“Whether Division I student-athletes hold any ownership rights in their athletic performances does not depend on the scope of broadcasters’ First Amendment rights but, rather, on whether the student-athletes themselves validly transferred their rights of publicity to another party.”

– U.S. District Judge Claudia Wilken, Pre-Trial Ruling

In Marshall v. ESPN, NCAA student-athletes are testing just how much clout Judge Wilkin’s words have. The suit, which is primarily a right of publicity claim aimed at television networks, rests on the premise that current contracts between Division I athletes and the NCAA are unconscionable.

Given the terms and the “sign or sit out” option given by the agreement, it’s possible that the court may side with the plaintiffs on the contract issue. But the convoluted nature of the dispute renders it hard to determine why this suit is different than Keller and O’Bannon, both of which also addressed student-athlete likeness rights. In sum, the type of violation alleged here is different than that addressed in previous suits because it is not dependent on the antitrust determination. Rather, it builds off of the O’Bannon holding that the NCAA may not bar student-athlete revenue, and demands relief from the major networks for profiting off athlete names, images, and likenesses—a right that the broadcasters claim does not belong to the athletes.

Prior to O’Bannon, it was somewhat assumed that the right of publicity for sports broadcasts did not belong to the athletes but rather to the producers, and the NCAA barred the receipt of compensation for the use of player likeness for athletic promotion, rendering the issue moot. However, Judge Wilkin’s comment in O’Bannon challenges this notion and has created a new legal battle with consequences that may stretch beyond NCAA major sports coverage.

As in O’Bannon and Keller, the Marshall plaintiffs allege that the NCAA has “conspired with [the networks] to create an anticompetitive market where students are powerless to realize the commercial value of their names, images, and likeness.” The collusion of the broadcasters and the NCAA locks the revenue for the athletes at zero in a market where athletes sell their services to the broadcasters. However, because this agreement does not affect vertical competition, it is unlikely to succeed. When addressing the same argument in O’Bannon, Judge Wilken determined that “teams of student-athletes would never actually compete against each other as sellers of group licenses even if the challenged NCAA rules no longer existed.” This follows because the publicity rights will be sold in packages only by the participating teams and the buyers will freely compete for those rights no differently than they do now.

It isn’t pragmatic for broadcasting companies to individually contract with players, so the rights would have to be signed over to the school, conferences, or some third party representing the larger group. Given the necessity of packaged deals and the need for on-field competition amongst college teams in Division I athletics, the royalty amount would have to be fixed, ultimately creating the same competition for rights that already exists. In other words, the network agreements, which may otherwise be unlawful, are not anticompetitive because they do not inhibit competition. The Tennessee district court is likely to make the same determination.

The stronger claim in this action, foreseen by critics and broadcasting networks alike, is the right of publicity violation. In order to obtain the rights of the athletes, networks typically purchase licenses to use the intellectual property of the participating schools and conferences as well as the names, images, and likenesses of the participating student–athletes. The rights are given to the colleges by the athletes via Form 08-3a, a contract student-athletes must sign annually in order to compete. Plaintiffs allege that because they have no alternative to signing the contract, and the language is generally ambiguous, the agreement is void, and the use of plaintiffs’ names, images, and likeness by the networks illegal. This is a strong assumption by the plaintiffs, but given the nature of Judge Wilkins quote above, there may be some validity to the claim.

But the merits of the suit lie beyond the contract dispute. Plaintiffs seek to assert a right of publicity claim.[1] Right of publicity has generally been akin to trademark. It relates to the unlawful use of one’s general identity for profit. The most famous and prominent cases typically relate to famous impersonations, such as if an Arnold Schwarzenegger replica pretended to be Arnold in a commercial without his consent. In this example, the commercial infringer would theoretically profit off of Arnold’s publicity, therefore violating the statute.

In Marshall, it is unclear whether the use of college athlete’s publicity is violated when the coverage is of that person. Television networks will likely make two primary arguments: that there is no violation because they do not provide any merchandise, goods, or services, but rather cover the contest; and that the right of publicity belongs to the producers in live sports broadcasts, rather than the athletes.

Both arguments have merit. The use of the publicity is directly related to the promotion of the student-athletes, and there is no misappropriation of the publicity to make a profit. Networks believe that if plaintiffs’ argument is allowed, “referees, coaches, cheerleaders, team mascots, or even fans — will probably demand the same rights as the athletes if it is determined that they owe athletes compensation for coverage of themselves.” Though it is unlikely that the scope of the coverage can cover this far, the networks’ point is strong.

Additionally, as stated in an Amicus Brief during the O’Bannon litigation, networks will argue that “the right of publicity simply does not fit and cannot be logically extended to the circumstance of the broadcast of a sporting event. If each participant in a game with hundreds of ‘performers’ had the exclusive right to license their individual appearance in the game, then by definition there could be no exclusivity in the game as a whole.” This argument is more along the lines that the purchasers of the exclusive rights own all rights to the contest, because such rights do not exist until the broadcast is promulgated. Networks will claim that the contracts that student-athletes sign do not represent rights of publicity for live broadcasts.

It is difficult to separate these arguments from the networks’ likely First Amendment claim, the argument that succeeded when former NFL players brought essentially the same suit against the NFL. In essence, the television networks’ premise is that coverage of noteworthy events, such as sports, does not have an element of individual publicity for the athletes to own. This will be an interesting issue for the court to consider, and if the plaintiffs win on a broad holding, it can have a large impact on the coverage of athletic events.

A secondary question raised by this suit is what position the broadcast networks will take in the litigation, primarily if the court finds that the athletes own their right of publicity. The networks will have to decide whether to stand strong with the NCAA or switch sides and push for player rights.

The former pushes for the implementation of a reformed contract that would legally transfer the rights to the colleges. This would allow the system to remain as is, with the broadcast networks bargaining with the universities on behalf of the student-athletes to create a deal that compensates the athletes.

However, given the NLRB’s recent determination that student-athletes may be recognized as employees rather than amateurs, the latter option may be the best bet for television networks. If players were to unionize, the broadcast networks would strike a deal directly with the union who would likely own the rights of publicity. Although the merits of a union are highly debatable, the determination that the student-athletes are employees combined with intellectual property law makes a union preferable, even if only to retain their rights which would otherwise belong to the college under work for hire. This option would allow the networks to bypass the conferences and colleges, and possibly retain more revenue.

It’s unclear how the issue will ultimately shape up. However, as some have professed, the recent decision in the Northern District of California may signal the beginning of the end for the NCAA.

Jakarri Hamlin is a J.D. candidate, ’16, at the NYU School of Law.

[1] Tenn. Code Ann. § 47-25-1105 states: “Any person who knowingly uses or infringes upon the use of another individual’s name, photograph, or likeness in any medium, in any manner directed to any person other than such individual, as an item of commerce for purposes of advertising products, merchandise, goods, or services, or for purposes of fund raising, solicitation of donations, purchases of products, merchandise, goods, or services, without such individual’s prior consent, or, in the case of a minor, the prior consent of such minor’s parent or legal guardian, or in the case of a deceased individual, the consent of the executor or administrator, heirs, or devisees of such deceased individual, shall be liable to a civil action.”