SAN FRANCISCO (CN) – The National Collegiate Athletic Association forced thousands of student athletes to sign away rights to their own images and cheated them of a share in the profits from DVD and video game sales, according to an antitrust class action in Federal Court. Led by former UCLA basketball star Edward O’Bannon, the class claims the NCAA forced students to sign the misleading “Form 08-3a” if they wish to play NCAA sports, which “commercially exploits former student athletes” by giving the NCAA the right to profit from their images without compensation, long after the athletes have left school.
O’Bannon led the UCLA Bruins to victory in the 1994-95 season and was named most outstanding player of the NCAA postseason tournament. The NCAA continues to use O’Bannon’s image without compensating him to promote the sale of DVD box sets, photos of him on its online store and stock footage of his basketball performances.
A “Classic Teams” video game produced by Electronic Arts allows players to select O’Bannon’s 1995 UCLA team, and UCLA games featuring O’Bannon are rebroadcast on ESPN Classic.
The value of the NCAA’s backlog of sports videos is estimated in the billions of dollars.
“It’s fair to say this is a new issue,” said O’Bannon’s attorney Jon King.
“The reason why we haven’t brought a lawsuit like this before is because it’s only been in the last four or five years that the merchandise has taken off, and it’s only in the last two years that the NCAA has established its online stores to sell DVDs, photos and video games.”
King said the terms of the NCAA’s forms are not adequately explained to student athletes, who often sign under duress.
“They’re called cattle calls,” King said.
“The athletes are herded into a room and given forms to sign. No one explains anything, there are no lawyers and no one has any idea what’s going on. But they sign because they just want to play ball.”
The NCAA has acknowledged that student athletes possess a right of publicity. In a September 2008 statement on why the NCAA would not sue CBS over its use of college player information, NCAA President Myles Brand wrote, “In the case of intercollegiate athletics, the right of publicity is held by student-athletes, not the NCAA. We would find it difficult to bring suit over the abuse of a right we don’t own.”
King said that when Brand made that statement, the NCAA most likely assumed that no one would confront them on the issue of former student-athlete rights.
“They’ve discussed this and have assumed that no one would have the temerity to challenge them because the players are long gone out of the system,” said King, who noted that since NCAA athletes are marketed as celebrities, they should be entitled to a share in the revenue they help generate.
“They market Ed O’Bannon’s photos by emphasizing that he was an MVP,” said King. “There is a place for amateurism in college sports, but at the highest level it’s big business. In any other realm, those that help create a successful product should be able to share in the profits.”
The class seeks “reasonable and less restrictive alternatives to the NCAA’s ‘zero compensation’ policy,” similar to those used by professional basketball and football teams.
“They all have different ways of defining group licensing rights, and there are workable ways out there to apportion money to players,” King said. “If you have a total superstar, he might opt out of the deal but they have mechanisms to protect and cover everyone. And this is really about the thousands of players that have made NCAA and its teams a lot of money.”
The complaint seeks health insurance for players as well as “additional education or vocational training and pension plans to benefit former student athletes.”
King said that though some student athletes get loads of positive publicity from products that include their images, for many the fame is fleeting.
Most student athletes do not turn professional, and face considerable expenses throughout their collegiate athletic careers.
According to the complaint, many “so-called full scholarships” do not cover student athletes’ basic necessities, and “many wind up substantially in debt,” often from medical bills for sports-related injuries.
“A great majority of players don’t benefit at all from the publicity. It’s just a moment in time for them,” said King. “It’s not all that it’s cracked up to be.”
The class seeks declaratory and equitable relief for antitrust violations and unjust enrichment. They are represented by lead counsel Michael Lehmann and Jon King with Hausfeld LLP.