A 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 excellent comments that are worth sharing. I’ll be posting my response next week:
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.
For more on O’Bannon v. NCAA, see my new article “Calling a Foul: Ex-college athletes file suit over uncompensated use of likenesses”, published in the April 18, 2011 edition of the Connecticut Law Tribune.