Carrying a Good Joke Too Far?

Nov 19, 2010

By Kadence Otto, Ph. D., Associate Professor, Western Carolina University
On July 21, 2009, former UCLA basketball star Ed O’Bannon filed a class action lawsuit against the NCAA alleging antitrust violations in relation to ownership rights of former athletes’ likenesses and images (O’Bannon, Jr. v. NCAA, C 09-03329, N.D. Cal.). The O’Bannon case was combined with another class action lawsuit, the Keller case (Keller v. Electronic Arts, Inc., C 09-01967, N.D. Cal., May 5, 2009). In Keller, former college football player Sam Keller, filed suit against EA Sports (Electronic Arts, Inc.), the NCAA and CLC (Collegiate Licensing Company) alleging violations of the right of publicity.
The NCAA claims that the players sign forms releasing to the NCAA and third parties their publicity rights including for commercial purposes, in exchange for eligibility to play intercollegiate athletics and that the releases continue after the student-athlete has ceased participation in intercollegiate athletics. Thus, at the heart of both the O’Bannon and Keller claims is the enforceability of the student-athlete’s consent to use of his name, image or likeness.
In our article entitled, “Carrying a Good Joke Too Far? An Analysis of the Enforceability of Student-Athlete Consent to Use of Name & Likeness” recently published in the Journal of Legal Aspects of Sport, my co-author, Kristal Stippich, J.D., and I have addressed the enforceability of the “consent” purportedly given in one of the forms identified by the plaintiffs: Form 08-3a—Student-Athlete Statement-Division I—Part IV—Promotion of NCAA Championships, Events, Activities or Programs.
Part I of our article highlights the valuable nature of publicity rights. Part II explores four arguments under which a court could find that the student-athlete’s consent in Form 08-3a, Part IV, is unenforceable: (1) contract interpretation principles applied to adhesion contracts, by which vague and ambiguous language is construed against the drafter and in favor of the ordinary expectations of the signatory student-athlete; (2) the doctrine of unconscionability as applied to adhesion contracts in that the NCAA (a near monopoly) unjustifiably imposes a one-sided prohibition upon the student-athlete against profiting from use of his or her likeness while reserving that same right to itself; (3) duress due to the threat by the NCAA to withhold a necessary good (intercollegiate athletics) in order to obtain an advantage (commercially profit from student-athlete likenesses and images) unrelated to eligibility to play intercollegiate athletics; and, (4) undue influence due to the special relationship of trust that the NCAA has over the student-athlete.
In resolving the enforceability of any consent of the student-athlete to use of their name, likeness or image, the definition of “amateur” will ultimately need to be resolved (for details refer to the logical analysis Dr. H. R. Otto contributed at footnote 77 of our article). Surely, if the system of amateurism is essential to intercollegiate athletics, then the schools and the NCAA, not just the student-athletes, should be required to abide by amateurism principles and Part IV of the Form 08-3a cannot be enforced to permit the NCAA or third party to profit from the student-athlete’s name, likeness or image. Indeed, to enforce such an unconscionable provision would be “carrying a good joke too far” (Campbell Soup v. Wentz, 172 F. 2d at 83 (3rd Cir. 1948))!
For complete article please reference: Stippich, K. S., & Otto, K. A. (2010). Carrying a good joke too far? An analysis of the enforceability of student-athlete consent to use of name & likeness. Journal of Legal Aspects of Sport, 20(2), 151-184.


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