by Jan I. Berlage and Ryan A. Notton[1]

On June 9, 2014, the U.S. District Court for the Northern District of California began a three-week bench trial to decide whether, among other things, the NCAA illegally restricts athletes from being paid for the use of their names, images, and likenesses. The case, Edward C. O’Bannon, Jr. v. National Collegiate Athletic Association, et al.,[2] is one of many legal actions filed by current or former college athletes in the last five years seeking, in one form or another, a greater share of the profits derived from college athletics. A detailed summary of this litigation and the issues raised in the 1,000+ filings is beyond the scope of this article. This article focuses on the argument raised by the NCAA at summary judgment and various broadcast companies as amici that the athletes have no rights of publicity in live telecasts,[3] so that the NCAA cannot be guilty of restraining these nonexistent rights.

The TV rights are the most important financial issue in the litigation to the NCAA. Nearly 80% of the NCAA’s revenues for the year ended August 31, 2013 came from multimedia agreements, with most of the money coming from its yearly installment of the $10.8 billion, 14-year deal with Turner Broadcasting System Inc. and CBS for the Division I Men’s Basketball Championship.[4] Other broadcasters have spent billions to acquire the rights to televise football bowl subdivision games. Understandably protective of these financial interests, the NCAA and TV broadcasters have vigorously defended the structure of the current system that shares none of this money with the adult athletes that consumers pay to watch. Indeed, these entities argue that the athletes have no rights of publicity in a broadcast of a team sporting event because these rights vest exclusively in the producer of the event.[5]

Most states recognize that an individual has an intellectual property interest in his or her identity and should be able to control, subject to the limitations of the First Amendment, the commercial use of his or her identity. A majority of states allow an individual to recover damages when a person or entity misappropriates that individual’s right of publicity by using, without authorization, the individual’s name, image, likeness or other recognizable aspects of an individual’s persona for the defendant’s commercial advantage. While the protectable elements of a person’s identity vary by state, the states that recognize this tort would allow you to properly sue someone who, without your permission, inserted your picture on their product label or advertisement. Numerous celebrities have recovered damages for the unauthorized use of their name, image, or likeness to promote a product.

The only time the Supreme Court has reviewed the right of publicity is Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S.5 562 (1977). In Zacchini, an entertainer, Hugo Zacchini, performed his “human cannonball” act at an Ohio fair in which he was shot from a cannon into a net approximately 200 feet away. Id. at 563. Mr. Zacchini requested the reporter not to film his performance but, the following day, the reporter filmed the act and the short film clip of the entire act was featured on the local news program that night. Id. at 564. The Supreme Court held that the First and Fourteenth Amendments did not protect the TV station from damages for its infringement of Mr. Zacchini’s right of publicity. The Court explained that the Constitution does not confer a blanket right for the media to broadcast a performer’s entire act without his consent. Id. at 575. Zacchini seems to foreclose the argument that the First Amendment allows the broadcast of an entire athletic event without the prior license or consent of all parties with ownership rights in that performance. But it does not answer whether college athletes hold rights of publicity in their performances.

In the authors’ opinion, there is no principled reason why participants in team sporting events could not hold rights of publicity in these events. If the members of The Beatles can enforce their rights of publicity,[6] why should a group of athletes merit different treatment? Furthermore, in Dryer v. National Football League[7], former NFL players survived summary judgment on their right-of-publicity claims against the NFL for the use of old video footage in promotional videos. While the class action ultimately settled, the litigation suggests at least one federal judge would entertain the notion that the athletes participating in a team sporting event have rights of publicity in the broadcast of that event.

The evidentiary questions are whether the athletes waived their right-of-publicity claims by participating in sporting events they knew would be televised or whether the athletes validly transferred these rights to the NCAA via the contracts they were forced to sign to participate in NCAA collegiate athletics. The NCAA has strong defenses on these issues. But it is easy to see why the NCAA prefers to focus on whether state law recognizes a right of publicity for participants in team sporting events. After all, proving that current and former athletes gave up their publicity rights might win the battle but lose the war. A finding that NCAA athletes have rights of publicity in the use of their likenesses in TV broadcasts and that the NCAA cannot prohibit athletes from seeking compensation to license these rights would deal a major blow to the current financial model of college sports.

[1] Jan Berlage is a partner with Gohn Hankey Stichel & Berlage LLP. Ryan Notton is an associate with the same firm.

[2] Case No. 4:09-cv-03329-CW.
[3] See In re NCAA Student-Athlete Name & Likeness Licensing Litigation, formerly a consolidated case overseen by Chief Judge Claudia Wilken: Samuel Michael Keller v. Electronic Arts Inc. et al., 09-cv-01967-CW (lead case) and Edward C. O’Bannon, Jr. v. National Collegiate Athletic Association et al., 09-cv-03329-CW. Brief Amicus Curiae, Document No. 1047-1, filed May 2, 2014 (the “Amicus Brief”).
[4] See Audited NCAA Consolidated Financial Statements for 2012 and 2013, available at http://www.ncaa.org/sites/default/files/NCAA_FS_2012-13_V1%20DOC1006715.pdf

[5] Amicus Brief, at 2.

[6] See Apple Corps Ltd. v. A.D.R.P., Inc. 843 F. Supp. 342 (D. Tenn. 1993).

[7] Dryer v. National Football League, 689 F. Supp. 2d 1113 (D. Minn. 2010).