Money on the Table: Reconsidering College Sports Video Games and Athlete Publicity Rights Post NCAA Student-Athlete Likeness Litigation

Abstract

This forthcoming article in the Mississippi Sports Law Review analyzes the impact of the monumental legal challenges to the NCAA's long-standing rules defining amateurism in intercollegiate sports and further explores options to mediate, if not optimize, the respective interests underlying amateurism, commercial opportunities, and student-athlete rights and well-being. Section II examines the federal litigation challenging the use of student-athletes' names, images, and likenesses (NILs) in videogames, telecasts, archived footage, and photos. Section III discusses the mounting student-athlete litigation which challenges amateurism beyond the grounds asserted in O'Bannon v. National Collegiate Athletic Ass'n and Keller v. Electronic Arts, as well as an apparent trend to resist expanding student-athlete rights. Section IV asserts that litigation and legislation, are not the answers to the conflict surrounding intercollegiate athletics. The uncertain legal landscape, combined with opportunities for new financial and media markets for college sports, provide conditions warranting the need for stakeholders in the college sports industry to work together. Rather than pretend to deny commercialism, either as a fact or an opportunity, or to retreat into pure amateurism, this Article proposes a model for joint partnership so that the parties can work together to optimize the academic and commercial benefits of intercollegiate athletics. This includes protection and representation of the student-athletes as partners.

Keywords: National Collegiate Athletic Association, NCAA, O'Bannon, Keller, paying players, publicity rights, amateurism, intercollegiate sports, college sports, student-athletes, student-athlete likenesses, video games