I had the privilege of leading a discussion on O’Bannon v. NCAA and the right of publicity with a group of high school students in the Sports and Entertainment Management Program of the National Student Leadership Conference at Fordham University. Here are some notes and observations that are worth sharing:
- The students, who were extremely intelligent and engaged, were more informed than expected with regard to O’Bannon v. NCAA. They weren’t necessarily familiar with Ed O’Bannon, but many had a wealth of knowledge about EA Sports and its NCAA Basketball game. In fact, one student asked whether the lawsuit was the reason that EA pulled the game for 2011.
- The students also grasped the concept of the right of publicity quickly and made the analogy between athletes and celebrities. A few students made the point that if celebrities can benefit from using their likeness, student-athletes should be able to as well. In addition, although the students were aware of the amateurism concept, they saw no reason why professional players should be paid for allowing their likenesses to be used in video games, but student-athletes are not paid.
- Many were aware of the Student-Athlete Statement that athletes must sign to compete, and upon which the NCAA relies to provide EA Sports a license to use the images and likenesses of student athletes.
- The argument that the student-athletes are compensated with scholarships did not fly. (Interestingly in my law school class there were many supporters of this argument – perhaps student loans can change perspectives.) One student made the point that the scholarship rewards the athlete’s hard work and talents; money made from video games was something extra, and the student-athletes should be compensated for that.
- I learned a lot about video games from the students, including the fact that Bill Belichick is one of the only, if not the only, coach who does not appear in EA Sports’ Madden Football game.
- One student was incredulous over the fact that trial was not scheduled until March 2013.
- One interesting aspect of the video game aspect of O’Bannon v. NCAA (it also involves rebroadcasts of classic games) is how technology has allowed video games to so closely replicate images of athletes. Check out the video below to see the evolution of video games from 1979 to present.
Thank you to the students in the Sports and Entertainment Management Program and Domingo Meneses, Program Director, for welcoming me to their class last night. Also, a special thanks to Rob Romano for arranging my visit.