Wednesday, March 20, 2013

Publicity rights and NCAA student-athletes.

In the past few days, there have been stories regarding the NCAA and EA Sports' opposition to current and former college football and basketball players' motion for class certification in litigation that has been ongoing since 2009. If the players are allowed to certify, the stakes become higher for the NCAA, because the claims of all current and former players would instantly become legitimate. That is the power of a class action. There is power in numbers.

The players are not arguing that current players should get paid while in school. There are actually two different proposed classes: Former and current players. The former players want monetary damages. The current players would essentially be able to license their own names. The problem is that with current players, they would need to hire agents. Agents cost money. The players' motion for class certification states that they want any money for current players to go into a trust that the players can access upon graduation. So the agents would not get paid until graduation. I am not sure this can be done in practice, given the lack of scruples that some agents have shown in recent years.

The NCAA seems to argue that you cannot accurately determine damages among so many athletes with different levels of talent and publicity rights. Surely, Tim Tebow's publicity rights at the University of Florida were more valuable than an average player's rights. (I do not know if Tebow is in the proposed class.) This is not necessarily something that would have to be determined in the class certification stage, but the NCAA argues that it creates a conflict among the class members that should prevent class certification in the first place.

The NCAA retains the publicity rights of former players after their eligibility has expired. So the former players are asking for damages that include time periods after their eligibility has expired. This is probably the easiest issue on which the players can win. There is no reasonable justification for retaining former players' publicity rights after their eligibility has expired, and they have gone on to become professionals in something other than sports.

For instance, in EA Sports' NCAA Football series of video games, the running back for the 1983 Nebraska Cornhuskers cannot earn anything from his likeness being used in the video game, despite the fact that Mike Rozier's NFL career is long over and his NFL career pre-dates any royalties made from the NCAA Football video games. The NCAA retains Rozier's likeness for his time at the University of Nebraska in perpetuity.

The NCAA literally restrains competition. It is an organization comprised of individual schools -- horizontal competitors -- that compete in athletics. They have rules for effective competition. The limit of 85 scholarships for each Division I FBS school restrains competition, because some schools would easily be able to get more than 85 scholarship players. This rule does not offend anyone, because it promotes intercollegiate athletic competition. In some cases, the NCAA rules have been held to violate antitrust laws. Those for governing competition are generally considered okay.

Depending on how things play out with the class certification, the most likely chip to fall is the NCAA's ownership of publicity rights after the players graduate or their eligibility has expired. I think it is possible that the players could get a uniform rate of royalties that is placed in trust until they graduate, but to allow them to negotiate licensing rights while in school would completely obliterate college sports as we know it. It would turn college sports into the minor leagues. Giving players a piece of the revenue stream upon graduation, and allowing them to earn money from their likeness after their eligibility has expired seems the most reasonable resolution to this case, and maybe the most likely.

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