NCAA Athletes Continue the Battle to Reclaim and Profit from their Publicity Rights

By pgandhi [Monday, December 16th, 2013]

ncaa_money_mgnBY KIERSTEN MCKOY, NYLS ’14

Imagine if there was a billion dollar industry in which consumers bought products based off of characters that were designed to look and move like you. Imagine that these characters were built like you–same height, weight, skin tone, hairstyles, hair color– wore your clothes, and had your mannerisms. Imagine people lining up each year to buy the products because they expected to see you or even better, they wanted to pretend to be you. Imagine all of this was created without your permission. A whole empire built on your image worth $1.3 billion. Now imagine you have not received a dime.

E.A. Sports, a division of Electronic Arts, Inc. that develops and sells video games mimicking some of the world’s most popular athletic competitions and their athletes, has settled all of the class action lawsuits brought against the company by former and current athletes over the unauthorized use of the players’ images and likenesses in the video games and other merchandise. The lawsuits include those brought by former UCLA basketball star Ed O’Bannon, former Rutgers quarterback Ryan Hart, former Arizona State quarterback Sam Keller, and former West Virginia running back Shawne Alston. Each suit alleged that current and former players deserved a share in the billion dollar video game industry that profited off of their images without their permission. Both former and current players (estimated to be between 200,000 and 300,000) will get their share of $40 million dollars that E.A. Sports will have to pay as a result of the settlement. While the payoff does not amount to much, this is the first time that current college athletes can be paid for their appearance in the video games (though the effect on their NCAA eligibility will be in question).

However, several issues remain. First, the settlement with E.A. Sports does not create any legal precedent. The athletes may be entitled to a few hundred dollars each, depending upon how many players have chosen to join the class action suit. However, this does not prevent E.A. Sports, the NCAA, or others from continuing to use the players’ images without their permission in the future. Before athletic participation begins each year, college athletes are required to sign a Student-Athlete Statement confirming that they are amateurs and forfeiting any rights, including the right to compensation and to their images and likeness, in perpetuity. While the athletes have alleged that E.A. Sports’ use of their images is unauthorized, the court has not yet ruled on the matter and E.A. Sports has not admitted any wrongdoing as part of the settlement. This leaves a lot of uncertainty about what will happen in the future.

Second, the NCAA was not a part of the settlement, which means that battle over the use of a player’s likeness is far from over. In a November 8th ruling, Unites States District Judge Claudia Wilken certified the class of current and former college athletes solely for injunctive relief. That means if the plaintiffs prevail in the suit, they can prevent the NCAA from using their images (and profiting from them) without their permission in the future, but cannot collect damages.  Correspondingly, now that the NCAA is no longer at risk of a huge damages award, the organization is unlikely to settle and will continue to require college athletes to waive their publicity rights every year, and to enforce those waivers.

Third, if any current player named as a plaintiff in the lawsuit accepts money—whether from a damages judgment or a settlement—the player’s remaining eligibility could come into question under the NCAA’s strict amateurism policy.  Thus, it is unclear if current players will be able to negotiate their own licenses with companies like E.A. Sports, without affecting their amateur status with NCAA.

Last, the consumers and the schools have lost. E.A. Sports has chosen not to manufacture NCAA College Football starting at the beginning of next year after the NCAA and major athletic conferences like the Pacific-12, Big Ten and Southeastern have bailed, refusing to allow E.A. Sports to use its logos for their upcoming video games. Millions of video gamers will not be opening NCAA Football ‘15 under the tree next year, a disappointment for the games avid fans and players. For top tier schools, the NCAA Football game is worth more than $75,000.00 per year—which is almost double the average national salary for U.S. workers in 2012. Schools will no longer receive these checks with the loss of the video game.

Currently, the resolution of these issues remains a question, but it is clear that both current and former athletes are demanding an overhaul of an organization that has strictly governed their lives during their four years on campus and has profited off their backs.

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