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Calling a Foul

Calling a Foul

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Published by Patricia Dillon

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Categories:Types, Research
Published by: Patricia Dillon on Jan 18, 2012
Copyright:Attribution Non-commercial


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Ex-college athletes fle suit over uncompensated use o likenesses
n 1995, Ed O’Bannon carried the University o Caliorniaat 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 deendingnational 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 NCAAtournament, 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-courtaccomplishments and more or his willingness to lead a classaction against the NCAA concerning the use o the imagesand likenesses o ormer players.Sixteen years aer starring in the NCAA tournament,
Bannon is the lead plainti in
O’Bannon v. NCAA
(alsoreerred to as
In Re NCAA Student-Athletes Name & Like-ness Licensing Litigation
), a lawsuit pending in U.S. DistrictCourt or the Northern District o Caliornia. Aer hisproessional basketball career ended, O’Bannon grew rus-trated that various entities continued to prot rom his andhis teammates’ collegiate success at UCLA while they re-ceived nothing. O’Bannon was connected with Sonny Vac-
APRIL 18, 2011
caro, who is credited with introducing com-mercialism to college basketball through hismarketing eorts on behal o sneaker com-panies. Vaccaro, now an outspoken advocateor the rights o student-athletes, connectedO’Bannon with an international law rm ex-perienced in dealing with high-prole classaction 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-legiateLicensing Company and video gamedeveloper Electronic Arts Inc., oen reerredto 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 plaintis in
O’Bannon v. NCAA
as-sert two central claims. First, they claimthat the deendants violate the ShermanAntitrust Act. Second, the plaintis claimthat the deendants 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 theirlikenesses, 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 proessional athletes attemptingto control the use o their likenesses and therevenue that oen 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 plaintis 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 plaintis allege that EA does not use thenames o players in its games, but identiesplayers by jersey number, height, weight,build, home state, skin tone and hair color.Te plaintis 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 identiying inormation.Te plaintis argue that the NCAA and theCollegiate Licensing Company have sanc-tioned the use o student-athletes’ likenessesto increase royalties in the increasingly popu-lar market. In their Consolidated Complaint,the plaintis state that as “the NCAA, CLCand EA know, heightened realism in NCAA videogames translates directly into increasedsales.” Te plaintis’ 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 deense 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, theollowing statement appears, requiring thestudent-athlete’s signature directly below:“You authorize the NCAA [or a third party acting on behal o the NCAA (e.g., hostinstitution, conerence, 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 dftzgerald@brodywilk.com
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 agreementprovides it, and the Collegiate LicensingCompany with authority to license the im-ages o its past and present student-athletesto companies such as EA and other multi-media entities that deal in classic sports.Te plaintis in
O’Bannon v. NCAA
willlikely attack the NCAA’s interpretation o this vague agreement on a number o levels.First and oremost, they will challenge thescope o the NCAAs asserted right to licensestudent-athletes’ likenesses. As Vaccaro,once stated, “When did it become the righto the NCAA to sell me into perpetuity?”Te Student-Athlete Statement does notmention the duration o the authorizationand does not specically state that that theNCAA can use a student-athlete’s name andpicture aer 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-Ath-lete Agreement is eligibility to participatein Division I athletics. Once the student-athlete’s collegiate career is over, he or shereceives nothing rom the NCAA. Accord-ingly, there appears to be no post-eligibility consideration or the NCAAs use o the like-ness o the student-athlete to produce licens-ing revenue.Second, the Student-Athlete Statementauthorizes the NCAA or a third party suchas a host institution, conerence or local or-

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