The Keller/O'Bannon Lawsuit: Why Canadians Should Care

There is currently a live, ongoing legal dispute in California between former and current student athletes (SAs) and the National Collegiate Athletics Association (NCAA) which reveals that regulations defining collegiate eligibility did not foresee the nexus of new media technology and sport. Consequently, NCAA bylaws do not consider the effects of athlete intellectual property on player eligibility. Given this lawsuit’s predominantly college and American focus, it begs the question whether Canadians should be interested in the lawsuit. The answer to this is: yes!


Background

O’Bannon v NCAA is a lawsuit led by former University of California Los Angeles basketball player Ed O’Bannon and focuses on the NCAA’s misuse of athlete likeness in game footage (mainly commemorative DVDs) while Keller v Electronic Arts is led by Sam Keller, a former quarterback for both Nebraska and Arizona State University, and focuses on the misuse of athlete likeness in Electronic Arts football and basketball video games.[1] The two lawsuits, which have been consolidated in a California court, both claim the NCAA has unfairly profited from SA likeness. The case brings forth two contentious issues: first, do eligibility bylaws permit SAs to exploit likeness for economic gain while maintaining college eligibility? Second, do the same bylaws bar athletes from retaining damages awarded in intellectual property lawsuits?

Importance to Canada

There are two main reasons why Canadians, specifically lawyers and law students, should be interested in the Keller/O’Bannon lawsuit. First, a number of Canadians will be directly impacted by the case; and second, the case will establish a precedent for a novel issue in a niche area of law.

A. Canadian Athletes in the NCAA

There are a vast array of Canadians that will be directly impacted by this case. With the number of NCAA-bound Canadians rising, it is becoming the role of the Canadian sports professional to provide guidance to young athletes to navigate the intricacies of NCAA regulations, which now includes intellectual property exploitation and its impact on eligibility. Whereas a typical Canadian may discount the market-size for this advice, the number of Canadians competing in the NCAA is substantial: over 150 Canadians played Division I NCAA basketball in the 2012/2013 season, 35 Canadians played in the 17 NCAA Football Bowl Games in 2013, and one in five Canadian National Hockey League players competed in the NCAA at one time. Moreover, the role of a professional advisor is not limited to individual athletes but is also relevant to advising the NCAA itself and the 1,200+ institutions that comprise the NCAA, including Simon Fraser University, the first non-American member institution of the NCAA.

B.     Case Precedent

Many critics highlight that the SAs have a strong case.[2] However, it is the NCAA’s response to a judicial decision that will be intriguing. It would be very difficult to conceive the NCAA permitting athletes to earn money from likeness during their collegiate careers given the overarching purpose of the NCAA. Nevertheless, the captivating decision moving forward is whether athletes may retain damages awarded from intellectual property lawsuits. Seemingly, if athletes cannot licence likeness for economic gains, then SAs similarly cannot retain damages from athletic-related intellectual property lawsuits. However, ESPN reports that the NCAA would permit Texas A&M’s Johnny Manziel to retain damages from a trade-mark infringement lawsuit without impact to his collegiate eligibility. Thus, Manziel’s lawsuit reveals a possible “loophole” in the NCAA regulations and in amateur eligibility rules in general.

These issues have never been litigated before in amateur sports and, although arising in the context of NCAA athletics, the same issues can easily arise in other sports contexts in a multitude of jurisdictions. The bylaws of national and international sports federations, many of which govern sports in Canada, are also vague regarding the nexus of intellectual property and amateur status. Due to this vagueness, the sporting world simply does not know the boundaries for an amateur athlete’s ability to, or not to, exploit likeness and related intellectual property. Moreover, the case and the NCAA’s reaction will only constitute persuasive authority in relation to other sport bodies and jurisdictions. An issue of significant concern is that there remains the possibility athletes will be permitted to collect damages under NCAA bylaws but in doing so would risk losing amateur status under separate, sport-specific eligibility regulations.

The arguments, defences, reasoning, decision and aftermath of the Keller/O’Bannon lawsuit will provide direction to athletes and lawyers alike. With the trial set to commence in June 2014, Canadian athletes, sports administrators and lawyers should be following its progression.

Nicholas Arruda is a JD candidate at Osgoode Hall Law School and is currently enrolled in the course “Law & Social Change: Creative Industries” (Winter 2014). As part of the course requirements, students are asked to write a blog on a topic of their choice.

[1] Julie Brighton, “The NCAA and the Right of Publicity: How the O’Bannon/Keller Case May Finally Level the Playing Field” (2010-2011) 33 Hastings Comm & Ent LJ 275 at 277-79.
[2] See Andrew B Carrabi, “Strange Bedfellows: How the NCAA and EA Sports May Have Violated Antitrust and Right of Publicity Laws to Make a Profit at the Exploitation of Intercollegiate Amateurism” (2010) 15 Barry L Rev 17; Anastasios Kaburakis, “NCAA Student-Athletes’ Rights of Publicity, EA Sports, and the Video Game Industry: The Keller Forecast” (2009) 27 Ent & Sports Law.

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