Class Action Seeks Compensation for Use of Likeness of Former NCAA Players
By Ian B. Brooks – Edited by Sarah Sorscher
Class Action Complaint, O’Bannon v. NCAA, No. CV 09-3329 (N.D. Cal. July 21, 2009)
Former National Collegiate Athletic Association (NCAA) player Edward C. O’Bannon, Jr. filed a class action lawsuit on behalf of former NCAA student-athletes in the US District Court for the Northern District of California against the NCAA, the Collegiate Licensing Company (CLC), and multiple alleged co-conspirators for unlawful use of class member’s images. The complaint seeks unspecified damages and injunctive relief for violations of the Sherman Act and unjust enrichment of the defendants as well as accounting of licensing revenues. In support of his complaint, O’Bannon cites sources of NCAA licensing of players images for which the players receive no direct compensation including DVDs, rentals of game films, on-demand sales of game footage, cable and network broadcasts of games, photographs, action-figures, posters, and video games. The complaint further seeks injunctive relief on behalf of current students with respect to their rights to control the use of their image and likeness.
The plaintiff, O’Bannon, is a former NCAA basketball national champion who played for the University of California, Los Angeles (UCLA) between 1991 and 1995. O’Bannon alleges that his image has been featured without his consent in various media over the last four years preceding the filing of the complaint. Defendant, NCAA is an unincorporated not-for-profit educational organization responsible for many aspects of collegiate athletics. To participate in NCAA athletics, the NCAA requires each student-athlete to sign Form 08-3a, which grants the NCAA the right to use the athlete’s name or picture to “promote NCAA championships or other NCAA events, activities or programs.” The complaint alleges that Form 08-3a has been utilized by the NCAA to prevent current and former athletes from receiving compensation. The complaint notes that the retail market resulting from college athletes has grown from $100 million per year in the 1980s to its current level of approximately $4 billion per year. With the increase in deals made by the NCAA and CLC, the complaint alleges that in recent years the NCAA has “unlawfully utilized the images of Class members.” Television deals in the billions of dollars, DVD sales and rentals, rebroadcasts of classic games, as well as video games from alleged co-conspirator Electronic Arts, Inc. are examples of deals that contribute to this growing market. The video games are particularly a target for their use of the player’s likeness and jersey numbers without use of the player’s pictures or name. Electronic Art’s games also feature players that are no longer in the NCAA as part of “classic teams” in the game. The complaint alleges that the use of player’s likeness in the games has not been authorized by the players.
This case is not the first against the NCAA seeking to end the practices of denying compensation to student-athletes for the use of their likeness. This case differs in focusing on seeking compensation only for players that no longer play for the NCAA. As noted by Sports Illustrated, a favorable decision for the athletes could change the market for the use of athlete images.
The complaint provides further support for these athletes by noting the sacrifices the players make in their education to support their athletic programs, the debt that “full-scholarship” players can carry upon leaving their schools, and medical bills and injuries that plague the players after their college years are over. If this case proceeds to trial, it will be left to the jury to decide whether the arguments in favor of the athletes have merit.