The Right of Publicity - Show Me the Money

Abstract

This article sets out the consolidated lawsuits of former athletes Ed O'Bannon (UCLA) and Sam Keller (U. of Nebraska) against the NCAA. The plaintiffs allege that the NCAA and its business partners made agreements that unreasonably restrain trade in violation of the Sherman Antitrust Act and that the NCAA deprives former student-athletes of their right of publicity.

The right of publicity is a protectable property interest in one's name, identity or persona. Every person, celebrity or non-celebrity has a right of publicity that is the right to own, protect and commercially exploit one's identity. The genesis of the legal right is rooted in and intertwined with the right of privacy. Fame is valued.

O'Bannon's antitrust lawsuit against the NCAA challenges the right of the NCAA, the Collegiate Licensing Company & EA Sports to use student-athletes' likeness without paying them. On Sept. 27, 2013 Electronic Arts & Collegiate Licensing Co., the other defendants in the O'Bannon case tentatively settled the Plaintiffs claims against them for $40 Million dollars. This is subject to court approval and a plan of acceptable distrubution to the players. This leaves the NCAA as the lone defendant.

At the core of the plaintiffs unjust enrichment claim is the required signing at the beginning of each year, by each student-athlete, form 08-3a. This form authorizes the NCAA to use the athlete's name or picture to promote NCAA Championships and programs. A student athlete cannot participate in intercollegiate athletics until he or she has signed this form.

It is very possible that the NCAA's guiding principle of preserving amateurism will be a thing of the past. If that happens there will be significant changes in the NCAA landscape. Stay tuned.

Keywords: Sports Law, O' Bannon Case, Right of Publicity, NCAA, Sherman Act-Antitrust