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.