By Mark Henricks
Former Ohio State University football player Chris Spielman has sued his alma mater, charging that the school marketed his and other athletes’ images without their permission. The lawsuit filed in federal court in Columbus seeks certification as a class action on behalf of Spielman, who starred there from 1984 to 1987, and other past and present Ohio State football players.
Talent management company IMG is a co-defendant with the university in the 35-page anti-trust lawsuit filed in U.S. District Court for the Southern District of Ohio. Spielman is asking the court to stop Ohio State and IMG from selling likenesses of him and other current and former Buckeyes without first consulting with and compensating players. He’s also seeking monetary damages for previous uses of the player’s likenesses.
Honda and Nike are named as co-conspirators. Nike has a series of licensed vintage jerseys also depicting former Ohio State players. Honda’s corporate name is promoted on 64 banners hung throughout the university’s stadium. The banner bear photos of Spielman and other former Ohio State stars such as two-time Heisman Trophy winner Archie Griffin. Spielman’s suit says it is on behalf of himself, Griffin and other athletes depicted on the banners.
Ohio State’s athletic director, Gene Smith, responded to the lawsuit by releasing a statement indicating the school is reviewing the lawsuit. “We immensely value our relationships with all our former student-athletes,” Smith said in the statement.
Carfagna Weighs In
“This is a contract dispute,” says Peter A. Carfagna, former general counsel for IMG and currently a distinguished visiting practitioner at Case Western Reserve University School of Law. “It’s also an illegal restraint of trade suit. It’s about what is the fair consideration for the full scholarship grant.”
Athletes at Ohio State and other schools sign typically away rights to use their images and likenesses as a condition of receiving their scholarships, Carfagna notes. “What makes this case particularly interesting for those of us who practice in this area is what happens to that grant of rights after the student athlete graduates,” he says.
Spielman’s lawsuit, in essence, contends the university’s unrestricted right to use his and others’ likenesses end when he graduates. Carfagna says IMG would likely argue that the grants given by the athletes continue to be in force even after the athletes graduate.
Spielman said he supports the university’s use of his likeness to promote itself. However, he wants to be consulted and compensated when his likeness is used to promote a corporation that has paid for the privilege. Spielman himself has a longstanding arrangement with Mazda, raising an apparent conflict with the Honda campaign featuring him on posters at Ohio Stadium.
Spielman has said he will donate any financial proceeds from the lawsuit to the Ohio State athletic department. Griffin said he will donate proceeds to a nonprofit assistance fund for former Ohio State athletes.
The Spielman case may have a long road to travel. It could take years to be certified as a class action lawsuit. And, should it go to trial and be appealed to a higher court, the case could have the potential to eventually be heard by the Supreme Court, according to some commentators. The Supreme Court declined in 2016 to hear one case brought by former UCLA basketball player Ed O’Bannon, which supported former players’ right to sue for compensation after they have left college.
The current case is potentially significant because it’s the first to attempt to force universities to follow the ruling in the O’Bannon case, in which the former UCLA star sued the NCAA for selling his and other players’ likenesses to be used in video games.
The O’Bannon case, which was settled in 2014, is one of a number of lawsuits centering on the financial relationship between colleges and athletes. The NCAA and 11 conferences this year agreed to pay $208.7 million to settle a federal class-action lawsuit by ex-athletes who said the value of their scholarships was illegally capped.
Carfagna notes that Spielman and his attorney, Brian Duncan, said they attempted to negotiate with Ohio State for eight months before resorting to legal action. “It’s pretty clear they wanted to settle,” Carfagna says.
Carfagna forecasts that this case will go the way of the O’Bannon case and result in a settlement. Honda was quoted as saying in a statement that it hopes the matter “will be resolved quickly,” lending some credence to that prediction.
Carfagna also noted that many universities have similar marketing programs centered on former stars. He anticipates that more lawsuits by ex-athletes will follow Spielman’s. “I think we’re really heading toward a major settlement,” Carfagna says.
