EA’s (Electronic Arts) and CLC’s settlement in the O’Bannon case–O’Bannon vs NCAA–leaves the NCAA as the lone defendant in the antirust lawsuit filed by former UCLA baskeball player Ed O’Bannon on behalf of the NCAA’s Division I football and men’s basketll players.
In case you haven’t been reading about this suit, I’d suggest visiting this PBS Frontline site. Essentially, this lawsuit challenges the Collegiate Licensing Company (CLC), EA, and the NCAA’s use of the images of its former student athletes for commercial purposes, arguing that upon graduation, a former student athlete should become entitled to financial compensation for commercial uses of his or her image. Billions of dollars in TV revenues and licensing fees are at stake.
Rulings this summer have not buoyed the defendants’ spirits. In late July, the Ninth Circuit affirmed that the use of the likenesses of an athlete was not shielded by the First Amendment, and the Third Circuit implicitly affirmed that athletes have intellectual property rights. Despite a number of lawsuits filed by EA and the CLC asking the United States Supreme Court to review these and other lower court decisions, the settlement agreement suggests these companies no longer felt they’d fare well if the case were to proceed.
Allie Grasgreen, writing for Inside HigherEd, quotes Warren K. Zola, assistant Dean for grad programs at BC who is considered an expert on sport’s business law, who notes that the settlement suggests that EA and CLC ,
while probably not admitting legal liability, clearly they were concerned enough that the courts could find that they violated the rights of publicity of college athletes . . . and that doesn’t bode well for the NCAA.
He continues, “I have yet to see a solid legal argument by anybody who is not biased or benefiting from the existing system who doesn’t feel that there’s some violation on the right of college athletes.”
While the NCAA has long maintained that student athletes do not have a right to any profits because they are amateurs, as Taylor Branch made all-too-clear is his October 2011 Atlantic article, “The Shame of College Sports,” college student athletes generate billions for their colleges and universities and for the NCAA while earning nothing. If this lawsuit proceeds (and there is little to suggest it won’t), and the NCAA shows no signs of agreeing to a settlement, college sports will be forever changed. Student athletes will be paid to play.
Yes, student-athletic scholarships pay for tuition, books and supplies, and room and board, but cover little more; if a player is from poor family, s/he likely can’t afford to go home for a visit or to take a friend to dinner and a movie. Players are required to take classes, practice, travel, play, engage in community relations, do promos for big games and tournaments and for local events; their time is rarely their own; and they’re exploited by their college or university, by their conferences, and by the NCAA.
The familiar claim that paying student athletes would destroy the integrity and appeal of college sport is laughable. Anyone who hasn’t been living under a rock could cite a handful of college sport’s scandals that make politicians look like innocent babes.
Now that claims concerning licensing issues have been settled, the O’Bannon case is is focused on the billions of dollars the NCAA, collegiate conferences, and individual programs have made. As the people who actually play the games and make broadcasts so valuable, the players claim they are entitled to a cut. I’m not a lawyer, but I think they have a damn good case.College sports is a business, and businesses must pay their employees.