Image-Rights Kerfuffle Heats Up for NCAA


     (CN) – The NCAA must face claims that it illegally prevented former student athletes from making money off their images in video games and merchandise, a federal judge ruled.
     Since 2009, a group of former NCAA athletes have been embroiled in a legal battle over the use of their images in video games, merchandise and other promotional materials.
     In the first complaint, former UCLA basketball player Ed O’Bannon said the NCAA violated his and other athletes’ right to make money off their likenesses.
     The athletes also sued NCAA licensing arm Collegiate Licensing Co. and the video game company Electronic Arts. Those companies settled with the athletes on Sept. 26.
     After two years of litigation, the action involves 25 named plaintiffs.
     Four of the athletes claim that the NCAA violated their rights of publicity by misappropriating their names and likeness, while the other 21 say the NCAA violated antitrust laws by conspiring to ensure they made no money off their likenesses.
     U.S. District Judge Claudia Wilken refused Friday to dismiss the athletes’ third amended consolidated class complaint.
     Among other things, the NCAA claimed the class antitrust claims are “nothing more than a challenge to the NCAA’s rules on amateurism” and that the athletes “have no protectable name, image or likeness right in sports broadcasts.”
     Citing the 1984 Supreme Court decision in NCAA v. Board of Regents of the University of Oklahoma, Wilken said there was not a “sweeping proposition” that student-athletes are permanently barred from receiving money for the commercial use of their names and likenesses.
     “Although it is possible that the NCAA’s ban on student-athlete pay serves some procompetitive purpose, such as increasing consumer demand for college sports, plaintiffs’ plausible allegations to the contrary must be accepted as true at the pleading stage,” Wilken wrote.
     The NCAA also failed to prove that the athletes’ lack of publicity rights meant their antitrust claims should be dismissed under California law and the First Amendment, the judge found.
     “Although the First Amendment – unlike the California Civil Code – does impose certain limits on the right of publicity in every state, the NCAA has not shown that those limits preclude plaintiffs from asserting publicity rights in the specific types of broadcasts at issue here,” the 24-page opinion states.
     Wilken added that “neither the Supreme Court nor the federal courts of appeals have ever squarely addressed whether the First Amendment bars athletes from asserting a right of publicity in the use of their names, images, or likenesses during sports broadcasts.”
     The NCAA also failed to show that the Copyright Act pre-empts publicity-rights claims from the athletes.
     Because the athletes do not own copyrights of the game footage, they are not seeking to protect their copyrights, the judge found, adding that the claims “are based principally on an injury to competition, not simply misappropriation.”
     Three days before Electronic Arts settled the O’Bannon case, it petitioned the U.S. Supreme Court regarding a similar case brought by former college football quarterback Sam Keller.
     The NCAA had not been involved in the underlying appeal but it petitioned the Supreme Court about the case Friday, saying in a statement that EA’s settlement may mean “that there will not be a party in the Supreme Court to raise the First Amendment issues, as EA had done in the Ninth Circuit.”
     “The court should therefore allow the NCAA to enter the case and continue to press the important First Amendment arguments,” the NCAA added.

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