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Should The NCAA Forever Own My Rights?

David Paulson, Junior HKSCKPVIamp; Tight End Player at the University of Oregon
Monday, 17 May 2010 | 10:46 AM ET

Darren Rovell is on assignment and unable to post today - but Sports Biz lives on. Today's special Sports Biz Guest Blogis from David Paulson a junior business administration major at the University of Oregon with a concentration in sports business. He plays tight end for the Ducks football team.

A college football player has everything he could ever dream about. The chance to play a game he loves in a stadium filled with 60,000 screaming fans. He is seen all across the country and is loved by his school and his schools fans (when everything is going well). He gets the chance to go to school for free and live a life that many people dream of.

David Madison | Photographer's Choice | Getty Images

From an outsider’s perspective, it may seem like they have everything that they could ever ask for. But, there is something that the college football player does not have. That is the right to his publicity and his likeness.

I am a college athlete that can attest that I am living my dream. I get to play a sport I love and I am receiving a college education for free. I understand that I am fortunate to have all the opportunities that I have, but I think the way that the NCAA uses current and former players to make money is worth taking a look at.

When that 18-year-old arrives on campus he signs his rights away to the NCAA because he is given no choice or legal guidance. This gives the NCAA and the companies they license to an opportunity to make millions of dollars. After a college athlete plays four or five years and helps make millions of dollars for the NCAA through licensing deals, then it would seem logical that the player should get his publicity rights back because he is no longer a member of the NCAA.

However, the NCAA does not release the rights to the former players.

The NCAA and EA have continued to use former players in order to make more money. No one really noticed that the NCAA was doing anything wrong until a few former players discovered that they were seeing their images and likeness being used by the NCAA without getting their consent. They decided it was time that for someone to stand up for the players’ rights.

Ed O’Bannon decided it was time for someone to stand up to the NCAA when his friend showed him a video game that featured him and his UCLA team. “My friend said, ‘The funny thing about this is you didn’t get paid,’ ” O’Bannon recalls. “He laughed pretty good and I just sat there thinking, ‘Wow, that’s true.’ My reaction was a little bit of embarrassment, but I was also disappointed that no one told me that they were going to be using my likeness to make this video game. They never sent me any paperwork. I didn’t release my face or my likeness.”

This lead to a lawsuit Edward C. O’Bannon, Jr. v. NCAA and Collegiate Licensing Company. O’Bannon is not only upset about the video games he was displayed in. He is also upset about seeing himself in DVDs, TV, photos, memorabilia, and advertising. He believes current NCAA athletes should receive royalties when their likeness is used by the NCAA and that former players should regain the control of their likeness and that the NCAA should be prohibited from using a player’s likeness once they are out of school.

I think that O’Bannon has a good chance shot at this case, but the only problem is that players do give their consent for the NCAA to use their name or likeness. The problem is that the players sign that right away as soon as they enter college. I think that there needs to be a change. I understand that college athletes give up their publicity rights when they become a college athlete, but I think they should regain their publicity rights once they leave school. Once the player graduates he should be able to negotiate with the NCAA about the use of his name and likeness.

Ed O’Bannon isn’t alone in thinking that the NCAA is taking advantage of college athletes.

O’Bannon’s lawsuit has been combined with a lawsuit brought by Sam Keller, who brought suit against Electronic Arts , the NCAA, and Collegiate Licensing Company for the use of his likeness in video games without his permission. His claim is that it directly violates the NCAA bylaws contracts and licensing agreements prohibit outside entities from using NCAA players’ names, pictures, and likeness.

He says that the NCAA and Collegiate Licensing Company are not doing enough to prevent EA from using players’ likeness in their video games. I agree that it is obvious that EA uses players’ likeness when developing their video games, but I think this part of the suit will be harder to win.

The players on the game do have the same look, style, and for the most part the skills as the player in real life, but EA leaves the names off of the players having this type of case in mind.

It will be a hard case to prove, but there is one past case that may help his cause. A group of former NFL players sued the NFL Players Association for the unauthorized use of their likeness in Madden (another EA football video game).

The former players won the case and the NFLPA was forced to pay the former players. The difference in that case was the players were professionals and were able to be paid for licensing deals.

'IT IS UNLIKELY THAT THEY WILL WRITE A CHECK'

Football
Football

Even if the lawyers on the Keller part of the suit can prove that EA is using NCAA player’s likeness is it unlikely that they will write a check to all of the players in the video game. This would put the amateurism of college sports in jeopardy.

I understand some people may disagree with these former players. Some people might think that these are former college athletes that are asking for more than they deserve. Some fans might think that a free college education is a fair trade for a players publicity rights. Other fans add that college athletes are given the opportunity to make it to the pros and that they can make their money there.

I think it is worth noting that is estimated that only two percent of college football players get drafted and even if they get drafted that the average career is about three years. So for a lot of guys college is the highest level they are going to be able to get to and they are unable to take advantage of their opportunity by making money on endorsements or using your name in anyway.

I believe some changes should be made to the way that the NCAA uses college athletes’ publicity rights. For example, a college athlete can’t even use his own name to make some extra cash. One of my teammates sells cars and the one thing he isn’t allowed to do when selling the cars is to use his own name to publicize his business.

He is not allowed to use his name to make some extra money, but if you turn on the television on a Saturday you will see ESPN promoting an upcoming game by using a players’ name and image.

I would also like to bring up the Jeremy Bloom case where he was not allowed to earn endorsements for skiing while being a college football player. I do not think this is right. He was not allowed to use his name to make money in a totally different sport.

I understand the NCAA does not want to try to deal with college athletes getting endorsement deals and trying to determine if they are still amateur athletes, but this is not right. If the endorsement comes from being involved in a different sport or industry then it should be allowed. They should just have rules that state you can’t mention anything about his college athletic career.

It seems like the NCAA doesn’t want anyone using a players’ name to make money besides them. For instance a college athlete cannot even use his name to run a football camp to make some extra money. It doesn’t seem fair that the NCAA is the only one with rights to make money off of college athletes. I think some changes need to be made to give some of the rights back to the players.

They could put a cap on how much a player can make or make some other restrictions, but at least give the players the right to use their name. Now I am not saying that college athletes should be paid to play or be able to sign big endorsement deals. I think this would ruin college football because the schools with the most money would get the best players. I do think that players should be able to use their names to make some extra money and to help market themselves for their future.

Giving a player the rights to use their own name would allow players to establish their names for careers after college. My teammate could use his name in his car business and it could help establish his name for after college. Another teammate could start a camp in his hometown and it would help establish his name in town and establish a small business opportunity for after college. I believe college athletes should be allowed to use their names to build their personal brand for after college. Not everyone is going to go play in the NFL and I think it is important that the athletes are given the chance to grow their personal brand for after college.

I understand that this would be difficult for the NCAA to monitor and that some places would try to take advantage of these rules. I just think it doesn’t make sense that the NCAA uses players’ names and images to make money, but the players get no chance to use their own name. At the end of the day if it is too much to ask to let college players have their publicity rights at least give us our rights back to us when we are done playing.

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David Paulson is a junior business administration major at the University of Oregon with a concentration in sports business. He plays tight end for the Ducks football team. David can be reached at dpaulson@uoregon.edu

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