CONNECICU LAW RIBUNE
APRIL 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 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., 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.
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 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 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’ likenessesto 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.
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 thestudent-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 firstname.lastname@example.org
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 plaintis 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 NCAA’s 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 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-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 NCAA’s 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, conerence or local or-