Situationist contributor Michael McCann has a column on SI.com concerning a new lawsuit brought against the National Collegiate Athletic Association (“NCAA”) over whether former student-athletes should be compensated for the NCAA’s use of their images and identities in such products as DVDs and video games.
The case, O’Bannon v. NCAA, centers on forms freshmen student-athletes must sign in order to be eligible to play sports and receive their college scholarships. The forms require the student-athletes to relinquish many of their legal rights. The plaintiff claims that these student-athletes, some of whom are 17 years old, are situationally pressured into signing the forms.
We excerpt the column below.
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Should athletes whose college days are long behind them be paid when the NCAA licenses their images and likenesses? Should they be able to negotiate their own licensing deals with television networks, video game companies and various businesses that use those same images and likenesses?
According to former UCLA basketball star Ed O’Bannon and a class of thousands of other former men’s basketball and football players, the answer to both questions is yes.
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O’Bannon v. NCAA stems from a series of documents Division I student-athletes are required to sign as part of their participation in college sports. Form 08-3a (the “Student-Athlete” statement) is one such document. Among other conditions, it specifies, “You authorize the NCAA . . . to use your name or picture to generally promote NCAA championships or other NCAA events, activities or programs.” By signing the statement, student-athletes relinquish in perpetuity all future rights in the NCAA’s licensing of their images and likenesses. O’Bannon claims that student-athletes — some of whom are younger than 18 — effectively have no choice but to sign, since they would otherwise be deemed ineligible to play and would risk losing their athletic scholarships.
In the NCAA’s view, however, these documents promote the NCAA’s core mission: the integration of intercollegiate athletics into higher education and the promotion of student-athletes’ educational experiences. Along those lines, as a voluntary organization comprised primarily of colleges and universities, the NCAA tends to frown upon professional and other remunerative endeavors pursued by student-athletes.
Indeed, if student-athletes were paid salaries or received income through endorsement or licensing deals, they may begin to resemble professional athletes more than college students. The professionalization of student-athletes would frustrate the NCAA’s focus on amateurism, possibly making it more difficult for schools to comply with Title IX, a federal law that commands gender equity in sports. Professionalization could also create economic divisions among student-athletes on the basis of their commercial appeal. Student-athletes’ exposure to professional opportunities might also lead to exploitation by unsavory businesspersons, whom colleges and universities not want on their campuses or near their student bodies.
Some commentators do not find the NCAA’s concerns persuasive. Attorney Alan Milstein of Sherman, Silverstein, Kohl, Rose & Podolsky argues, “If the NCAA genuinely wanted to keep the college game pure, it wouldn’t sell any images or likenesses. Plus, compare how the NCAA treats student-athletes with how colleges and universities treat students who are professional actors or musicians — they, unlike student-athletes, can keep their earnings without jeopardizing their scholarships. It is completely unfair for student-athletes to be treated differently.”
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In assessing O’Bannon’s claims, a court will consider the extent to which student-athletes possess a real “choice” when presented with the Student-Athlete statement and similar documents. On that front, O’Bannon appears emboldened by NCAA policies on student-athletes’ access to legal counsel. According to O’Bannon, neither NCAA officials nor college athletic officials advise student-athletes that they can seek legal advice in connection with the release of future compensation rights. Particularly given the lack of “life experience” of most incoming student-athletes, such a policy may be viewed as arguably exploitative and also one that creates a disparity in bargaining power.
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