Video Game Licensing a Key Issue as Former UCLA Star Leads New Lawsuit Against NCAA

July 22, 2009 -

The sports video game business is clearly in a period of legal upheaval as yet another class-action suit involving the licensing of athletes' images has emerged.

In the latest development, former UCLA power forward Ed O'Bannon is the lead plaintiff in a federal class action suit charging that the NCAA unlawfully deprived former student athletes of compensation for the use of their likenesses in, among other things, video games, DVDs, jerseys and stock video footage.

O'Bannon led UCLA to the 1995 NCAA Championship and played for three seasons in the NBA.

Michael Hausfield, whose firm, Hausfield LLP is representing O'Bannon and other members of the plaintiff class, offers this comment in a press release issued this morning:

No one has a right to own or control another person’s image or likeness for eternity without providing fair compensation. Former student athletes should have a voice in how their own images or likenesses – once they are no longer students – are used throughout their lifetime.

In his Sports Law column for Sports Illustrated/CNN, Vermont Law School professor Michael McCann terms the stakes in the case "enormous." McCann's full column is worth a read. Here's a taste:

There are two core areas of law implicated by O'Bannon v. NCAA.

First, by requiring student-athletes to forgo their identity rights in perpetuity, the NCAA has allegedly restrained trade in violation of the Sherman Act... Student-athletes, but for their authorization of the NCAA to license their images and likenesses, would be able to negotiate their own licensing deals after leaving college...  For example, if former student-athletes could negotiate their own licensing deals, multiple video game publishers could publish games featuring ex-players. More games could enhance technological innovation and lower prices for video game consumers.

Second... the [former players argue that] NCAA has deprived them of their "right of publicity." The right of publicity refers to the property interest of a person's name or likeness, i.e. one's image, voice or even signature...

It's important to note that the O'Bannon lawsuit is directed at the NCAA, not video game publishers. In addition, it deals only with licensing issues relating to former, not current NCAA athletes. On that score, however, O'Bannon requests that a trust be established with any funds won in the case; such proceeds would benefit today's players when they are finished with their collegiate careers.

In addition to the O'Bannon case, a pair of recent class-action suits by former college football players Sam Keller and Ryan Hart target the NCAA and Electronic Arts over similar licensing issues. And, as GamePolitics reported last month, retired NFL players won a $26.5 settlement with the National Football League Players Association over their unlicensed use in EA's popular Madden series. EA was not a defendant in that case, but some militant voices among the retired players advocate pursuing the Madden publisher at some future point.

Turbulent times, indeed...


Comments

Re: Video Game Licensing a Key Issue as Former UCLA Star ...

EA's starting to pay for their monopolizing sports games.  Thems chickens coming home to roost!

 

"You know what I wish? I wish all the scum of the Earth had one throat and I had my hands about it."

"You know what I wish? I wish all the scum of the Earth had one throat and I had my hands about it."

Re: Video Game Licensing a Key Issue as Former UCLA Star ...

repost of my comment from one of the other ball game articles.

 

[quote]

This seems so simple to fix, you join with a league they are allowed to use your likeness in anything they wish , at the same time so can players as long as its not against a few rules(doing stuff that harms the NCAA reputation,ect) where a percentage(10%) of the endorsement,ect goes to the league, Whatever the current licensing fee is you double it and half of it is goes to the players who are involved in the project, just split it down to equal proportions.


 If you are a student whatever is used the profit you earn from it goes into a non interest acrewing account and will be made available the moment they either leave collage,get hurt or join the league.

This way every one gets a piece of the pie and it makes it easier to use players people like and are willing to spend 60$ a year every year on.....

[/quote]

 


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Re: Video Game Licensing a Key Issue as Former UCLA Star ...

This might not be the best lawsuit. I would imagine that these kids sign over the rights to use their likeness to the NCAA when they sign up to play. Now that license might only apply to the images of the student DURING college meaning the NCAA only has rights to images taken while that student was a student-athlete. But still, there's almost certainly some kind of clause  in the contract.

Re: Video Game Licensing a Key Issue as Former UCLA Star ...

It seems, as Professor McCann points out, that the right to use the student-player's likeness exists in perpetuity (i.e., for ever and ever and ever, Amen). And, as McCann also points out, regardless of what the student-players may have signed off on, holding these rights in perpetuity may in and of themselves be an illegal restraint of trade under the Sherman Act. Just because you may have a contract saying you can do something doesn't mean that you are legally allowed to do that thing. Not if there's some law which says you can't do that thing.

 
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NatirI'm not arguing anything about sexism and harassment in the workplace... What are you talking about?07/28/2015 - 5:04pm
Andrew EisenYes, you've linked that several times and several times I've explained why that list isn't exactly what it says it is nor is it reflective of the actual criticism.07/28/2015 - 5:04pm
Mattsworknamehttp://www.giantbomb.com/female-protagonists/3015-2287/games/07/28/2015 - 5:01pm
MattsworknameFor the record, here is a list of games with female protagnists from they year 2014, as per giant bomb.07/28/2015 - 5:01pm
Mattsworknameandrew, I think natir may have ment a differnet point. I don't think he was aruging the workplace side, I think he was aruging the diversity in the games themselves, maybe.07/28/2015 - 5:01pm
Andrew EisenAnd I'll repeat this as many times as it needs repeating: no one (except maybe some random, anonymous numb nuts on Twitter) is calling anyone a misogynist simply for disagreeing with Sarkeesian and her ilk.07/28/2015 - 5:01pm
Andrew EisenNatir - What lie? What movement? What does that snide quote have to do with anything?07/28/2015 - 5:00pm
Andrew EisenMatt - Completely disagree. Any thinking person can see that just like with gamers, the most toxic elements, while the most attention getting, are not the majority or representative of the whole.07/28/2015 - 4:59pm
Andrew EisenNatir - Harassment and sexism in the workplace is true. It's been extensively observed and documented. That doesn't mean everything is bad. But that all doesn't mean shining a light on it to try and make it even better is an undesirable move either.07/28/2015 - 4:57pm
NatirThe movement they started is based on a complete lie and that is the real problem. Most people don't realize or those that do, ignore it because of the reprisal they get for disagreeing. You disagree with them and call them out? You are misogynistic now.07/28/2015 - 4:57pm
NatirHere is a good quote from the wordpress site: "Zoe Quinn with her little twine game commands the attention to be in documentaries, to be quoted on Kotaku, as Anita Sarkeesian is claimed to be one of the 100 most influential people in the world."07/28/2015 - 4:55pm
MattsworknameAndrew: its very true what you say, but with Feminism, the toxic fringe has become the main stream face of the movment, to the point where the US rep to the un on womens issues has called feminism a toxic word.07/28/2015 - 4:55pm
Natirdirectly related to games and politics.07/28/2015 - 4:53pm
NatirThe point is that these women do very little for the gaming industry but paint it to be a very bad place. From just constant harassment from (male) gamers to just sexism in the workplace. Stuff that just isn't true. Take a look for yourself since this is07/28/2015 - 4:53pm
Andrew EisenMatt - Every group has its jerk faces. Especially groups like feminists that are so large they encompass the vast majority of the population.07/28/2015 - 4:47pm
Andrew EisenAnd I don't get the sense many if any take anyone's thoughts at face value. They seem to be listening to what they have to say, evaluating what they heard, agreeing or disagreeing and acting accordingly. Or just outright ignoring them in the first place07/28/2015 - 4:44pm
Mattsworknametoxic to it's economy07/28/2015 - 4:42pm
MattsworknameWow, im out for a day and some cool discussion happens. On the subject brought up by Natir, I think modern feminism has be come toxic, at least in it's radicalized form ,much te same as I feel about how unions went from improtant things in the us to being07/28/2015 - 4:42pm
Andrew EisenI don't know about anyone else but I'm not comfortable forming an opinion let alone drawing a conclusion without having seen even one of the allegedly harassing tweets.07/28/2015 - 4:41pm
NatirI just find it baffling that the gaming industry as a general whole take what those women say at face value... On the Canadian man story, I don't think he will be charged but I think the women will be charged with something.07/28/2015 - 4:30pm
 

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