Playing Ball for the Billionaires

College athletes across the United States are trading in their jerseys for suits to take on a different court: the District Court.

On June 15, 2020, a class-action lawsuit was filed against the National Collegiate Athletic Association (NCAA) on the grounds of breaching federal antitrust laws. Regulations such as the NCAA’s amateurism rules prohibit college athletes from using and being compensated for the use of their name, image, and athletic reputation. In recent years, these regulations have been increasingly contested by college athletes, alleging that the NCAA, a billion-dollar corporation, is protecting its monopoly over college sporting in the United States.

An athlete’s reputation, name, and image are the foundation of the intersection between intellectual property and entertainment. The World Intellectual Property Organize notes that “even without a registered trademark… celebrity athletes have “image (or personality) rights” to prevent the unauthorized use of their name [or] likeness.” Once a student-athlete has developed into a professional athlete, how they can protect their image grows exponentially.

In this class-action lawsuit, the NCAA attempted to justify its regulations by claiming that the status of “amateur” was not categorically valid in the commercial setting. However, considering the modern context of college sports, especially college basketball, there is a strong argument to be made in favour of recognizing players as celebrities.

Recently, there has been a growing media frenzy surrounding the NCAA’s March Madness event. As the NCAA’s popularity skyrockets, issues regarding right to image and compensation surfaced as athletes found themselves increasingly restricted by the amateurism regulations.

O’Bannon’s Legacy for College Athletes

In 2008, Edward O’Bannon, a University of California, Los Angeles (UCLA) basketball player, was depicted in a video game by Electronic Arts (EA). In said game, there was an avatar “who visually resembled O’Bannon, played for UCLA, and wore [his] jersey number, 31.” O’Bannon never consented to having his image used in the video game, and EA, a multi-million dollar gaming software corporation, never offered to compensate him for their use of him as a character.

When O’Bannon’s case was brought before the district court in 2015, Judge Claudia Wilken ruled that the NCAA’s amateurism rules violated federal antitrust law, and ordered colleges to pay male basketball and football athletes up to $5,000 per year for the use of their image. The cumulative sum was to be paid after they graduated.

During the appeal, the majority of the Ninth Circuit Court upheld Wilken’s ruling on the illegality of the NCAA’s amateurism regulations, but struck down the injunction forcing schools to pay specific athletes up to $5,000 per year. This decision left the college community uncertain on where the courts stood in regards to allowing college athletes to use and profit from their image.

As Oregon’s star basketball player, Sedona Prince, said: “For all the hard work college athletes put in, for all the risks we take and injuries we sustain, and for all the money we generate, we should at least be able to share in the profits that can be made off of our own names, images and likenesses… If not us, who can rightfully claim that and profit from it?”

Prince is one of many college athletes who have joined the class action filed earlier this year. Her words resonated with the college athletics community, and acted as encouragement for others to step forward and join the suit. Hagens Berman, the law firm spearheading this suit, has opened the case for all active athletes since 2016 and announced that there would be no fee to join the suit or benefit from the settlement or lawsuit.

What’s Next?

While this case has just begun, it presents an opportunity to revolutionize intellectual property law in amateur sports. We may see the NCAA push this case up to the Supreme Court for a final ruling on whether student-athletes should be entitled to compensation for the reputation they craft on the court. If the ruling favours the college athletes, there would be reforms across amateur sports. This includes renegotiating contracts between players, colleges, and the NCAA, the repeal of regulations limiting compensation for image and likeness, and an expansion of intellectual property law more generally. This is definitely a case to keep an eye on.

Written by Adele Zhang, a first-year JD student at Osgoode Hall Law School. Adele is interested in the intersection between IP,  sports law, business law, and employment law.

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