PBS Frontline on “Money and March Madness”

PBS Frontline aired “Money and March Madness” last night, a feature including the potentially ground-breaking O’Bannon v. NCAA case.  Michael McCann of the Sports Law Blog and Sports Illustrated was interviewed for the feature.  Here is a brief excerpt regarding the issue of student-athletes’ right to publicity and the NCAA’s argument that student-athletes waive those rights upon signing the required Student-Athlete Statement:

PBS: Let me put it a different way. O’Bannon, all the college athletes today, student-athletes, they all sign this form, right? And it’s our understanding that this form has a clause in it that says you’re signing away all your rights, basically, to the NCAA and to the school that you went to. So what’s this litigation all about?

McCann: O’Bannon would argue that the Student-Athlete Statement, which, as you noted, Lowell, is required of students to sign if they want to play college sports — students who may be 17 or 18 years old know that if they don’t sign that statement, they will not be able to play sports. And if they can’t play sports, they may not get their scholarship. And if they don’t get their scholarship, they may not be able to afford school. So O’Bannon is saying, well, that’s not really much of a choice, is it, because you’re required to sign this form.

Not only does it seem as if we don’t have a choice, but the form itself shouldn’t have the meaning that the NCAA seems to perceive. The form means that players give up their proprietary interest while they’re in college, so the NCAA can use their likeness and image while they’re in college to promote the NCAA and to promote the colleges that the players are associated with.

O’Bannon is saying, even if that’s OK, which he doesn’t seem to concede, but even if that’s OK, it shouldn’t continue after I’ve left school, because the NCAA, as it’s argued, is concerned about the exploitation of student-athletes; that if they were to be able to do their own deals while in college, there would be charlatans who exploit players and the like. But O’Bannon is saying: “I’m 39 years old. Why is it that I need to be protected by the NCAA nearly 20 years after I played college basketball? I should have a right to get paid. That form shouldn’t take the effect that the NCAA seems to interpret.”

Click here for the entire excerpt from McCann’s interview, which is excellent.  One of the many interesting points made in the interview is that the NCAA frowns upon a student-athlete using legal counsel to review the Student-Athlete Statement.  From the plain language of the statement concerning the student-athletes’ right to publicity it is doubtful that a student-athlete has any appreciation for what he or she is signing away. 

PBS has also posted a nice description of O’Bannon v. NCAA.

Stay tuned for more on this case as it progresses.

Comments

  1. I cannot comment much on the legal aspects of this case as I know only enough law to keep myself out of jail. However, I’d still like to make a few sporadic comments on this particular issue:

    First, this case would be much better as a proactive measure and not a reactive measure. I can understand bringing this case to court to help future players but can this case really come to fruition for past players? In other words, can payment to past players like O’Bannon realistically be accomplished? How can the amounts owed be quantified? If the NCAA loses, does that mean thousands of former players who may have had likenesses shown in TV promos or in video games now come knocking on the NCAA’s door and expect payments? That would be a logistical nightmare for all involved.

    Second, O’Bannon’s case may eliminate “restrained trade in violation of the Sherman Act”, but in doing so I believe former players will not benefit financially in the long-run. Let us say O’Bannon and all other ex-players are now free to license their own images. Do you think video game producers who want to create a NCAA basketball game featuring former players are going to deal with the hassle of negotiating with 2,000 separate former players, even if in the long-run it’s cheaper than the price the NCAA may have offered? Are CBS and ESPN going to negotiate with 20 former players each time they want to run a retro promo or classic NCAA basketball game? O’Bannon’s case, to me, would probably kill the market for any media featuring past NCAA players. There would no longer be NCAA video games produced featuring former players. ESPN Classic would no longer show retro NCAA games. CBS and ESPN would just run promos that include the likeness of current NCAA players, which for them is an easy fix.

    NCAA players past and present should have some sort of association or external corporate entity created that can then become the legal owner of the “right of publicity” for these players once they have left school. Then, each player can deal with this one entity regarding how much they would like to negotiate the price for use of their likenesses. This way, sports media and video game publishers can still come to one source for these rights when they wish to feature them in their respective products. Following this model, the O’Bannon case at least has some merit for current and future NCAA players.

Trackbacks

  1. [...] few weeks ago, I posted an excerpt from Michael McCann’s interview on the PBS Frontline feature “Money and March Madness,” concerning the O’Bannon v. NCAA matter.  Connecticut Sports Law reader Brian posted some [...]

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