilityconsideration or the NCAA’s use o the like-ness o the student-athlete to produce licens-ing revenue.

Second, the Student-Athlete Statemenauthorizes the NCAA or a third party suchas a host institution, conerence or local or



3APRIL 18, 2011

ganizing committee, to use a student-ath-lete’s name or picture in connection with thepromotion o NCAA championships, eventsand activities. However, the plaintis aptly point out that EA is not a third party actingon behal o the NCAA and is not promotingNCAA championships, events or activities.

Lastly, the plaintis will likely argue thata 17- or 18 year-old student athlete has noconcept o the rights that they are signingaway. Aer all, student-athletes typically donot have the opportunity to consult with anattorney beore signing the Student-AthleteStatement. But what choice do the student-athletes have? I they reuse sign the agree-ment, they won’t receive a scholarship and orwon’t be eligible to compete. Te agreement

appears to be a classic contract o adhesionthat may be void on the grounds that it iscontrary to public policy.

Te NCAA is in a precarious position.Te NCAA Constitution states that “stu-dent-athletes should be protected rom ex-ploitation by proessional and commercial

enterprises.” Yet, according to Steve Wiebergo USA Today, the NCAA bsketball tourna-ment generates more than $771 million peryear in television rights alone. ypically, indealing with lawsuits brought by presentstudent-athletes, the NCAA has signicantleverage. Protracted litigation can cost astudent-athlete his or her eligibility and ad-

versely impact his or her prospects to com-pete proessionally. But O’Bannon v. NCAA

only involves ormer players, removing romthe equation the important actor o timeMoreover, Ed O’Bannon, likeable and engaging, appears to be the perect plainti tolead this class action.

I successul, O’Bannon v. NCAA wouldallow ormer players to be compensated

or the use o their images and likenesses. Although the lawsuit does not involvepresent players, O’Bannon v. NCAA couldtrigger other lawsuits by current playerschallenging the NCAA’s right to protrom student-athletes. Ultimately, thiscase could be the rst in a series o eventsthat reshape the landscape o big-time collegiate athletics. Once again, all eyes areon Ed O’Bannon. n

THIS ARTICLE IS REPRINTED WITH PERMISSION FROM THE APRIL 18, 2011 ISSUE OF THE CONNECTICUT LAW TRIBUNE. © COPYRIGHT 2011. ALM MEDIA PROPERTIES, LLC ALL RIGHTS RESERVED. DUPLICATION WITHOUT PERMISSION IS PROHIBITED. ALL RIGHTS RESERVED.

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