More Developments in NCAA Likeness Case

Tuesday, November 6, 2012, by Michael Frongello
In July 2009, former UCLA basketball star Ed O’Bannon filed a lawsuit on behalf of other former NCAA Division I football and basketball players against the NCAA and the Collegiate Licensing Company (CLC) challenging whether it was legal for the NCAA and other entities to use the student-athlete’s “likeness” in rebroadcasts of games, DVD sales, photos, video games, etc. without compensation after the student-athlete has graduate or stopped playing in the NCAA. Others, including former Rutgers football quarterback Ryan Hart, former Arizona State and Nebraska football quarterback Sam Keller, and basketball Hall of Famers Oscar Robertson and Bill Russell, have filed similar suits. Accordingly, O’Bannon’s case has since been consolidated with some of these other similar suits in the Northern District Court of California, and the suit now operates under the name In re: NCAA Student-Athlete Name & Likeness Licensing Litigation. 
In this potentially billion-dollar lawsuit, O’Bannon and the other former NCAA student-athletes contend that the NCAA violates federal antitrust law, as well as right to publicity laws, by licensing the names, images and likenesses of former D-I football and men’s basketball players in various commercial ventures without the players’ permission and without providing them compensation. Thus far, there has have been many twists and turns in the case, which is still in the early stages of litigation, and the last two months have provided their fair share of twists.

If the athletes– rather than the NCAA and its members — own the rights to their names, images and likenesses, then the conferences do not possess the rights they are selling to broadcasters.

In late August, O’Bannon filed to expand the class action to include not only former NCAA Division I Football and Basketball players, but also current NCAA Division I football and basketball players.  U.S. Magistrate Judge Nathaniel Cousins will soon hold hearings to determine an appropriate class, and if O’Bannon’s succeeds in expanding the class, he may file to expand the class even further to include all former and current NCAA Division I athletes, not just football and basketball players. Then, when correspondence and depositions were unsealed in mid-September, emails emerge that suggested that video game company Electronic Arts (EA) and CLC knowingly used the characteristics of individual college players in video games- this information was in direct contrast with EA and the NCAA’s previous contentions that the video game avatars are not based on actual players. Then, just last week, the attorneys representing O’Bannon and the other former and current NCAA football and basketball players filed a document in the U.S. District Court in California that said that “the NCAA says it does not obtain permission from athletes to use their names, images and likenesses in various ways, including live TV broadcasts.” Last week’s filing also revealed a problem noted by University of Texas Senior Associate Athletic Director Chris Plonsky in the unsealed emails (discussed above) regarding broadcast rights fees – NCAA Division I conferences’ mega-dollar television contracts may be unlawful. “If the athletes – rather than the NCAA and its members — own the rights to their names, images and likenesses, then the conferences do not possess the rights they are selling to broadcasters.”
As you can see, this case has a chance to radically reshape the landscape of college sports. If they student-athletes ultimately prevail, they would be entitled to be compensated for the licensing of their identity, which could lead to the redefining of the concepts of “student-athlete” and “amateurism” in the context of NCAA Division I athletics. As I mentioned above, this case is still in the early stages of the litigation process, but as Michael McCann, the director of the Sports Law institute at the Vermont Law School, points out, “O’Bannon v. NCAA should only get more interesting.”