Student Athletes Spar with NCAA Over Publicity Rights

Stanford (Go Cardinal!) wasn’t the only thing in Northern California upsetting the balance of the National Collegiate Athletic Association (“NCAA”) during the college football season. Since May 2009, eight putative class action lawsuits have been filed in the Northern District of California accusing the NCAA and its authorized licensing company, Collegiate Licensing Company (“CLC”), of violating either the Sherman Antitrust Act or individual student-athletes’ rights of publicity or both in the licensing of student-athletes’ likenesses to third parties. There’s also another case pending in the Eastern District of Tennessee. The name plaintiffs are all former student-athletes who were members of either NCAA Division I football teams or men’s basketball teams.

In general, the lawsuits accuse the NCAA, CLC and other co-conspirators of conspiring to restrain trade by reducing the price paid to student-athletes for the use of their likenesses to zero. The lawsuits allege that all NCAA student-athletes are required to sign “Form 09-3a” before they are allowed to compete in NCAA athletic events. A provision of “Form 09-3a” allows the NCAA to use a student-athlete’s “name or picture” to generally promote “NCAA championships, or other NCAA events, activities or programs.” The lawsuits accuse the NCAA of interpreting this form as an exclusive perpetual license under which the NCAA has the sole right to use the student-athletes’ likeness, thus preventing student-athletes from profiting from their own likenesses even after they no longer play in NCAA events.
Some of the lawsuits also accuse the NCAA and Electronic Arts, Inc. (“EA”), the video game software developer, of appropriating student-athletes’ likenesses for use in the NCAA Football, NCAA Basketball and NCAA March Madness franchises. The accusations stem from the NCAA licensing the uniforms and numbers of teams in its member conferences to EA for use in the NCAA video game franchises. EA, however, allegedly goes farther, giving the players in its video games the same statistics -- height, weight, position, hair color, skin color and accessories -- as the real-life student-athletes that share the same uniform and number. The lawsuits accuse the NCAA of approving these games and this use of the student-athletes’ likenesses in violation of NCAA regulations and the players’ rights of publicity.
Among other things, the plaintiffs are asking for treble damages, disgorgement of profits, an injunction preventing the continued use of former student-athletes’ likenesses, injunctions preventing the continued use of “Form 09-3a,” and, in the video game cases, destruction of all copies of the NCAA Basketball, NCAA Football and NCAA March Madness video games in the control of Defendants or third parties (to extent the law allows, of course. Video gamers breathe a sigh of relief.)

All of these cases are in the early stages. The NCAA, CLC and EA have filed motions to dismiss in each one, all of which are still pending. The Northern District of California cases, all of which are assigned to Judge Claudia Wilken, are scheduled for a Case Management Conference on April 27, 2010. The Tennessee case has a motion to remand pending in front of Judge Leon Jordan.

Northern District of California cases:
Keller v. Electronic Arts, Inc. 4:2009cv01967
O'Bannon v. NCAA 4:2009cv03329
Bishop v. Electronic Arts, Inc. 4:2009cv04128
Newsome v. NCAA 4:2009cv04882
Anderson v. NCAA 4:2009cv05100
Wimprine v. NCAA 4:2009cv05134
Rhodes v. NCAA 4:2009cv05378
Jacobson v. NCAA 4:2009cv05372

Eastern District of Tennessee case:
Nuckles v. NCAA 2:2009cv00235