Onetime college athletes seemed to have gotten a big win over broadcast networks and video game makers last year when a federal judge in California ruled that the NCAA could not keep athletes from licensing their own names and images. But a different legal play hasn’t scored in similar fashion with a federal court in Memphis.
There, a group of Tennessee athletes argued that they had publicity rights under common law and should be compensated for playing in televised games. Wrong call, said U.S. District Court Judge Kevin Sharp, who ruled that the players failed to present any valid theories about their publicity rights under Tennessee common law. State law prohibits use of a person’s name or likeness for advertising purposes but allows their use for sports broadcasting.
The athletes had brought both state and federal claims but the broadcasting defendants, including ESPN, ABC, CBS, and NBC, were granted their motion to dismiss. With the stakes so high, it’s worth a little play-by-play in the running contest among jocks, broadcasters, and video game makers.
In California, past and former NCAA athletes, video game makers and broadcasters have hotly contested control of jocks’ likeness as detailed in a case involving a former UCLA basketball star, O’Bannon v. the NCAA and Electronic Arts. The athletes won their case in a federal district court but the case is on appeal to the U.S. Ninth Circuit Court of Appeals, where arguments already have been heard and can be seen here. The California holding acknowledged the athlete’s rights. But the court said those rights still could be limited by the NCAA, for example, with payments to jocks capped at $5,000 annually, with sums put in trust until competitors graduated or left school. The NCAA also, the court said, could prohibit student-athletes from commercial endorsement deals.
The Tennessee dismissal of this latest claim by athletes–in which the NCAA was not a party–confirms the court’s belief that the right to publicity is a right but not a fundamental one. While noting that sports contests and related paraphernalia (including video games and branded gear) and control of athletes’ likenesses are a big money issues, the court said it had not been asked and would not weigh in on whether NCAA players, past and former, deserved to be paid for their play. Sharp said that he found no basis in common nor Tennessee law for the athletes’ claim of a right to publicity in connection with broadcasts of games in which they played. Like California with Hollywood, Tennessee with Nashville is one of 19 states with statutes recognizing the right to publicity; 28 states recognize the right in common law.
Sharp also discussed in his ruling a notable, federal right of publicity decision, commonly covered in copyright law, classes: the Zacchini case. The court emphasized that Zacchini not only was a performer but a producer of his show, unlike in college sports, where athletes are unlikely ever to produce a game program. Sharp also sought to make a clear distinction–not granting an unlimited broadcasting right to networks is not the same as automatically granting a right of publicity to athletes whose entire “performance” is broadcast.
Until its policies are successfully and finally challenged, say in the courts, the NCAA continues to forbid athletes from getting “paid to play.” This barrier stands even as the distinctions between professional and non-professional athletes fades fast, especially with fans riveted by heightened levels of competition and athleticism and the multibillion-dollar industry sports rakes in annually. College sports now has reached such magnitude that they can dwarf concerns of players and even the schools for which they play. And it has become a major revenue source for broadcasters, including ESPN, Fox, NBC, ABC, and CBS. Today, March has become renowned now for its basketball “March Madness,” and January belongs to the football bowls, whether played and celebrated in California or in Florida. Just like Super Bowl half time commercials, these events are huge for advertisers and networks.
And in California especially, of course, the $21.5 billion American video game industry–in which many Entertainment Law practitioners have expanded their practice–has found a bonanza in sports-related products. Sports-related products make up an estimated 13 percent of all video games sold in the United States, where the video game industry, especially considering its global reach, now exceeds Hollywood, according to many estimates.