It’s no surprise that EA Sports settled with the Keller plaintiffs —not when appeals courts in two circuits rejected EA Sports’ first amendment defense. Video games are not per se outside first amendment protection. The problem for EA Sports, however, was that the player avatars for each college team in its game looked just like actual players on those teams, engaged digitally in the very activity—football games—in which the actual players engaged, and an app made game use of their names easy. The result: no creative transformation sufficient to trigger first amendment protection.
Where does this leave the NCAA? Formally, all it did was license its logo for use on the NCAA Football video game. Keller needs to show more than that to make the NCAA liable. This is a fact-dependent inquiry, and fact-dependent decisions typically have limited impact. The impact of a decision also will be limited because the NCAA no longer licenses its logo for use on the game. Not to mention that at the moment EA Sports is not producing it.
Keller (right of publicity theory) and O’Bannon (antitrust) also claim entitlement to revenues from NCAA sale of videos of archived games, highlight videos, photos of individual players involved in famous plays, and gear with numbers (but no names), as well as revenues from broadcasts of archived games. The likelihood of success is debatable. Nonetheless, the NCAA could lose (for settle) all these claims without much impact on its operations or on the collegiate model of college athletics. (It could certainly be argued, moreover, that NCAA relinquishment of these activities would enhance the collegiate model.) All the NCAA need do is stop marketing these products. Revenues would be reduced some. But that’s a hit the NCAA could take.
Keller and O’Bannon also claim that current players are entitled to a share of TV revenues from the games in which they play. Ah, there’s the rub.
The claim for game revenues appears grounded either on a player’s right of publicity for his appearance in a game or on some amalgam of antitrust and the right of publicity (the claim seems to be that the NCAA offends the antitrust laws by restricting the opportunity for players to profit from their right of publicity). These claims sound like losers to me. Win, or lose, however, the Keller/O’Bannon lawsuit is not a call for pay for play.
The debate rages as to whether the collegiate model is an outdated relic with no place in today’s commercialized world of college revenue sports. One side claims exploitation of college athletes, who risk lifetime physical injury in games that bring revenues then used to fund extravagances such as $5 million coach salaries. The other touts the psychic and lifetime maturation benefits of a college education, plus the monetary benefit of a full ride scholarship (and academic and medical services) and enhanced lifetime earnings potential, as adequate tradeoff to college athletes for their athletic participation. One side points to the non-revenue sports and compliance with Title IX to which football and men’s basketball revenues are directed. The other side argues that these uses should not come on the backs of these players. And on, and on.
There are four general ways that college athletes, while in college, might profit financially from their athletic talent and fame: (1) getting paid wages to compete (pay for play); (2) marketing their names and likenesses to purchasers outside the university; (3) getting a share of revenues from an NCAA (Conference/individual school) corporate partner for licensing of name or likeness (for televised games, the money would come from the broadcast partner); and (4) getting a share of revenues directly from the NCAA (Conference/individual school) for revenues from use of player names or likenesses (including from televised games). Each raises the same issue about what ultimately it portends about the nature and continuing viability of collegiate sports and the collegiate “mark.” But each also raises different discrete issues.
Pay for play is the most direct attack on the collegiate model. It transforms the student/university relationship into employee/employer. It brings in the federal labor laws, and the potential for unions and strikes. It also raises potential Title IX compliance issues. Athletes marketing their names and likenesses raise issues of booster payments to entice them to attend and stay at a school and even agent influence. TV revenues from the NCAA (Conference/individual school) raise issues of different treatment of athletes on the teams based on the position they play and their talent level as well as between athletes whose games are televised and make money and all other college athletes. These payments also may have import for Title IX compliance. TV revenues from a broadcast partner don’t trigger booster/agent issues but may raise the same issues as payments that come directly from the NCAA (or a Conference or individual school).
Upwards of 90 percent of all NCAA revenues come from the sale of broadcast and affiliated rights for the NCAA Men’s Basketball Championship. Out of these revenues the NCAA runs 89 championships over all three of its Divisions, operates the Eligibility Center, runs membership services, handles enforcement and student-athlete reinstatement, provides staff support to all member committees, funds national office staff and expenses, and distributes money to the campuses, money that helps fund their operations. Sharing a substantial portion of TV revenues would have major impact, certainly.
But the impact is much more than financial. It goes to the very nature of college sports. Sharing TV revenues is not pay for play, the real paradigm breaker. But it means money going to college athletes because of athletic competition that is neither calculated, or bound by, the cost of attending college, nor related to the overall college experience. No matter how you cut it, that moves the needle away from the collegiate model. Not a KO. But a hit that the NCAA will fight not to take.
There certainly are ways to advance the treatment of college athletes that would not move the needle. There also is precedent for a settlement along those lines. In the White case, college athletes sued for athletic scholarships to go beyond tuition, room, board, and books to cover full cost of attendance. The White settlement provided money to former football and men’s basketball players to pursue education or professional training and provided a fund for educational and related expenses for current college athletes. NCAA Division I, and certainly the FBS conferences, already are exploring ways to do more for college athletes. For ALL college athletes, not just football, men’s basketball athletes. These changes are coming without regard to the outcome of the Keller/O’Bannon lawsuit.
Jo Potuto is the Richard H. Larson Professor of Constitutional Law at the University of Nebraska and its Faculty Athletic Representative. She blogs at Potuto’s Points of Sports & Law. You can follow her on twitter —@PtsOfSports_Law.
