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Wednesday, July 22, 2009

Is the NCAA infringing the rights of its current and former players?

The plot thickens: Former UCLA basketball player Ed O'Bannon has now sued the NCAA over what he asserts is the NCAA's infringing use of his likeness in its various materials, including NCAA basketball video games. This case, unlike maybe Sam Keller's, is the real deal: Boies, Schiller & Flexner and Hausfield LLC are serious law firms, and the suit is a class-action suit, meaning that they are looking to join as many other former athletes as possible. And one twist does make this case more sympathetic, in that O'Bannon is a former player, no longer on scholarship, who continues to have his likeness used in subsequent editions of the video game through the "All-time" team features. He's not just suing about the use of his likeness when he was in college under scholarship.

Not that I'm convinced that makes any difference. The bottom line is that everyone owns their own name and likeness, and any use of that name or likeness without permission that is infringing -- particularly for commercial use -- is impermissible. Now the question is what is infringing, and the NCAA simply maintains it hasn't infringed on anyone's rights. It hasn't yet had to explain why, though frequent arguments are that the kids are already compensated with scholarships or that the likenesses in the games aren't infringing enough -- you know, that Florida QB #15 that runs like a rhino and throws 50-yard bombs could be anybody. Neither is persuasive.

The first looks just about foreclosed. Recently a federal appeals court decided that NFL Films infringed on John Facenda's distinctive voice when it used clips in advertisements for EA's Madden football. Facenda of course had that booming voice, and he had signed a contract with NFL Films. But in signing a contract didn't mean he waived all his rights for all time. Instead, as the Court said, "Facenda consented to participation in films documenting NFL games, not an advertisement for a football video game." The same might be said of the NCAA's scholarship athletes.

And the second is not how it works. You can infringe on someone's publicity rights without saying them by name; the question is basically whether the whole thing passes the smell test. For example, successful plaintiffs in publicity rights cases have included Muhammad Ali (who sued Playgirl magazine after it published a drawing of a naked guy resembling him with "The Greatest" written under it), Vanna White (an advertisement by Samsung showing a robotic blonde woman turning over a Wheel of Fortune display), George Wendt and John Ratzenberger, who played Cliff and Norm on Cheers (animatronic likenesses of Cliff and Norm were placed in airport bars). On the other hand, the unsuccessful have been Joe Montana, who sued regarding the use of his image after having won the Superbowl, as that was merely the recording of an historic fact, and baseball (again!), which sued a company that made cartoonish, spoof baseball cards. The court there ruled that the baseball cards were sufficiently a parody of the players such that a suit wasn't permissible. (No word on whether that defense would remain for players who receive absurdly low ability ratings in EA's NCAA Football.)

One irony here is that the sports leagues -- usually always on the same side -- are now put on opposing sides with the simultaneous rise of these fantasy baseball challenges. In these cases, Major League Baseball and its players union have sued proprietors of fantasy baseball leagues, arguing that a player's name followed by his historical stats constitutes an infringing of publicity rights. These suits have not fared well, but they provide a nice contrast with the NCAA's position, which is that recreating the image and likeness of current and former athletes is not infringing.

So what would happen if the courts ruled against the NCAA? I'm not sure how damages might work, but I would guess the NCAA would try to get its future players -- i.e. 17 year old kids -- to sign waivers of their publicity rights, forever. (Kind of like Facebook does for any photos you upload there.) But you also might get antitrust issues with, say, forcing all the various Universities to take on this policy, or then enforcement issues when, say, some WAC school offers its recruits the opportunity to play for them without having to sign away their publicity rights. It's an interesting mess.


Coryell 15 said...

EA Sports does not ship the game with "Tim Tebow" they hip it w/ QB#15 of Florida. If anything the rights to a players' likeness belong to his employer ie the School and the school surrenders rights to its conference anyway. Never ceases to amaze me that people who are handed glory and the opportunity to get a degree still want more scratch.

The headstone of the Republic will have nex per lawyer quod cupiditas on the headstone.

coryell 15 said...

er ship it with and will have on it....

preview is my any rate the only way "poor poor Tim Tebow" can prevent his "likeness" from being "misused" is by having the edit feature removed at which time EA and other game companies will be dealt a blow....

hobbyists like me will move on and the Madden title will be harmed since they will not be able to market accurate rosters.

Jeremy said...

Honestly, it will probably kill the game. One reason people buy the game each year is because of new players. Yes, there are usually a couple of new features each year, but usually they are minor (note: the stadium intros are cool and I haven't played a game in 5+ years).

However, it's not likely that the NCAA will start paying players because there's the question of how much. It's one thing in the NFL where you have about 30 teams. Given the 150+ teams in the FBS and FCS, it's unlikely that a game could sell for a reasonable price. At best, the college football game will die. If damages are retroactive, then you can expect EA to be hurt in general. I'm not sure how this will effect other games (i.e., Madden) because we won't know the size and scope of the lawsuit.

What really gets me is that no current players are screaming about this. Rather, it's the hasbeens. From what I can tell from player interviews, most current players love to play themselves.

Chris said...

Coryell, a few responses: (1) Madden is totally irrelevant to the discussion; it has a license with the NFL Players Association, and thus pays them to use their names. This will have no effect on them, because, again, EA pays the NFL to use their names and likenesses.

(2) The fact that they didn't put QB#15 on the cover doesn't change the fact that they sell a product where one of the main draws is the ability to be Tim Tebow. If people wanted to emulate him themselves by creating players, that's one thing, but EA puts it all together for them. It's not about preventing it, it's about selling a product with all of that loaded onto it.

(3) I'm not convinced his likeness is owned by his school. Does your employer own your likeness, if it wanted to use you to promote anything it wanted? Or to sell your face to a third party to sell cheeseburgers or tires? (Ignore the fact that few of us are famous enough for it to be worth it, but that's the rub: if you're famous enough for it to be worth it, then your likeness has value, and you could be selling it yet they are selling your face without your permission.)

Jeremy: (a) As I said above, the Madden point is irrelevant.

(b) I don't know why it would be so expensive (why more expensive than Madden?). It's not like the players at small schools are huge draws. You could pay into a trust fund for the players after they graduate; if you leave before graduating you could forgo what you had paid in; and you could just pay a flat rate to all players regardless of skill that is determined early on.

(c) The argument about current players versus later ones is dumb. Of course the 19 year old kids have no idea that their likeness is valuable. Like many choices in college, their full ramifications don't become evident until later.

Now, I will say this: I think the Ed O'Bannon claim is more persuasive (or as I said about, sympathetic at least) than the former players who complain about games made while they were in college; UCLA and the NCAA are still making money on Ed O'Bannon's likeness, long after he has left the court and everything is gone. (He also challenges other materials UCLA keeps putting out.) As evidenced by what the players associations of every pro league do, the likenesses are protected and they get sold for good money. The idea that college is entirely distinct -- to the point where you owe NFL players hefty fees and college players zilch -- strikes me as a bridge too far.

Finally, Coryell, you can yell at lawyers but this isn't judge-made doctrine: publicity rights laws passed have been passed by the legislatures of just about every single state.

As a final, final note. Again, you can do waivers in these scenarios, and maybe that would solve things. But there's other issues with that, as I said. But the NCAA is free to make giving up your likeness a condition of accepting a scholarship -- that's at least a bargain. The way it is now they just take it and assume they have every right to.

bubba mccarthy said...

Just one more step down the long road to reality. The NCAA is nothing more than the operator of minor league professional sports. (Exactly how is the mission of "higher education" satisfied to a greater degree by a D1 school with paid players than by a D3 school that fields unpaid players?)
At present the status quo happens to believe that the semi-slave labor is justly compensated with a supposedly bargained-for payment of a college education.
If it's not all about who gets to keep the money, then why not have all college athletics be completely amateur and nobody gets any form of payment (scholarship)?
The answer is obvious. The NCAA would cease to exist, and minor league professional sports would begin to prosper outside the realm of the NCAA. No more monopoly and private industry would be able to compete for the physical skills that the D1 schools currently exploit.
I mean seriously, why the heck is the NCAA in the business of competing with private industry to field minor league sports franchises? Why not operate auto plants instead? Makes about the same amount of sense.

- Think Tanker said...

The kids opportunity for the degree is earned because they play for that School. Not for the school or conference to sell their likeness. What about the kids who pay for school and walk on? They are not being compensated with free tuition.

VLB said...

It never fails to amaze me the number of people who completely dismiss the value of a college education, room, and board as slave wages.

A lot of people who are not great football players work two jobs while attending school part time for the right to get a college education. In practical terms, at an expensive school it might be worth a couple hundred thousand dollars.

That does not figure the value of 1) round the clock access to top notch training equipment and facilies (a modest fitness club membership would run you $50 a month).

2) Access to top notch professional trainers who are willing to work with you on a daily basis (again, price this on the open market)

3) free medical treatment for all sorts of injuries and sicknesses

4) individual job training by the top people in the field (ever seen the cost of sports academies run by non-experts?)

5) free training clothing, shoes, etc

6) free on the job training at the highest level (we call these college football games)

7) on site interviews (we call these pro-days, practices and games)

8) Free air time where you can build reputation with prospective clients (we call them fans) and employers (we call them NFL coaches and GMs)

This really is a tremendous deal. yes, the players also have to do things like work out and try and improve in their chosen craft and play in football games that are auditions for professional employment.

But what exactly would they be doing anyway? Sitting around eating cheeseburgers? Not if they wanted to succeed professionally. Essentially, they are getting a hell of a lot of compensation for preparing themselves for their professional careers.


And the NCAA, which is just non-profit universities is taking the money they generate and investing it back in Athletic Programs, scholarships, endowments, etc, etc.