This Season’s Most Expensive Game

Pundits, broadcasters, athletes, and fans have debated student-athlete compensation for years.  On one side are those who picture NCAA student-athletes and see under-compensated, over-exploited professionals and fanatically champion the “pay-for-play” movement to make student-athletes salaried employees of the university.   On the other side is a chorus of voices that cry amateurism and see the NCAA as a governing body advancing and justly compensating student-athletes through academic scholarship, living expenses, and the opportunity to develop their playing careers.

Until recently, the dissention had played out in a digital echo chamber – each side bringing their case to the editorial pages of USA Today, watching it spill over to Twitter and snake its way through the blogosphere.  But as the factions have become more polarized and tensions have risen, it was only a matter of time until they moved their case offline — and into court.

On one side of the courtroom sit former NCAA student-athletes fighting for compensation for what they allege is the use of their image in NCAA-licensed video games.  In California, former UCLA basketball star Ed O’Bannon has brought suit against co-defendants the NCAA, Electronic Arts (video game maker), and the Collegiate Licensing Company (collegiate trademark licensing).  In a nearly identical case in New Jersey, former NCAA student-athlete, Ryan Hart, unsuccessfully brought suit against Electronic Arts and is now appealing.  In the other corner is the NCAA, which firmly denies that players’ images were used and stands beside the video game companies that assert that even if the players’ images were used, the First Amendment protects the company’s right to artistic expression in video games.

What has become a complicated courtroom drama has surprisingly simple beginnings: it started with a piece of paper.  An NCAA student-athlete kicks off his or her playing career in much the same way you agree to Apple’s terms and conditions – by skimming and signing a series of documents laden with legalize.  One of the documents that an NCAA student-athlete signs includes a section that gives the NCAA or “a third party acting on behalf of the NCAA” the ability to use the student-athletes “name or picture to generally promote NCAA championships or other NCAA events, activities or programs.”  (Check out www.macalester.edu/athletics/forms/eligibility_statement.doc for an example of the form).  By signing the form, the student-athlete essentially licenses their “right of publicity” to the NCAA so that the NCAA can use it in promotional materials and ancillary advertising.

The right of publicity exists to give everyone – not just celebrities and high-profile athletes – the ability to exploit his or her image for commercial gain.  There is no federal right of publicity law, meaning it has been left to individual states to decide how and moreover if they will protect an individual’s right.  The majority of states have elected to recognize the right of publicity but each state has interpreted the right differently – leading to widely divergent rights of publicity tethered to little more than whether you happen to be in New York or neighboring New Jersey.

So here we are today: players have a legal right of publicity, and they’ve licensed it to the NCAA.  The former student-athletes who have brought suits now want to cash-in on the use of their image in video games.

At stake in both the O’Bannon and Hart case are potentially billions in compensation for student-athletes, as well as wider implications for the treatment and payment model for student-athletes going forward.  Will the pay-for-play movement win out?  Or will the NCAA’s amateurism model win the day?

As the cases progress, check out @LeagueAl for updates!

Posted on November 30, 2012 at 6:51 pm

Written by

Alexandra Goldstein

Alexandra received her J.D. from American University Washington College of Law, where she was the President of the Sports and Entertainment Law Society. Prior to graduating law school, Alexandra worked for two athlete management agencies, as well as the NFL Players Association and NCAA. Her areas of interest are licensing and right of publicity law. With her passion for collegiate and professional sports, Alexandra seeks to make Legal Timeout an accessible source of information about current sports law issues and ongoing topics in the field. A native of San Francisco, Alexandra received her B.A. in mass communication from UC Berkeley and roots for Cal and the 49ers every Saturday and Sunday. Follow her on twitter @LeagueAl.
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