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…