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.