In February 2010, a U.S. District Court judge for the Northern District of California denied the National Collegiate Athletic Association’s motion to dismiss a class-action lawsuit that argues the NCAA and its licensees should compensate former student athletes for the use of their images and likenesses. Subsequent to the judge’s order, eleven former college football and basketball players joined former UCLA basketball star Ed O’Bannon in the litigation. O’Bannon alleges that the NCAA has and continues to enter into agreements that allow the use of his image without compensation paid to him, including a 2007 agreement between the NCAA and Thought Equity Motion, Inc. to offer “classic” college basketball games online.
The NCAA is a voluntary association of institutions, conferences, organizations and individuals through which the nation’s colleges and universities govern their athletics programs. The NCAA and its member institutions separately own and market large portfolios of trademarks and other intellectual property rights in connection with college athletics activities. Collegiate-licensed products include everything from clothing merchandise to electronic video games. It’s been reported that the NCAA’s licensing deals are estimated at more than $4 billion.
O’Bannon was a star power forward for the UCLA Bruins men’s basketball team from 1991 to 1995. O’Bannon alleges, on behalf of himself and other former student athletes, that the NCAA’s rules, regulations and licensing practices constitute anti-competitive conduct that deprives former student athletes of just compensation for use of their names and likenesses. In his complaint, O’Bannon cites NCAA Form 08-3a, which the NCAA requires student athletes to sign each year. By signing Form 08-3a, student athletes agree to the following:
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.
O’Bannon claims that the form requires student athletes to “relinquish all rights in perpetuity to the commercial use of their images, including after they graduate and are no longer subject to NCAA regulation.” O’Bannon Compl. ¶ 9. O’Bannon claims that this form, together with NCAA Bylaw Article 184.108.40.206 which authorizes a member institution or recognized entity thereof to use a student-athlete’s name, picture or appearance to support charitable, educational or activities incidental to the student-athlete’s participation in intercollegiate athletics, enables the NCAA to enter into licensing agreements with companies that distribute products containing the student athletes’ images.
O’Bannon claims that co-defendant Collegiate Licensing Company (CLC), the largest college licensing agency in the nation, serves as the NCAA’s “licensing arm” and facilitates these arrangements. O’Bannon alleges that CLC as the “licensing representative” of the NCAA represents colleges, universities and athletic conferences, and that after the NCAA and its members obtain releases from student athletes, CLC brokers agreements that do not compensate him or the other putative class members for the use of their images. As an example, O’Bannon cites an arrangement involving the NCAA, CLC and Electronic Arts, Inc. concerning video games that contain the likenesses of former student athletes. O’Bannon alleges that neither he nor other student athletes consent to these agreements, and that they do not receive any compensation for use of their images.
O’Bannon asserts that the NCAA’s and CLC’s actions excluded him and other former student athletes from the collegiate licensing market. He argues that because the NCAA has rights to images of him from his collegiate career, it, along with its “co-conspirators”, fix the price for the use of his image at “zero.” Based on this alleged conduct, O’Bannon is seeking monetary relief, disgorgement of profits from the wrongful use of former student athletes’ images, and a permanent injunction prohibiting the NCAA and CLC from using former student athletes’ images without valid consent. The NCAA claims that it does not license student athlete likenesses or prevent former student-athletes from attempting to do so.
On February 8, 2010, the District Court judge denied the NCAA’s and CLC’s separate motions to dismiss O’Bannon’s complaint, allowing it to move forward to discovery. Since the court’s order, eleven former college football and basketball players who competed in the 1990’s and in the past decade have joined the former UCLA basketball star in the class-action lawsuit.
Clear, though controversial, lines seem to exist currently that allow the NCAA to use student athletes’ names and likenesses without compensation during their amateur playing times. In O’Bannon v. NCAA, the court may take the opportunity to address the scope of the student athletes’ consent to use of their names and likenesses during their playing days, and the extent to which the NCAA can enter into licensing agreements that use former student athletes’ images and likenesses without compensation, such as “classic” college sports games online.