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The Right Profile

July 23, 2009

Several lawsuits have been filed recently against the National Collegiate Athletic Association by former athletes concerned about its commercial use of their likenesses, but none like this.

Ed O’Bannon – the popular and recognizable national player of the year from the University of California at Los Angeles men’s basketball team that won the NCAA's Division I title in 1994-5 – is the lone plaintiff named in a lawsuit filed Tuesday in the federal district court in San Francisco. The class action, summarized in a statement from the lawyers involved, “alleges that the NCAA has illegally deprived former student-athletes from receiving any compensation for the use of their images and likenesses in numerous revenue-generating formats, including DVD sales and rentals, photograph sales, video games, ‘stock footage’ clips sold to corporate advertisers, jersey and other apparel sales, and rebroadcasts of ‘classic’ games.”

This is not the first case of the sort to be brought against the NCAA in recent months. In May, Sam Keller, former starting quarterback at the University of Nebraska at Lincoln, filed another class action against the NCAA for profiting from the likenesses of Division I college football and basketball athletes solely in a particular set of sports video games made by Electronic Arts. The next month, Ryan Hart, former starting quarterback at Rutgers University, filed a similarly worded complaint – but not a class action.

The lawsuit filed Tuesday, however, has something the other cases do not, and several sports law scholars believe its unique attributes could be make its stern allegations stick to the NCAA where prior attempts have either stalled or failed.

Michael McCann, professor at Vermont Law School and a legal expert for Sports Illustrated, said the stakes of the case between O’Bannon and the NCAA are “extremely high.” A ruling in favor of the plaintiff, he explains, could “substantially change” the relationship between the NCAA and its participating athletes. For example, a victory for O’Bannon might necessitate the creation of a bargaining agreement between the NCAA and its athletes. Also, though no specific damages were enumerated in the complaint, he suspected that such a ruling would force the NCAA to pay “millions of dollars,” as damages are tripled under federal antitrust law.

McCann said that while he believes the case will have some traction in the courtroom, it is not a “slam dunk,” either.

“Earlier this year, the NCAA said that its players have the right of publicity.” McCann explained. “If they have the right to publicity, then it’s fair to ask, ‘Why aren’t they being compensated?’ Though the NCAA is probably concerned by the claim, they’ll have legal arguments that are strong, relating to their mission of amateurism. For instance, with an image of Ed O’Bannon next to the hoop in a title-winning game, he clearly has a right of publicity. But, maybe he’s waived it in his [agreement] with the NCAA.... There’s no easy answer in this case.”

The "agreement" referenced by McCann is the "Student-Athlete Statement" that all athletes must sign before playing. The NCAA argues that athletes, by signing this form, waive their right to receive compensation in connection with use of their likenesses by the NCAA or other "designated third-parties" who have the right to use them. The NCAA argues that this waiver extends forever, while O'Bannon argues that it ends when he leaves college.

McCann said the breadth of the O'Bannon lawsuit – focusing on all uses of athletes' likenesses, not just those in video games – strengthens the case. But the case's chief advantage, he said, is the quality and visibility of those involved – the lawyers and the main plaintiff.

“The fact that attorneys of the caliber of those involved would want to pursue this case sends an important signal,” said McCann of Michael Hausfeld, lead lawyer in the case, and Hausfeld LLP, his high-profile, D.C.-based law firm. “Also, in the past, players who none of us knew who they were, not to undercut their legal claims, brought forth cases. To have Ed O’Bannon – a guy of this magnitude who is not controversial, well-liked and will have access to the media to keep this in the public forum – is important.”

Paul H. Haagen, a professor at Duke University School of Law who is currently working on a sports law case book for Oxford University Press, said he also believes the case has some traction in court, despite the complaint’s broad strokes.

“Does this particular set of claims – that is the right to commercialize a likeness after a person has left school and when they are no longer competing as an amateur – does that have legs?” Haagen asked. “The answer is probably. What we’re going to have here is testing the appropriate limits of student waivers. Is that waiver of rights, which all student-athletes have done, is that effective?”

This case, Haagen argued, presents two “significant and conflicting issues in law." On the one hand, he said, there is broad acceptance that private bodies like the NCAA should be given deference to “order their affairs” and that “their contracts should be honored.” Still, he continued, one could question whether the NCAA paperwork the athletes sign relating to licensing is "appropriate" or if there is something about its "structure" that could warrant it being voided. If there is a monopoly, as the case alleges, then an athlete might not have any other choice but to sign.

“There are a whole series of issues here,” Haagen said. “Suing the NCAA is not easy. Still, I think [the NCAA] is almost on their weakest possible ground, in terms of amateurism, that they could be on, because what they’re doing is requesting the right to commercialize and to retain commercial rights against these persons for the rest of their lives. This presents a series of awkwardnesses. When things get awkward, it’s hard to predict a court’s behavior.”

The Plaintiff’s View

Behind the scenes, the case is being pushed by Sonny Vaccaro, the former marketing executive at Nike who signed Michael Jordan to his first shoe deal. In recent years, Vaccaro has traveled the country as an advocate for amateur athletes' rights, railing against the NCAA for its licensing practices. While not a lawyer, he remains an “unpaid consultant” for the case.

Vaccaro said in a telephone interview Wednesday that he has gotten numerous phone calls and e-mails from current and former athletes since the complaint was filed Tuesday expressing support for his work. He also noted that he was “very confident” that there would be “hundreds, if not thousands” of athletes who would come forward in future months to be a part of this class action. He remains confident in the case, and mostly because of O’Bannon.

“I talked to a few people similar in character and ability, all of whom played in championship games and were recognizable,” Vaccaro said. “Ed wasn’t the only kid I talked to. He was just the first one who said he wanted to be part of this. Still, be brings instant credibility to the media. ... So, yes, he’s a wonderful poster child.”

Vaccaro said he believes the simple solution to the case would be for the NCAA to compensate athletes, at least former athletes, for the use of the likenesses. As for current athletes, there is still some debate, at least according to O’Bannon.

“I don’t know if college athletes should be paid when they’re in school,” O’Bannon wrote in a statement Tuesday. “That’s a whole different topic. I’m not going to get into that. My biggest thing right now is, once we leave the university and are done playing in the NCAA, one would think we’d be able to leave with our likeness. But we aren’t able to. If you don’t take your likeness with you, you should at least be compensated for every dime that is made off your name or likeness. That’s where this lawsuit comes in. It’s been a long time that we have been exploited. Things have got to change, for crying out loud.”

 

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