Broadcast Rights, Unjust Enrichment, and the Student-Athlete

Abstract

The NCAA, conferences and universities license to networks the right to broadcast their live games in exchange for billions of dollars in annual rights fees without anyone questioning either the origin of this right or who constitutes all of the holders of this right. Historically courts recognized a quasi-property right of professional teams to sell the right to broadcast their games; however, team owners put personal funds at risk and are entitled to full ownership of the copyright to the broadcast under the work made for hire doctrine as they pay the players a proportionate share of the rights fees. The putative quasi-property right of NCAA member institutions has gone unchallenged despite the fact that they are tax exempt public institutions lacking the same economic investment and incentive, the rights fees continue to climb at astronomical rates while the grant-in-aid remains stagnant, and the work made for hire doctrine does not protect the entitlement because the players are not employees. Viewed within the construct of common law unjust enrichment which is premised on the idea of distributive justice, this Article argues that universities obtain an unjust benefit at student-athletes’ expense by retaining for themselves the portion of the increasing rights fees that would normally and equitably be paid to the players for their substantial contribution in creating the broadcast. The ill-gotten gains, which do nothing to preserve amateurism, can be disgorged in a fair manner that preserves the amateur sports model.

Keywords: broadcast rights, college sports, unjust enrichment, copyright, work made for hire