March Madness: The Likeness of Legends

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As you tune into the March Madness games, what do you think your favorite college athletics should receive for their hard work on the court, their image, and likeness? As you mull over that question, consider this case. 

In the fall of 2011, former Boston Celtic and University of San Francisco athlete, Bill Russell, who led University of San Francisco to the NCAA championship in 1955 and 1956, joined forces with former UCLA basketball star Ed O’Bannon on the behalf of other former NCAA players to sue Electronic Arts and the NCAA, as covered by Bloomberg News. 

The former college basketball stars accused the NCAA and Electronic Arts for “violating federal antitrust law by unlawfully foreclosing former Division I men’s basketball and football players from receiving any compensation related to the commercial use of their images and likeness,” stated Jon King, an attorney for the former players, to Bloomberg.[more]

O’Bannon and several other former NCAA athletes have challenged the NCAA’s right to profit from the legend’s likeness in perpetuity, without seeking consent and without compensation. This has allowed the NCAA to take classic games and images and either replay them on the Internet or sell the rebroadcast rights to television, such as ESPN Classics. In a deal involving the NCAA and Electronics Arts, Electronics Arts has generated more than $500 million in sales on NCAA college football and basketball games over the course of a six-year contract, reported by Mark Fainaru-Wada of ESPN’s Enterprise Unit.

This involved the NCAA selling the players likenesses for use in video games. The partnership between these two corporations allows consumers to buy a video game and play the college versions of legends. In particular, Russell accuses Electronic Arts, a major video game developer, of using his image for profit in a “Tournament of Legends” feature on an NCAA basketball video game. He has also complaint of at least 54 clips of him on the NCAA website, all of which he has had no compensation for nor has he given consent for use. Russell is seeking a court order to block all further sale of video and video games, as well as, disgorgement of profits from the NCAA and unspecified damages. The case is Russell v. NCAA, 11-04938, U.S. District Court, Northern District of California (Oakland).

Every year student athletes sign forms that prohibits them from receiving remuneration for their services as college athletes. Their rights are transferred over to the NCAA in perpetuity. The NCAA prohibits college athletes from authorizing their names and images for commercial use, barring them from using their images and names for financial gain. This agreement then allows NCAA to sell the likenesses of real students to video game producers for use in video games. 

Both NCAA and Electronic Arts have denied any misconduct in this case. In court filings, the video game maker has said that constitutional right to free speech under the First Amendment means it doesn’t need permission to use the players’ likenesses because the videos have enough creative elements that, as a whole, they are more than a depiction of any one athlete, according to Bloomberg. 

Majority of Division I athletics are given full athletic scholarship, yet according to the report, “The Price of Poverty in Big Time College Sport”, athletic scholarships do not cover the full cost of attending school, leaving most of them living below the poverty line. The report argues that the scholarship doesn’t cover additional food, clothes, and emergency trips home. The report claims that Division I men’s basketball players reported 39 hours a week in a season supporting the argument that playing college basketball is a full-time job. 

So what is your image really worth? According to that report, it can be worth millions if you are a top-tier college athletic. The report estimates that Duke’s basketball players are worth around $1 million. It was estimated that the Southern Conference made over a billions in 2010.  So why are athletics living under the poverty line? Majority of student athletics are not allowed to have jobs that would give them the opportunity to make extra money. They are living under the poverty line because they have signed over the rights of their image and likenesses to the NCAA. Is this violation of antitrust law or is it fundamentally unfair?

One can argue either that this is violation of antitrust law or is it fundamentally unfair. Some people believe that giving student athletics full scholarships should be enough since legally they are considered the colleges and universities property until they graduate or leave for the pros. As seen in Bill Russell’s case, many believe they should be entitled to a payout once they have gone on and have had successful careers. Like me, most people don’t believe college athletes should receive million-dollar checks while being full-time students but should however be free to seek commercial deals, such as endorsements, with a portion of the money going into a lockbox and the rest being available for immediate use. As for the legends, I believe that they are entitled to seek all payment for the use of their images and likeness. Part of the legends being who they are comes from their successful post college careers and should receive compensation for the name they have made for themselves. 

Antitrust laws are designed to prevent unfair business practices, such as restraint of trade. In my opinion, the NCAA has violated federal antitrust law by unlawfully foreclosing student athletes from receiving any compensation related to the commercial use of their images and likeness. It goes against the US antitrust laws to put restrictions on freedom to conduct business. Having the students sign waiver should be deemed as unfair. This action has prohibited student athletes from profiting from their image, brand, talents, and likeness in anyway. The NCAA has been known to conduct billion dollar deals over the success of these kids. I believe that it is only right to give these athletes ownership of their brand. 

In an Interbrand paper, “LeBrand: It is Good to be King James”, it was estimated that after joining Miami Heat, Lebron James could bring home $596 billion over the remainder of his lifetime.  Could he have been more or less successful if he had gone to college and signed forms prohibiting him from profiting from his likeness in college? 

Perhaps Celtics’ head coach Doc Rivers’ son Austin, a top-tier freshman at Duke University, knows what his image and talents are worth. On March 27, 2012, CBSSports.com reports that Austin Rivers opted to not play out his remaining 3 years at Duke and has entered the NBA draft. After one season at Duke, he will receive millions for his hard work and likeness.

— Nicole Briggs is a Trademark Consultant for Interbrand’s NY Verbal Identity team.

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