Ed O's suit moves along
by Herodotus on Feb 9, 2010 8:26 AM PST
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The NY Times reported this morning that Ed O'Bannon and his legal team have been granted the right to look through NCAA documents pertaining to the amount of money the organization makes from the sweat of the unpaid athletes. While Ed O appears mainly to address the notion of using his image and that of others in promotional films after they've long since graduated, the suit opens up a pretty big can of worms, including some antitrust issues.
I'm not an attorney, so I welcome comments from the many members of the Bar who frequent these posts. It's interesting that Bruins always seem to be out front when it comes to issues like these, following in the footsteps of their role models.
http://www.nytimes.com/2010/02/09/sports/ncaabasketball/09ncaa.html?ref=sports
(Hope the link works. I'm an amateur at this.)
This is a FanPost and does not necessarily reflect the views of BruinsNation's (BN) editors. It does reflect the views of this particular fan though, which is as important as the views of BN's editors.
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Good luck Ed
its one thing to play for a team, but the NCAA taking your image rights and profiting from them for the rest of your life is just plain unfair and wrong.
I agree to an extent... but if the court imposes retroactive liability on the NCAA, it could lead to the bankruptcy of athletic departments around the nation. This would mean either a) far fewer sports or b) far less money spent on education.
Or, perhaps more likely, both.
I doubt it'll be retroactive
exactly because of what you said. And if anything, it’s EA who should be compensating the athletes. The schools can argue that they were compensated for the use of their names and that they never knowingly allowed or agreed to the use of their athletes’ likeness.
But what do I know. I’m just a caveman. I fell on some ice and was later thawed by some of your scientists. Your world frightens and confuses me! Sometimes when I fly to Europe on the Concorde, I wonder, am I inside some sort of giant bird? Am I gonna be digested? I don’t know, because I’m a caveman, and that’s the way I think! When I’m courtside at a UCLA game, I wonder if the ball is some sort of food they’re fighting over. When I see my image on the security camera at the country club, I wonder, are they stealing my soul? I get so upset, I hop out of my Range Rover, and run across the fairway to to the clubhouse, where I get Carlos to make me one of those martinis he’s so famous for, to soothe my primitive caveman brain…but I do know that when a video game company uses the likeness of an amateur athlete, that athlete needs to be compensated.
But hey, what do I know. I’m just the 800 lbs bruin in the room.
It goes great!
Thanks for asking! She’s really a good baby, only wakes up once or twice at night but goes right back to sleep. Compared to other parents’ stories that I have heard, we are pretty lucky. Though sometimes, I feel like putting up a post here at 3 or 4 am just to say that I did. How are things on your end?
But hey, what do I know. I’m just the 800 lbs bruin in the room.
It's 2:37 a.m.
and I’m posting…
Only waking once or twice a night (for a young baby) is definitely good. Ours has generally been good with the sleeping thing (she’s 20 months old now), but every so often (like 10 minutes ago), she will let out a primal scream and go back to sleep. The scream is enough to wake me and so here I am, catching up on all things Bruin.
Glad to hear your baby is doing well. For all of the sleepless or sleep-deprived nights, it’s a small price to pay for the gifts of parenthood, I’m sure you would agree.
On a related note, ours has outgrown all of the UCLA gear I purchased when she was born, including a cute cheerleading outfit. I’m going to assume you’ve similarly outfitted (or tried to outfit) your girl in Bruin themed clothes…I, myself, just can’t resist buying the stuff.
You'll be able to get some sleep soon.
Then she’ll be a teenager, and your current non-sleep cycle will return.
Nice!
I never got around to the cheerleading outfit, but she has some Bruin gear that she sports once in a while.
But hey, what do I know. I’m just the 800 lbs bruin in the room.
Mine is now 6 and has outgrown the cheerleader uni
Doubt if she’d miss it if you’d like me to pass it along.
Well they certainly thawed _something_ out from cold storage
…if you’re flying on the Concorde :P
I want it back!
by b d on Feb 9, 2010 2:44 PM PST up reply actions
Very interesting case
What this means is that Ed O got past the motion to dismiss phase in that he plead enough facts to have a claim. The NCAA will still move for summary judgment before this case gets to trial, but it does mean that discovery will begin in earnest now.
I am definitely not a fan of the NCAA and am rooting for the former athletes in this case, but I don’t know what will really occur. From what I understand, they aren’t representing current players and there is no effort to seek payment for current athletes. The reason for this is presumably that the NCAA would easily defeat that argument by saying the athletes exchange the exploitation of their likeness in return for their scholarship.
Ed O is simply seeking compensation for subsequent exploitation after a player is no longer playing in the NCAA. In entertainment law grants, there is often an “all future media devised” provision that extends exploitation to anything later developed (such as DVDs for 1980s movies). I doubt there is anything like this in any NCAA scholarship contracts. The NCAA will try and say that it should be implied and that the athletes waived all their rights when they accepted their scholarship.
The bigger issue for Ed O is that the effect of his lawsuit could potentially destroy college sports as we know it. If CBS or ESPN has to pay out money when they show highlights from previous seasons, you can bet they will stop doing it. With regards to video games, the NCAA thought it avoided this issue by not having players names in the games. But when you can change the players names easily to fix this, it seems like a shallow argument. The reason Madden become the dominant NFL game was because the NFL players association granted the right to use its players names in the game. NCAA athletes don’t have a union (although Shane Battier and Mark Madsen tried to do this) so there is no way a video game company can make a deal with them regardless of the “amateurism” issue.
That's the "slippery slope" argument, Poncho, and it usually doesn't work
It’s often used, but it rarely works. Lawyers for one side summon up a parade of horribles to show what would happen if the Court adopted the rule that the other side wants. It’s generally a strawman to cause the Court to look at issues that aren’t really part of the case of this particular plaintiff against this particular defendant. It was used by the losing side in Brown v. Merlo, which did away with the “guest statute” (a guest-passenger couldn’t sue a host-driver in a car-crash). It was used by the losing side in Rodriguez v. Bethlehem Steel, which allowed loss of consortium to the spouse of an injured plaintiff. It was used by the losing side in Li v. Yellow Cab, which did away with the defense of contributory negligence. The only time I know that it worked was in a case called Moradi-Shalal, which did away with the idea that third-party plaintiffs could sue the other party’s insurance company for bad faith failure to settle the claim on behalf of the insured. No third party bad faith was the law until Royal Globe. The losing side in Royal Globe talked about all the bad things that would happen, but the Supremes poo-pooed that notion. Then in Moradi-Shalal the Supremes said, "You know, the lawyers in Royal Globe were right, and we’re now going to do away with third party bad faith cases.
In my opinion, the focus of attention should be on what the defendants did, and whether the defendants violated a statutory or common law right held by the plaintiffs. I’m a defense attorney, so I’m one of the guys who paraded the horribles and talked about the slippery slope. In this case, however, there is a company making a fortune using the names and likeness of people who were not compensated. That’s a tort. There was absolutely nothing that would have prevented EA from using some other likeness. Wii, for example, has sports games, but doesn’t use recognizeable likenesses, as far as I know. They use little guys who look like Fisher-Price characters and like their own Mario characters. In my opinion, EA saw an opportunity to make more money by using recognizeable college sports heroes, and did so. There is probably not one guy at EA sports who ever made a competitive basket in his life, but he’s making a fortune using Ed O’Bannon’s likeness. He can continue to do so, but he should pay Ed for giving him that extra pay.
And the slippery slope? Well, life as we know it has continued with no guest statute, The business community and its insurers have not gone out of business because the spouses of injured people can sue for loss of consortium. And todays lawyers look at contributory negligence as some sort of historical goofiness that they find inexplicable in light of the inherent goodness of contributory negligence as a defense. I suspect that sports as we know it will not disappear if EA sports has to pay athletes.
(Also re retroactivity – there is a lot of law on whether things are retroactive or not. Generally, decisional law is forward looking only, and the issue comes up mostly in cases that are pending when the new decision is announced. I am NOT an expert on the retroactivity issue.)
Good points Fox
You did a great job explaining away the slippery slope argument. I think that will be more of the public relations spin than the actual legal arguments for the NCAA and EA.
If this were any other sports game, there would be no doubt the players should be compensated for their likenesses. The problem with this is that the NCAA is involved and they will play their trump card: amateurism. Courts are extremely deferential to the determinations of a private organization like the NCAA and if the NCAA can make a plausible argument that athletes receiving pay after they graduate for the use of their likenesses in video games would defeat the amateurism that they market, they probably will win.
Again, the real problem is the NCAA hypocrisy of making millions of dollars off of its “amateur” athletes. Having the power to say you are doing what you are doing (such as not having the players names on a video game) in order to protect amateurism and a court is willing to defer to that, it is an up hill battle for anyone challenging the NCAA.
In my mind, the likely result will be for college sports games to only include current rosters and made up future players with no retro/throwback teams. If they did this, it seems like the legal problem would be solved.
It would be nice to know how EA is defending this
They have a contract with the ncaa which says they can use the names and likenesses of someone else? That sounds thin, and obviously it wasn’t good enough (or whatever argument they used wasn’t good enough) to get the case bounced at the pleading stage.
If I were the pltf’s lawyer, I thing I would focus on EA, and leave the ncaa alone. Although the ncaa is a dinosaur in terms of its collective speed and reasoning abilities, it is undoubtedly smart enough to hire good lawyers, which means lawyers which will leave no stone unturned (and no possible task unbilled), and they will try to erode the other side.
Couldn't find today's ruling
But I did find a motion for a transfer of venue back in December. The NCAA is the named defendant and EA Sports is a non-party. Here is the basis for Ed’s complaint.
In brief, Plaintiff asserts that, while he was a student athlete at UCLA, he competed pursuant to NCAA rules and regulations, which require student athletes to sign NCAA Form 08-3a as a prerequisite to their participation in intercollegiate competition. Plaintiff maintains that Form 08-3a and associated NCAA rules constitute anti-competitive conduct because they prevent him from licensing his own image and likeness. He alleges that the NCAA’s and CLC’s anti-competitive practices are facilitated by non-defendant conspirators, including Electronic Arts, Inc. (EA), a video-game software company based in Burlingame, California.
Plaintiff alleges violations of § 1 of the Sherman Act. He intends to move to certify this case as a class action. This case is related to Keller v. Electronic Arts, Inc., et al., Case No. 09-1967, which involves allegations that the NCAA, CLC and EA violate former student athletes’ rights of publicity by using their likenesses without consent in various EA video game franchises.
O’Bannon v. NCAA, No. C 09-3329 CW, 2009 WL 4899217, (N.D.Cal., Dec. 11 2009).
Judge Wilken summarily rejected the NCAA’s request to move the hearing to Indiana in that decision. With yesterday’s ruling, it definitely seems that she is skeptical of the NCAA.
I'm surprised
I would have thought that EA was the choice of targets. But I suspect the lawyers who are actually looking at the facts and the law are doing it the right way.
I rooted for O’Bannon as a player, and I’m rooting for him as a litigant, too.
I've always thought it strange how the NCAA "owns" players well past their playing days
First, the NCAA profits from their playing days and then profits from their image in video games? I wouldn’t have a problem with the NCAA profiting off recording of games they played in as collegiate athletes. But to sell their names/images years after they’ve left the scene? Wish I knew more about case law but have enjoyed Fox’s & Poncho’s posts on the matter.
I wrote a couple of long posts about wrongful use of likenesses involving the model on the cover of Taster's Choice coffee.
If you search (I think it was the middle of 2009 or thereabouts), you might find them. I think the name of the case is Christoff v. Nestle, so you could search that, too. Anyway, the plaintiff got an enormous amount of money (something like $30 million) from the jury. It went to the California Supreme Court which reversed, but the issue was all about the single publication rule. I’m vaguely aware of that, but am no expert – I’m sure that some of our other lawyers here can explain it.
The point, though, is that there is a LOT of money at stake. I would not at all be surprised to see an enormous award (who wouldn’t want to give the money to the guy who earned it rather than allow the stooges at the ncaa to continue to make millions for doing nothing but looking the other way when certain schools just laugh at the rules.
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