The federal district court in San Francisco denied the NCAA’s request to dismiss the class-action lawsuit challenging their right to use former athletes’ images and likenesses on TV commercials, clothes, and video games. The lawsuit claims the NCAA must pay former athletes for such uses.
The ruling is important because it gives the class-action plaintiffs – headed by former college basketball star Ed O’Bannon – access to the NCAA’s licensing contracts. According to O’Bannon’s lawyers, it’s the first time anyone’s been able to see exactly how the NCAA uses and sells student-athletes’ images and likenesses.
It’s estimated that NCAA licensing contracts are worth more than $4 billion.
Ed O’Bannon was a college basketball star. In the 1994-95 season, he led his UCLA team to a national championship. He scored 30 points and grabbed 17 rebounds in the championship game, and he was named the nation’s most outstanding player. These days O’Bannon coaches a high school basketball team and sells cars in Las Vegas.
But O’Bannon’s college glory lives on. You can still watch him shoot the hoops that clinched the national title in DVD’s sold on Amazon and in television rebroadcasts of classic games. He smiles out from trading cards and still runs the boards, virtually, in a video game. O’Bannon’s college image is still making money for the National Collegiate Athletic Association (NCAA) through licensed merchandizing. Now O’Bannon is suing the NCAA for a part of those profits.
NCAA Licensing Lawsuits
O’Bannon recently filed a class action lawsuit against the NCAA for himself as well as former and current student athletes. O’Bannon claims that the NCAA is illegally profiting from the use of athletes’ photos and images without the athletes’ consent and without paying them any compensation.
O’Bannon’s action is the third class action lawsuit filed by former student athletes against the NCAA this year. In May, former Arizona State University football player Sam Keller sued the NCAA and a video game maker for unlawfully using the likenesses of athletes in video games. Two other former football players filed a similar lawsuit against the NCAA and video game maker in June.
These lawsuits claim that despite NCAA bylaws prohibiting the commercial use of players’ names or likenesses, the NCAA makes millions of dollars by licensing the players’ images for use in television broadcasts, advertising, DVDs, video games, clothing and other merchandise. The players say they never agreed to this commercial exploitation of their names and likenesses. They say it’s not fair that they haven’t received a dime of the licensing fees.
The NCAA requires all student athletes to sign releases that permit the players’ images to be used to promote NCAA events and activities. The players argue that it’s unfair and a violation of antitrust laws (laws prohibiting unfair business practices that inhibit competition) for the releases to prevent players from making their own licensing deals after they leave college.
What rights do athletes have to control the commercial use of their own identities?
Licensing Publicity Rights
A star athlete’s name, nickname, face, voice, image – maybe even his signature lefty jump shot, all constitute valuable intangible property. Courts in many states, including California, recognize this intellectual property as the right of publicity.
The right of publicity protects against the unauthorized commercial use of a person’s identity. The right is violated or infringed if an individual’s name, likeness or other recognizable part of his persona is used for commercial purposes without the individual’s consent.
An athlete can sell their publicity rights or consent to their use by another through a licensing agreement. A licensing agreement is a contract by which the athlete (licensor) may authorize another (licensee) to use the athlete’s name or likeness in merchandise or advertising for a fee or royalty.
Cashing in on Publicity Rights
The right of publicity is a valuable asset that can sustain an athlete long after his playing days have ended. Hall of Fame running back Jim Brown filed a lawsuit that recovered about $26 million for retired National Football League players whose images were used in video games without their permission.
O’Bannon indicates in his lawsuit that there is a $4 billion annual market for collegiate licensed merchandise. Who can blame former college players for wanting a piece of that pie? Stay tuned for further updates on how the athletes’ lawsuits play out in the courts.
Protecting Your Student Athlete
Many high school students, and their parents, dream about playing college sports. For some, athletic scholarships are a stepping stone to a pro sports career. For most, scholarships provide valuable access to education that prepares students for a career in a non-sports field.
College scholarships at NCAA member schools come with a thick book of NCAA bylaws that govern everything from player academic eligibility to sportsmanship. Bylaws intended to protect the amateur nature of college sports prohibit players from hiring agents to help them secure college scholarships or pro contracts. These rules inhibit the participation of lawyers in the recruiting process. However, experienced Sports Law attorneys can provide valuable assistance in disputes that include college player eligibility, the maintenance of amateur status and post-college licensing and endorsements.
Questions for Your Attorney
- If a school asks a student to sign a release, does it have to be clear? Can student-athletes or their parents rescind any authorizations previously given in a release?
- If an athlete believes some part of his persona is being used improperly or without proper permissions, how hard is it to enforce one’s rights?
- How do the intellectual property rights associated with someone’s persona apply if a product is made overseas and sold abroad? What if a product’s imported to the US? Would an athlete seek relief in a lawsuit against a foreign manufacturer or the company selling the product within the US? What if the violation occurs only on the Internet?