N-C-Double Don’t: Student-Athletes’ Likenesses No Longer Free for Use

A landmark ruling on Friday August 8, 2014 determined that the National Collegiate Athletic Association  (the “NCAA”) can no longer stop its athletes from selling the rights to their own names, likenesses, and images. As such, major college student-athletes in men’s football and basketball could walk away from their locker rooms with gym bags full of money (figuratively speaking of course). The impact of the decision is monumental for college sports – not only has there been a declaration that student athletes have intellectual property rights to their own likenesses, but the decision has also forced a re-evaluation and re-shaping of the American collegiate sport model.

 

As was discussed in the IPilogue post by Nicholas Arruda, Friday’s ruling stems from a lawsuit  filed by former UCLA basketball star Ed O’Bannon. O’Bannon and nineteen others sued the NCAA, claiming that the organization violated the Sherman Antitrust Act  because of its rules that prohibit student-athletes from receiving a share of the revenue earned by the NCAA and its schools from selling  licenses to use the names, images, and likenesses of its athletes in footage like live game telecasts, commemorative DVDs, and video games. NCAA regulations only allow its players to receive money for attending school and through scholarships, arguing that their restrictions on compensation for student-athletes are necessary “to uphold its educational mission and to protect the popularity of collegiate sports.”

 

U.S. District Judge Claudia Wilken did not agree with the NCAA, and at the end of her ninety-nine page decision she issued an injunction prohibiting the NCAA from continuing on in its ways. Taking effect at the start of the next Bowl Subdivision Football and Division I Basketball recruiting cycle, student-athletes will now receive a share of the revenue generated from the use of their likenesses. The funds will be held in a trust until the student leaves school or is no longer able to compete. The injunction allows the NCAA to set a cap on how much they give to its athletes, however it does “prohibit the NCAA from setting a cap of less than five thousand dollars (in 2014 dollars) for every year that the student-athlete remains academically eligible to compete.” Schools also have the option to offer a lower amount, but only if the schools do not illegally conspire with each other when setting the number.

 

Those on team NCAA are not exactly happy with the loss, and have already reportedly indicated an intention to appeal the decision. Those on the opposite side of the court to O’Bannon argued that paying players and moving away from amateurism (where “players participate for the love of the game”) would cause a drop in the number of college sport spectators and would create an imbalance among schools and conferences. NCAA witnesses further contended that the education athletes receive is in fact payment for their services.

 

Several players however testified that they viewed being an athlete and not a student as their main job while at college.  According to ESPN.com O’Bannon testified: “I was an athlete masquerading as a student…I was there strictly to play basketball. I did basically the minimum to make sure I kept my eligibility academically so I could continue to play.” Co-lead counsel for the plaintiffs Bill Isaacson said to the media that he was pleased with the verdict, calling it a “major step towards decency for college athletes.” Furthermore, Rutgers law professor Michael Carrier, who specializes in antitrust and IP law, reportedly says the outcome may not actually be that scary since payouts may not be huge and will only come to the athlete after their career is over.  In a statement to USA Today, Carrier does however recognize that the decision is a huge loss for the NCAA because their prized defences of amateurism and competitive balance  are no longer persuasive in the face of an argument of fairness. As O’Bannon reportedly said: “It is only fair that your own name, image and likeness belong to you, regardless of your definition of amateurism. Judge Wilken’s ruling ensures that basic principle shall apply to all participants in college athletics.”

 

So what now? In a very opinionated article about the decision CBS Sports’ senior college football columnist Dennis Dodd said that “a seal has been broken. Players can be paid, and we can’t turn back from here.” And since the ruling is limited to male football and basketball players surely the cause will also be taken up by female athletes and those in other sports. The future implications of the decision, from its impact on the structure of American college sports, the potential influence it will have on athletes in other jurisdictions, and to the financial consequences for major sport colleges, speaks to just how important IP law issues are in all realms, whether it be business, sport, or education. The fact is, you have a right to you – it does not matter if you work in an office tower or run drills in a gym. Your name, image, and likeness are yours and, as confirmed by Justice Wilken, they are not for someone else to benefit from for free.

 

Jaimie Franks is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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