By Angela D. Bussone
Without a voice, it is difficult to obtain rights. For amateur athletes, this is not a mere philosophical quandary, but a barrier to realizing an equitable playing field.
The Sports Law Society at Florida Coastal School of Law explored this issue April 16 as part of its panel entitled “Exploitation of the Student-Athlete: Evaluating Bloom, Oliver, O’Bannon and Keller.” These cases concern the rights of student-athletes, including whether student-athletes have rights of publicity in the use of their images. Participating in the panel were moderator Michael Huyghue, commissioner of the United Football League; Richard G. Johnson, attorney and counselor of law, Cleveland, Ohio; Jon King, partner, Hausfeld LLP of San Francisco, Cal.; and Amy McCormick and Robert McCormick, professors of law, Michigan State University College of Law, East Lansing, Mich.
As a backdrop for the discussion, the panel began with the factor that student-athletes generate billions of dollars a year. Take, as an example, March Madness. According to Robert McCormick, CBS paid the NCAA $6 billion for the broadcasting rights to the March Madness games for an eleven-year period. Furthermore, he said, college basketball coaches in this arena make millions of dollars for their expertise. Additionally, video game companies score financial gains from using the likeness of amateur athletes. But the student-athletes at the center of the college basketball competition make nothing.
“Life is not as rosy for student athletes as some might assume,” said King, who is representing players in the O’Bannon/Keller case. For instance, he said, there is no unified voice for amateur players, which strengthens the divide between amateur and professional sports. The O’Bannon/Keller case concerns current and former student-athletes and their right of publicity as related to NCAA football and basketball video games made by Electronic Arts. Mainly at issue is that there is no clear explanation as to how these entities can use players’ images indefinitely. “We are trying to show that images of former players have value,” King said.
In Oliver, an amateur baseball player, who was projected to be a top ten draft pick at the time, brought a lawsuit and prevailed against the NCAA in regards to whether student-athletes should have the right to a legal adviser in contract negotiations. “When you start examining how college athletics work, it’s appalling,” Johnson said, who represented the player in Oliver. “It’s all about the money,” he said. Because most student-athletes do not receive a monetary benefit, Johnson finds an evident imbalance in the system. Emblematic of the problem is the lack of a national law to protect student athletes, especially considering players have less rights than members of the NCAA. “The NCAA sets up a system without due process,” he said. “There is no rule of procedure on what a student gets or does not get.”
Moreover, college athletes are not allowed to make money and are not eligible for the draft, Amy McCormick said. This leads to limited options for college athletes, and for many, the only option is to make use of their athletic talents outside of their home country. “There is definitely a double standard in how the law applies to players versus the so called adults in the industry,” she said.
America is a place where if one can make it, one should be able to take advantage of the opportunity, noted Robert McCormick. To place this situation in perspective, he said, consider a law school student who receives an offer to make $5 million a year. The law student is free to choose to drop out of school at any time as there is no requirement to remain in law school. But for student-athletes, regulations are prohibitive in their effort to attain their professional goals. Another problem with the current system in place for amateur athletes, McCormick said, is the NFL’s rule against draft eligibility, in which thirty-two separate entities agree to constrain trade, a violation of the Sherman Act.
“This issue is so critical,” said Richard Karcher, associate professor of law and director of the Center for Law and Sports at Coastal Law. “A law firm can decide on its own whether to hire you or not,” he said. “But if law firms get together and say ‘we are not going to hire you,’ you would have an antitrust action.” Other arguments clouding the issue pertain to a prospective increase in the cost of products for consumers if student-athletes are granted rights of publicity. “There are so many assumptions made with no empirical evidence,” said Karcher.
While the implications from the Bloom, Oliver, O’Bannon and Keller decisions will continue to be closely watched throughout the sports industry, it is the student-athlete who ultimately has the most to gain.
“When you don’t have a voice, it is very hard to get rights,” said Amy McCormick.
