Ed O’Bannon lawsuit dives into mysteries of
NCAA’s publicity form for athletes
BIRMINGHAM, Alabama — Every year, college athletes receive a stack of papers to sign. They’re part of what’s called the “Student-Athlete Statement,” which consists of multiple forms seeking signatures on everything from testing for drugs to testing for ACT/SAT scores.
One form in this package stands out lately and says this: “You authorize the NCAA [or a third party acting on behalf of the NCAA (e.g., host institution, conference, local organizing committee)] to use your name or picture to generally promote NCAA championships or other NCAA events, activities or programs.”
That statement is a key part of the Ed O’Bannon class-action lawsuit against the NCAA, EA Sports and Collegiate Licensing Company over the use of college athletes’ names, images and likenesses even after they leave campus.
How long can the NCAA hold those publicity rights? What rights do athletes retain by signing the form? And do athletes even need to sign that form in the first place to be eligible? Those questions surfaced in recent depositions and documents filed in the 3-year-old court case, which could be certified as a class action by next March.
NCAA President Mark Emmert testified last March he doesn’t think signing the form is a requirement for an athlete to participate in an NCAA-sanctioned event.
“I don’t know of an incident where that’s been an issue,” Emmert said. “I believe it’s the case that there is not a formal requirement, but I’m not completely sure of that.”
David Berst, an NCAA Division I vice president, testified the form is voluntary and that he has never been told some schools tell athletes they’re ineligible for a scholarship if they don’t sign.
“I’d be pleased to ensure that it’s clearly understood that you have a choice,” Berst said. “I frankly can’t imagine that any student-athlete would not want to be helping and be the one who might be depicted as promoting the next game. But if they don’t want to be, no, I’m fine with that. It makes sense to me.”
An Ithaca College survey of 213 Division I compliance officers found that 20 percent have witnessed athletes who did not want to sign part or all of the Student-Athlete Statement. When the survey asked if the document giving the NCAA promotional rights is necessary for an athlete’s eligibility, 80 percent of compliance officers said it is not.
“Many said that it really doesn’t have anything to do with eligibility apart from the fact that (compliance officers say) in order to be eligible athletes must sign that form,” then-Ithaca College sport management professor Ellen Staurowsky told The Birmingham News in 2011. “That’s a very interesting way of explaining things.”
“Not inconceivable” to pay ex-athletes
In his deposition, Berst was asked a series of hypothetical questions about whether the University of Kentucky could share any revenue derived from an athlete’s name, image or likeness after the player’s eligibility ends.
Berst said the promise of future pay would violate NCAA rules. “And that frankly is the nonstarter I’ve been talking about with our membership,” he said. “Our presidents simply won’t go there.”
Then came another hypothetical: What if Kentucky spontaneously issues $100,000 each to its starting five basketball players who won the 2012 NCAA title and now play in the NBA given that their names and images will be used on commercial products in the future? Berst said it’s “not inconceivable” that scenario could be permitted if there was no promise of sharing that money and no current athletes’ eligibility is impacted.
“I think Kentucky can end up paying whatever student-athletes are due for use of their likenesses when they’re no longer student-athletes by virtue of whatever those business kinds of arrangements are that are understood and reasonable by all of the lawyers,” Berst said. “It can’t be something special or extra or I’m going to take care of you more so than some other student-athlete attending another institution.”
The last hypothetical question: Could Kentucky apply a rule that when athletes end their eligibility, the school will give them all of their video footage to commercialize any way they wish?
“I would say the regulatory system of the NCAA, the rules of the NCAA, don’t address that kind of an issue,” Berst said.
Emmert and Berst testified the media-rights provision went into place about a decade ago for the purpose of promoting NCAA championships. Emmert said athletes who sign release the rights to use their image to promote championship games “for whatever period of time they’re used to promote championship games.”
“It’s really circuitous, isn’t it?” a lawyer for the plaintiffs asked. “How long? Infinite?”
“For promoting a championship game, yes, for that sole purpose, yes,” Emmert said.
Lately, the NCAA and the ex-players are locked in a battle of semantics over what points to admit. One of those points is over U.S. District Judge Claudia Wilken ruling that “student-athletes retain rights to their images, likenesses and names, and can license them once they are no longer student-athletes.”
The ex-players admit in court documents that Wilken’s order suggests athletes retain “certain rights.” The NCAA argues the response is “nonsensical and evasive” and wants the ex-players to admit this point “to the fullest extent possible.”
The ex-players say they have always acknowledged athletes retain some rights, but not all rights. “For example,” a lawyer for the plaintiffs wrote, “a former student-athlete can sign autographs, but he cannot sell footage of his game-winning shot at the NCAA tournament, because the NCAA takes the position that it is the owner of that footage.”
Former Alabama football player Tyrone Prothro, who is a plaintiff in the suit, told The News in 2011 that athletes give little consideration to the documents they’re instructed to sign.
“There are other things to worry about than signing a bunch of papers during two-a-days,” Prothro said. “Now, I realize I signed over pretty much my rights to everything that I accomplished.”
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