Be Careful, They’re Unpaid Interns: Is the NCAA and its Member Schools Unfairly Profiting From the Likenesses of Its Athletes?

by Paul Whitehair November 8 2009, 14:25

 

I.                   Introduction

We hear the debate all the time.  Some sports writer will call for college athletes to be paid.[1]  Another will rebut that they are given hundreds of thousands of dollars in college tuition, books and housing.[2]  This debate is surely to drag out as long as there are intercollegiate sports, no matter what the rule on the NCAA’s books is either way.  As it stands, the NCAA and its member schools profits by selling the publicity rights of its athletes to video gaming companies, as well as market their likenesses themselves even long after the player has graduated or moved on from intercollegiate sports.  This article focuses on the recent athlete initiated cases regarding this problem, as well as a potential solution.

II.                The Issue of the Use of Player Likenesses and Publicity is Finally Being Brought to the Attention of the Juridical System         

However, more recently, former athletes have taken a different route in explaining how the NCAA and its universities are profiting from the exploitation without compensation of student-athletes.  Ed O’Bannon, former UCLA Bruin and National Champion in 1995, has raised the issue with a federal district court in San Francisco by alleging that the NCAA improperly forces students to sign away their likeness rights with a form entitled “Form 08-3a.”[3]  This form is more aptly named the “Student-Athlete Statement.”[4] O’Bannon has alleged, along with the former athletes that have joined him in this class action suit, that his has been depicted to sell DVD box sets, photographs, and other items in which he is not compensated for.[5]  In that same vein, Sam Keller, former Nebraska quarterback via Arizona State, focuses his filing in the Northern District of California on Electronic Arts’ use of his and other athletes’ likenesses in their hugely popular NCAA Football titles.[6]  In these games actual university names and colors are used.  However, with respect to the players and their amateurism individual names are not used.  That being said, the statistics, jersey number and physical characteristics of the player are identical to the player being depicted.[7]  That is arguably how Electronic Arts and the NCAA 2K franchise markets their games, by placing a former NCAA player on its cover, and stressing that consumers are playing as their favorite team and players. There are independent third party distributors that sell a “patch” that will add in the players real names, and in many cases, the broadcasting crew will say the name of the new players.[8]  ESPN/EA Sports announcer Brad Nessler even admitted that he and the crew recorded the names, even though technically that practice is not allowed.[9] 

III.             Athletes Have a Right to their Own Likeness and Publicity that Should not be Disturbed without Compensation

NCAA has a bylaw from profiting from a player’s likeness or image.[10]  However, the NCAA itself, along with its member institutions, has been doing exactly this.  The NCAA garnered $614 million from marketing and television deals in 2008.[11]  Included in this number is the NCAA’s compensation from Electronic Arts and other video game companies.  For comparison as to what the true number of player licensing compensation the NCAA receives, over the same period the NFL’s Players Union received $35 million for the rights to use player names and likenesses.[12]  Additionally, the NCAA athlete’s plight is similar to the use of NFL retired players likenesses, for which until recently, have gone uncompensated.  Recently, the Northern District of California found damages of $28.1 million dollars in favor of a certified class action pool of retired players against the NFL Players Union for unauthorized use of retired player likenesses.[13]  

The 9th Circuit has recognized the right to publicity of celebrities in White v. Samsung.  In this case, a portrayal of a robotic figure intending to humorously depict Vanna White was deemed in violation of Ms. White’s publicity rights because the appearance was “substantially similar” to the real life Vanna White.[14]  The cases presented by O’Bannon and Keller are substantially similar. Without doubt, the goal of the NCAA in designing the players is to make them as similar to the real athlete as possible.  This is reflected in the physical characteristics, jersey number and statistics being the same between the “fictitious” player and the student-athlete.  In Sam Keller’s case, former Nebraska Cornhusker’s quarterback, the player represented as the quarterback of the Cornhusker’s offense in the game has exactly the same statistics as Sam Keller had the previous year.[15] Isaiah “Juice” Williams, is the quarterback for the Fighting Illini of the University of Illinois and wears #7.[16]  On the roster, he is listed as 6’2 and 235 pounds.[17]  In NCAA Football 2010, Illinois’ quarterback, #7, is listed as 6’2 and 223 pounds.[18]  The players in games like EA Sports’ NCAA Football franchise are so recognizable, that third party websites offer roster downloads/memory cards for purchase that automatically edit the name from, for example, “WR #9” on the Fighting Illini to Arrelious Benn.[19]  Without a doubt, the NCAA and its member institutions are profiting from selling the rights of athletes, and with the undisputedly similar attributes of the players on the game to the real college player, the NCAA and EA Sports cannot decline that they are trying to replicate actual athletes as much as possible.

IV.             A Workable Solution       

 Understandably, some college purists gasp at the idea of having a pool of money available for individual athletes upon the exhausting of the athletes eligibility.  Even more troubling for these purists would be to have athletes being compensated for games, DVDs and other products bearing the athletes likeness while the athlete is still in school.  Paying college athletes, even for publicity rights, jabs at the idea of amateurism.  However, some mechanism must be agreed upon that would leave former NCAA athletes in a better position by signing away their publicity rights.  The O’Bannon complaint starts to draw out a solution that would benefit both the NCAA by allowing the continued use of player likenesses, and NCAA athletes by providing a pool of benefits that they can draw from. [20]           

While the O’Bannon complaint provides a starting point, with the millions upon millions of dollars flowing into the NCAA and its member institutions off the rights of its athletes, the NCAA could do much more for its athletes.  What the NCAA and its member institutions could do is provide benefits to student-athletes after they have exhausted their eligibility.  Most student-athletes do not go on to play professionally and many end up unemployed and without basic benefits such as health insurance.  The NCAA should use a portion of the money it gets from its contracts with Electronic Arts and other video game companies, as well as from sales of DVD box sets, magazines, etc. bearing the likenesses of former players, and distribute it to the individual schools for the purposes of the schools setting up group health insurance, a pension program for former athletes and a continuing education fund.  Much like the ongoing debate regarding former NFL players and disabilities, it is imperative to have a well-funded resource for former athletes to have continuing medical coverage for present and future injuries/conditions associated with their participation in college athletics.  This would ensure that athletes who generate millions of dollars for the NCAA and their respective schools would not be unfairly forced to sign away their publicity rights.  This plan would also allow for the college athlete to focus on not only his craft, but schoolwork while being assured that his interests are being protected. 

V.                Conclusion

The NCAA has an obligation to protect amateurism and not let its practices bleed into a more professional-style system.  However, the NCAA cannot continue to profit unfairly off the backs of its athletes by forcing these athletes to sign away their rights. An NCAA regulated and partly funded system charging member institutions to provide a pool of benefits to its athletes is one method of protecting the interests of college athletes, but still protecting the amateur aspect of college athletics that has made the NCAA so successful.     



[1] Frank Defford, NPR: In All Fairness, College Athletes Should Be Paid (NPR Broadcast January 2, 2008) (transcript available at http://www.npr.org/templates/story/story.php?storyId=17766826).
[2] See Jeffrey Dean, Why College Athletes Should Not Be Paid, ASSOCIATED CONTENT, Dec. 18, 2007, http://www.associatedcontent.com/article/476945/why_college_athletes_should_not_be.html?cat=9).
[3]Maria Dinzeo, Student Athletes Sue NCAA in Antitrust Class Action, COURTHOUSE NEWS SERVICE, July 23, 2009, http://www.associatedcontent.com/article/476945/why_college_athletes_should_not_be.html?cat=9.
[4] David Moltz, The Right Profile, INSIDE HIGHER ED, July 23, 2009, http://www.insidehighered.com/news/2009/07/23/ncaa.
[5] Dinzeo, supra note 3.
[6] Jeffrey Sullivan, Reality Sports Meets Publicity Rights, THE NATIONAL LAW JOURNAL, Oct. 14, 2009, http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202434518684&rss=ltn.
[7] Id.
[8] Anastasios Karbukis, et al., NCAA Student-Athletes’ Rights of Publicity, EA Sports, and the Video Game Industry, 27 Ent. and Sports Lawyer 2 (2009), available at http://www.kaburakis.com/wp-content/uploads/2009/09/kaburakis.pdf.
[9] Id.
[10] Sullivan, supra note 6.
[11] Jeffrey Sullivan, If It’s Sort of in the Game, Is It in the Game?, INTELLECTUAL PROPERTY REPORT, May 2009, http://www.bakerbotts.com/file_upload/IfItsSortOfInTheGame.htm.
[12] Id.
[13] Parrish, Ad­derley, Roberts III et al. v. NFL Players Inc., C 07-00943 (N.D. Cal., post-trial motions order Jan. 13, 2009).
[14] White v. Samsung, 971 F.2d 1395 (9th Cir. 1991).
[15] Kevin Goldberg, A Hail Mary for Athletes’ Right of Publicity?, CommLawBlog, May 11, 2009, http://www.commlawblog.com/2009/05/articles/intellectual-property/a-hail-mary-for-athletes-right-of-publicity/.
[16] University of Illinois Fighting Illini Football Roster, http://espn.go.com/ncf/teams/roster?teamId=356 (last visited Oct. 29, 2009).
[17] Id.
[18] NCAA Football 2010
[19] NCAA Football 10 Rosters, http://www.footballrosters.net/ (last visited Oct. 29, 2009).
[20]Dinzeo, supra note 3.

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