"Jameis Winston crab legs" violates the Heisman Trophy winner's rights of publicity.

In the past few days, the 2013 Heisman Trophy-winning quarterback from Florida State University, Jameis Winston, was charged with the theft of $32 worth of crab legs from a grocery store. In response an Alabama grocery store started selling "Jameis Winston crab legs." Rights of publicity have been previously discussed. An individual has the exclusive right to license his or her likeness as they see fit (unless that person is an NCAA student-athlete). Clearly, Jameis Winston did not license his likeness to be used in connection with the grocery store's crab legs. Even though the grocery store was joking, its conduct does violate Winston's rights of publicity. If sued, the grocery store would be disgorged of all profits generated from said "Jameis Winston crab legs."

Student-athlete likeness litigation appears headed to trial.

Last week, the presiding judge in the NCAA student-athlete likeness antitrust litigation denied competing motions for summary judgment. The judge has not yet issued a written ruling on either motion, but indicated that the issues cannot be resolved without a trial. Keep in mind, there were two classes seeking certification, and only one was certified: current student-athletes. Former student-athletes were not certified as a class.

Interestingly, the presiding judge gave a scathing reply to the NCAA's argument that paying players would affect competitive balance: "Maybe you could enforce more competitive balance by having coaches' salaries addressed."

Does Fake Bo Pelini violate the real Bo Pelini's rights of publicity?

Rights of publicity protect a person's exclusive right to license their likeness to whom and on what terms they choose. This is at the heart of the NCAA student-athlete likeness antitrust litigation, because intercollegiate athletics may be the only place where this right is irrevocably transferred to the NCAA and its member institutions.

Fake Bo Pelini is a Twitter account designed to poke fun at the real Bo Pelini's sometimes surly and obstreperous nature. If the Fake Bo Pelini generates money from the use of Bo Pelini's likeness, he could be violating Pelini's rights of publicity. This does not appear to be the case.

The "Bo Pelini Foundation" is a registered trademark, but "Bo Pelini" is not. If "Bo Pelini" were a registered trademark or it was used on or in connection with goods or services, Pelini could not sue for trademark dilution, because Fake Bo Pelini is a parody account. If Fake Bo Pelini was not a parody and "Bo Pelini" were a registered trademark or used on or in connection with goods or services, then Pelini could sue for trademark dilution.

Student-athletes file motion for summary judgment in NCAA likeness antitrust litigation.

The student-athletes in the partially certified class action against the NCAA filed a recent motion for summary judgment. Summary judgment is granted when the parties agree on the important facts, and there is only one possible result from a legal perspective. Here, the student-athletes' motion for summary judgment will be denied, because even though there is no dispute on the important facts, more than one legal outcome can result from them. If NCAA rules were not upheld in the past, summary judgment may be granted. But courts have upheld NCAA rules before, and that precludes entry of summary judgment here.

NCAA seeks Supreme Court intervention on First Amendment argument in student-athlete likeness antitrust litigation.

On October 25, 2013, the NCAA filed a motion for review by the U.S. Supreme Court of the Ninth Circuit's decision on the NCAA's First Amendment argument in the student-athlete likeness antitrust litigation. The Ninth Circuit determined that the First Amendment argument did not apply, because the NCAA did not change the likenesses of the football players enough in the NCAA Football series of video games. The NCAA contends that the argument does apply, and wants the Supreme Court to decide the issue. As mentioned yesterday, certiorari is infrequently granted.

If certiorari is granted, the Supreme Court would review the decision concurrently with the likeness antitrust litigation. This sort of review is analogous to when a football coach calls timeout in a game so he can challenge a referee's decision and obtain further review. Upon doing so, the referee consults instant replay and decides whether his decision is confirmed, stands, or is reversed. Here, the difference is that the referee does not review his own decision; the Supreme Court would review the Ninth Circuit's decision.

EA and Collegiate Licensing Co. settle with former players in NCAA likeness litigation; NCAA only remaining defendant.

EA Sports and the Collegiate Licensing Company, defendants in the NCAA student-athlete likeness antitrust litigation, settled all claims with former and current college players. The defendants are paying the plaintiffs $40 million. The case has not been certified as a class action, so this was a good time to settle. If the defendants waited until a ruling on the plaintiffs' motion for class certification, they could have lost a significant amount of leverage in settlement negotiations, and they did not have much leverage at this point anyway.

The NCAA has not settled. It is the only remaining defendant, and publicly shows no indication that it intends to settle. I would be surprised if the NCAA allows the case to go to trial. The NCAA is banking on denial of the plaintiffs' motion for class certification. It also expects more public support as the case draws closer to trial.

Publicly, the NCAA claims it is prepared to go down with the ship; either college sports stays the same or the current model will be replaced with a minor league sports model. To college sports fanatics, of which there are many, this existential threat should garner the NCAA more public support as trial draws closer. Privately, the NCAA must be examining its options for settlement and how it would affect the current NCAA model.

NCAA moves to dismiss student-athletes' claim in likeness antitrust litigation.

Yesterday, the NCAA moved to dismiss the plaintiffs' antitrust claim in the NCAA student-athlete likeness antitrust litigation. In moving for dismissal, a defendant must show that there is no factual scenario on which a plaintiff could win the case. Usually, a plaintiff can show some factual basis that would entitle him or her to relief.

The NCAA relied on NCAA v. Board of Regents of the University of Oklahoma, which deregulated college football television broadcasts and paved the way for conference realignment. The NCAA argues that Board of Regents categorically approved NCAA rules on amateurism. The student-athletes argue the opposite. The student-athletes are right, because the legality of the NCAA amateurism rules was not in question in Board of Regents. Only the legality of the NCAA rules on television broadcasts was under consideration. Accordingly, anything the court said about NCAA amateurism rules in Board of Regents was non-precedential.

Filing a motion to dismiss was an odd move by the NCAA, because it will be denied. Proper motion practice is to file a motion only when there is a chance it will be granted. Otherwise, it is a waste of time. The NCAA would have been better off filing a motion for summary judgment. Although unlikely, it would have at least had the possibility of being granted.

Opting out of a class action: The NFL publicity rights example.

As discussed previously, class certification is required before a case is a class action. If a case settles after class certification, court approval is needed before the case can be dismissed. Class members who object to terms of any settlement can opt out of the class. If a class member opts out, he or she is not precluded from bringing another suit against the defendant. If a class member does not opt out, he or she is precluded from bringing another suit against the defendant (unless new facts or events are involved).

This happened in a case filed August 30, 2013. The plaintiffs are former NFL players, and they opted out of a previous class action, Dryer v. NFL. The plaintiffs argue that the NFL and NFL Films used their likenesses without compensation or their consent, like the plaintiffs are arguing in the NCAA student-athlete likeness antitrust litigation. Before approving a class action settlement, a court must make sure five requirements have been met:

- Reasonable notice must be directed to all class members bound by the proposed settlement;
- If the proposed settlement binds class members (which it usually would), the court can approve it only after a fair and adequate hearing on the settlement;
- The parties seeking approval of the proposed settlement must file a statement identifying the terms of any agreement;
- Any class member has a right to object; and
- The court can refuse to approve the settlement if a second opportunity for class members to opt out is not afforded, even if those class members previously had an opportunity to opt out.

Former NFL star Jim Brown made a strategic error in suit against EA Sports.

NFL hall-of-famer Jim Brown lost a recent appeal against EA Sports, in which Brown alleged that EA Sports used his likeness in the Madden series of video games without his consent. EA Sports is also a defendant in the NCAA student-athlete likeness antitrust litigation, and there are similarities between the two cases. The plaintiffs in the NCAA student-athlete likeness antitrust litigation alleged that their likenesses were used in video games without their consent. In the NCAA and NFL video games, names were not used, but other aspects of the players were imitated. The video game players shared the same jersey number, size, physical skills, skin color and other attributes with their real-life counterparts.

The names of most players are used in the Madden series of video games, because they are licensed by the NFL players' union (NFLPA). Player names that were not licensed by the NFLPA were not included in the game unless consent was given. There is no college football players' union, so no player names were used in the NCAA Football video game.

Brown made a strategic error in his lawsuit. The student-athletes' lawsuit alleged that the use of their likenesses was an antitrust violation. Brown alleged that the use of his likeness was a violation of federal trademark law, which was largely inapplicable to his case.

If Brown sued under common law rights of publicity, his claim would have survived dismissal because a different legal analysis would have applied. Instead, EA Sports filed a motion to dismiss, which was granted and affirmed on appeal.

Basically, in addressing the claim under trademark law, the court only considered the publicity rights issue insofar as it pertained to a violation of trademark law. Since Jim Brown's likeness is not a federal trademark, trademark law was largely inapplicable in his case. Brown should have known of the pending NCAA student-athlete likeness antitrust litigation, and amended his complaint to include a publicity rights claim.

If Brown had done this, when the trademark claim was dismissed, he could have still litigated the publicity rights claim. Since he did not, and the dismissal has now been granted, he is precluded from bringing the publicity rights issue in a new lawsuit.

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.