NCAA athletes’ rights in dispute in court filing
Lawyers representing former and current college football and men’s basketball players in an anti-trust lawsuit said in documents filed Thursday that the NCAA says it does not obtain permission from athletes to use their names, images and likenesses in various ways, including live TV broadcasts.
The lawyers suggested that this “admission,” as the lawyers termed it, means that athletes should get what essentially amounts to back-pay once they complete their college careers.
Thursday’s filing also revealed that the athletes’ lawyers have told conferences across the country that the NCAA’s position potentially makes the conferences’ mega-dollar TV contracts unlawful. If the athletes – rather than the NCAA and its members — own the rights to their names, images and likenesses, the lawyers said, then the conferences do not possess the rights they are selling to broadcasters.
The documents were filed in U.S. District Court in California as part of a bid by the athletes’ lawyers to have the lawsuit certified as a class action.
The suit seeks damages from the NCAA; video-game maker Electronic Arts; and Collegiate Licensing Co., the nation’s leading collegiate trademark licensing and marketing firm. The 15 named plaintiffs, including former basketball stars Ed O’Bannon, Oscar Robertson and Bill Russell, say their names, images and likenesses were used illegally by the NCAA.
They allege that the defendants violated anti-trust law by conspiring to fix at zero the amount of compensation athletes can receive for the use of their names, images and likenesses in products or media while they are in school and by requiring athletes to sign forms under which they relinquish in perpetuity all rights pertaining to the use of the names, images and likenesses in ways including TV contracts, rebroadcasts of games, and video game, jersey and other apparel sales.
The NCAA and the other defendants have contended the case should not be certified as a class action, in part, because the plaintiffs have recently adopted legal approaches to their case that are fundamentally different from those cited in the plaintiffs’ underlying complaint. Among those differences, the defendants said, is the plaintiffs’ assertion that the athletes are entitled to damages based on revenue the NCAA and schools get from live TV broadcasts, not just from rebroadcasts of old games.
NCAA spokesman Bob Williams said in an e-mail Thursday night that the NCAA has “not had a chance to review the (plaintiffs’ latest) pleading, but we stand by our statements in our motion to strike” the motion for class certification. NCAA general counsel Donald Remy, in several statements, has expressed confidence in the association’s position in the case generally.
The plaintiffs’ filing Thursday references a statement made by Gregory L. Curtner, a lawyer for the NCAA, during a court hearing on the case in April 2011. “There is no document, there is no substance that the NCAA ever takes from the student athletes their rights of publicity or their rights of likeness,” Curtner said, according to the court transcript. “They are at all times owned by the student athlete. Now, the student athlete, while they wish to remain an amateur, cannot exercise them, but that’s their choice. They can stop being an amateur at any time they want and they can go become a pro, and they can start selling things. They own their rights at all times.”
Of this, the plaintiffs’ lawyers wrote: “If the student-athlete at all times owns the rights to his (name, image and likeness) and merely holds in abeyance in his college years the exercise of the right to be compensated for use of that (name, image and likeness), then it stands to reason that once he graduates, he should be paid that past compensation due to him.”
Curtner’s statement also was used in a series of letters that plaintiffs’ lawyer Michael D. Hausfeld sent to various conferences in August 2011. One of these letters, which went to the Southeastern Conference, was submitted as part of Thursday’s filing. The SEC is in the early part of 15-year TV contracts with ESPN and CBS that are worth $3 billion, but likely will become even more lucrative after ongoing renegotiations related to the conference’s addition of Texas A&M and Missouri this year.
Hausfeld’s letter says that if the NCAA’s position, as stated by Curtner, is shared by the SEC, “any contractual undertaking that (SEC) may have with ESPN, any other broadcast network and/or internet companies purporting to grant such networks … the right to … use the names, images and likenesses of college athletes would appear to be unlawful.”
The letter adds that the plaintiffs intend to prove that none of the conferences has the right to profit from licensing the names, images and likenesses of athletes “unless the college athletes, in a non-collusive marketplace, consent to such use (which they have not done) … ”
Later in 2011, as part of a proceeding in which the plaintiffs’ lawyers were attempting to force the SEC to turn over TV and licensing contracts as part of their pre-trial fact-finding, several conference officials stated in documents that “it is the practice of SEC member institutions to ask student-athletes to execute” a wide-ranging form that, among other things, grants the school permission to broadcast or rebroadcast events for which the student-athlete is present.
“This form,” the conference officials stated, “is administered by the SEC member institutions directly – the SEC itself is not involved in the execution of these forms and does not receive or maintain copies of them.”