Until recently, the widely-covered class action antitrust lawsuit led by former UCLA basketball player Ed O’Bannon against the NCAA, the videogame maker Electronic Arts, and the licensing firm Collegiate Licensing Co. had been winding its way through the federal court system. According to a September 17 report by Steve Berkowitz in USA Today, a motion to dismiss was filed by the NCAA and Collegiate Licensing Co. (According to Berkowitz, Electronic Arts filed a separate motion to dismiss the week prior).
1. Can a videogame maker (like EA Sports) use a real person’s likeness without compensating them for that usage?
In Mary Catherine Moore’s article, “There is no ‘I’ in NCAA: Why College Sports Video Games Do Not Violate College Athletes’ Rights Of Publicity Such To Entitle Them To Compensation For Use Of Their Likenesses,” published in Fall 2010 in the Journal of Intellectual Property, Moore explains the important distinction between using a person’s likeness for commercial purposes and communicative purposes. In it, she argues that characters in video games — even those based on real people — may have first amendment protection, because video games have been held to be communicative. Moore cites a 2005 California case, Kirby v. Sega of America, Inc., for the proposition that games “are expressive works entitled to as much First Amendment protection as the most profound literature.”
First amendment issues aside, the issue as it relates to current college athletes is much more cut and dried. As Moore writes, “college athletes have, in exchange for eligibility to play NCAA sports, given up their right of publicity for the duration of their college sports careers.”
2. How does the NCAA prevent its unpaid collegiate athletes from using their own likeness elsewhere in return for compensation?
For instance, why couldn’t a current basketball player at an NCAA school, like UCLA, choose to contact a video game company — say, 2K Sports — and license his own image for their game?
The answer, of course, is that the NCAA prevents current athletes from trading on their own image insofar as it relates to athletics through its by-laws. Section 188.8.131.52 of the current NCAA Division 1 operating by-laws states, “after becoming a student athlete, an individual shall not be eligible for participation in intercollegiate athletics if the individual: (a) Accepts any remuneration for or permits the use of his or her name or picture to advertise, recommend or promote directly the sale or use of a commercial product or service of any kind …”
3. Can the NCAA (or companies like Collegiate Licensing Co.) use or license the images and names of past collegiate athletes without providing them compensation for that usage?
Though current players enter into this contract in order to play collegiate sports, the question remains of who retains license over players’ likenesses (in their collegiate athletic capacity) after they leave school. Rather than being matter of NCAA by-law, this question implicates the degree to which the NCAA can control players’ images beyond their playing days, and in a variety of mediums and usages — hence the antitrust lawsuit led by Ed O’Bannon, whose career at UCLA spanned 1991-1995.
The text of Judge Wilken’s 2010 opinion granting in part and denying in part a previous motion to dismiss filed by the NCAA and College Licensing Co. clarifies the original source of O’Bannon’s antitrust complaint (which has since grown into a class action):
“O’Bannon asserts that NCAA’s and CLC’s actions excluded him and other former student athletes from the collegiate licensing market. He claims that, because NCAA has rights to images of him from his collegiate career, it, along with its co-conspirators, fix the price for the use of his image at ‘zero. […] Based on this alleged conduct, O’Bannon and Newsome plead that Defendants violated section 1 of the Sherman Act by agreeing to fix prices and to engage in a group boycott, both of which constitute unreasonable restraints of trade.”
According to a recent report by CBS Sports, the two sides in this particular conflict may soon be headed to mediation in the coming months, leaving many of the legal questions surrounding the image and publicity rights of ex-NCAA athletes unanswered for now.
Update: On September 26, 2013, Electronic announced that they will cease production of their NCAA Football video games for the coming year. In a release, Electronic Arts stated, ‘The ongoing legal issues combined with increased questions surrounding schools and conferences have left us in a difficult position – one that challenges our ability to deliver an authentic sports experience, which is the very foundation of EA SPORTS games.
Lin Weeks is a J.D. candidate, ’15, at the NYU School of Law