Throwing the Challenge Flag: NCAA Athletes Successfully Demand Expansion of Publicity Rights

wo recent federal court decisions reflect a judicial willingness to extend the traditional bounds of publicity rights, affording both current and former National Collegiate Athletic Association (NCAA) athletes the opportunity to share in the revenues earned from commercial use of their names and likenesses in videogames, live game telecasts, and other licensed products. Under the NCAA rules currently in place, college athletes are required to effectively assign their publicity rights to the NCAA (and the schools for which they play). As a result, players are unable to participate in a licensing market valued at $4 billion per year. Both federal court opinions address the collegiate licensing market, and affirm that the right of publicity, along with federal antitrust law, undermines the validity of the NCAA’s current licensing program.

In 2009, former U.C.L.A. basketball player Ed O’Bannon and former Arizona State and Nebraska quarterback Samuel Keller filed separate class-action lawsuits against the NCAA, Electronic Arts Inc. (EA), and Collegiate Licensing Company (CLC) on behalf of current and former NCAA student athletes. The two lawsuits, along with several related suits, were consolidated into two class actions. According to the Keller plaintiffs, the NCAA, EA, and CLC misappropriated NCAA football and basketball student-athletes’ rights of publicity (under California law) by using the players’ names, images, and likenesses in EA’s NCAA-branded videogames. More than half of the states in the U.S., including California, recognize the right of publicity—the right of an individual to control the commercial use of his or her identity. Maintaining that student-athletes effectively assign their publicity rights to their colleges or to the NCAA in exchange for sports-based scholarships and the right to play for a particular school, the NCAA licensed EA to produce video games from archived footage of television and radio broadcasts of NCAA games.

EA attempted to dismiss the case, raising several First Amendment defenses. Each defense proved unavailing. The Northern District of California—and later, Ninth Circuit—rejected the argument that the use of the players’ names and likenesses is transformative, noting EA’s use of highly similar depictions of players engaged in the same activities for which they are known in real life—playing college football or basketball. Similarly, the Ninth Circuit noted that EA is not publishing or reporting factual data. Accordingly, EA could not seek protection under a public interest defense or public affairs statutory exemption, under which the right of publicity does not apply to the use of a name or likeness in connection with any news, public affairs, or sports broadcast. Finally, the Ninth Circuit determined that the Rogers Test, which protects certain literary titles from claims of trademark infringement, is inapplicable in the right of publicity of context; while trademark law protects consumers from the risk of confusion, the right of publicity protects an individual’s rights in his or her person, and is not consumer-focused. (The Ninth Circuit has since affirmed its Keller decision in a similar case brought by former professional football players, Davis v. Electronic Arts, involving the Madden NFL videogame series.)

EA opted not to proceed further. In July of 2015, the Northern District of California granted final approval of a $60 million settlement between the NCAA, EA, CLC, and the Keller plaintiffs. The settlement class encompassed all NCAA Division I football and men’s basketball players whose team was included in an NCAA-branded videogame originally published or distributed from May 2003 through September 2014, and whose assigned jersey number appears on a virtual player in such videogame.

Because the parties ultimately settled, an open question remains: can the NCAA require that an athlete assign his right of publicity? The O’Bannon case squarely addresses the validity of the NCAA’s current rules, but references a different legal theory. According to the O’Bannon plaintiffs, the NCAA’s rules prohibiting student athlete compensation violate federal antitrust laws. The Northern District of California agreed, and, in an August 2014 opinion, barred the NCAA from continuing to impose those rules. After the NCAA appealed the decision, the Ninth Circuit paused implementation of the district court’s order pending its review.

The appeal will focus solely on antitrust claims. However, by affirming the district court’s order voiding the NCAA’s current rules concerning athlete compensation, the Ninth Circuit will effectively expand student-athletes’ publicity rights to include television broadcasts and other lucrative licensing arrangements to which NCAA players’ have historically been denied access. A victory for the O’Bannon plaintiffs would underscore the right of all individuals—regardless of industry-specific norms—to benefit from the commercial use of one’s identity.