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.