NCAA Looks Even Worse Today Regarding Misappropriated Use of Likenesses

The continued hypocrisy of the NCAA shone through today as Jay Bilas exposed on Twitter how names are linked to jerseys at the official NCAA shop. Players can’t profit off their own names but the NCAA sure does and it couldn’t have been made any clearer. Searching the names of both current and former players returned results with the jersey number they wear/wore on apparel. The search functionality on the site has now been completely disabled. 

Though much of the coverage provided here has been focused on the video game end of things the likeness suit involves merchandising and broadcast revenues which places much more money on the line and would impose dramatic change to the way the NCAA operates.

In other recent news Desmond Howard is considering entering the lawsuit as a plaintiff. His complaint has to do with being sued by a man who took the iconic photo of him in the Heisman pose in 1991. The image had appeared on Howard’s website.

“I still think it’s ridiculous that 20-some-odd years after the fact that someone can not only feel like they own the right to my likeness, but they can sue me and affect me,” Howard said.

Of course the big story as of late has been about Johnny Manziel and an ongoing investigation into accusations of having sold autographs. Should his eligibility be revoked some have wondered whether he would take legal action and join the likeness case. It’s unlikely that side would want his notoriety involved as someone fronting the movement though he could join the class later if certified.

Currently the case is moving towards a September hearing where EA will argue they should be dismissed as defendants. The NCAA has asked to be granted the same opportunity. A class action certification ruling could come later in September.

Earlier/Summary Below

The player likeness lawsuit against the NCAA, CLC, and Electronic Arts is the culmination of two high profile filings that were combined as led by Sam Keller and Ed O’Bannon (and O’Bannon now heads it up). It alleges improper use of player likeness through various forms of merchandise and media including video games in which the parties in question conspired to avoid paying players for their rights. Some interesting details and claims regarding the case at hand were revealed when EA was reentered as a defendant after initially being dismissed.

EA originally won a previous case regarding player likeness with the courts ruling video games are artistic works rather than commercial speech and therefore protected by the First Amendment. The Supreme Court in 2011 established forms of media, producing expressive works of art, are not subject to judgments based on incorporating someone’s name or likeness. That dismissed case however, involving Ryan Hart, has resurfaced after an appeals court reversed a decision based on that argument.

Recent uncovered emails have shown that NCAA representatives were well aware that players in games were based off real-life players. At one point the NCAA and EA had nearly reached an agreement to have actual player names included in the products. The EA Locker / Roster Share feature was a fallback option. With momentum clearly on the plantiffs’ side NCAA reps have begun to publicly express concern over the future of collegiate sports. A former EA Sports producer admitted players in NCAA games were based off real athletes.

The discovery of Tim Tebow’s name being in NCAA Football 10 could throw another wrench into EA’s series of arguments. Depositions from former Alabama wide receiver Tyrone Prothro and UConn basketball guard Tate George support the defendant’s reasoning for denying class action certification. The class action hearing resulted in the judge heavily questioning the legitimacy of a potential class and insisting a current athlete be involved. The judge required current athletes be added as plaintiffs for that party to have representation if the case is certified as class action. Six current college football players were added as plaintiffs in mid-July. EA is now arguing to be dismissed as a defendant in the suit. One of EA’s primary defenses was recently turned away during appeal though it could eventually be heard before the Supreme Court.

This consolidated case in California if certified as class action would go to trial – barring a settlement – and ultimately be the determining factor of how the NCAA proceeds in the future handling broadcasting rights, merchandising, and video games. Should a negative result come down, which one analyst has pegged as being a potential loss of $1 billion for EA, it would likely not just end the NCAA Football series but also with it any realistic possibility of college sports games being made in the future. The trial now is slated to begin June 2014. Appeals following a decision could extend the fight through 2020.