Student Athletes and Rights of Publicity: Ed O-Bannon v. NCAA

By Michelle Zylstra
(the following is an excerpt from a term paper (download)
Ms. Zylstra is a student in my BLAW class at Loyola Marymount University.  She has graciously given permission for this blog post and link to her paper.

Should athletes whose playing days are far behind them be compensated when the NCAA licenses their likeness and image for commercial use?  Should those same athletes be able to negotiate their own deals with TV networks and video game makers who want to use  those same images and likenesses?

Ed O’Bannon thinks so.

On July 21, 2009, O’Bannon, a former UCLA basketball star, filed a class action complaint against the National Collegiate Athletic Association (“NCAA”) seeking remedy for the NCAA’s use of former student-athletes likeness and image.  The class action lawsuit was filed on behalf of O’Bannon himself, former student-athletes who competed in Men’s Basketball and Football at NCAA Division 1 institutions (“Damages Class”), and current student-athletes competing in Men’s Basketball and Football at NCAA Division 1 institutions (“Declaratory and Injunctive Relief Class”).  In the complaint, O’Bannon contends that the NCAA has violated his Right of Privacy, as well as the Right of Publicity of the Classes by licensing their likeness and image, without permission and for profit, and that the NCAA has not shared that revenue with the Classes. (Edward C. O'Bannon v. National Collegaite Athletics Association, 2009).

The NCAA asserts that they have the right to license said likeness and image of O’Bannon and the Classes because (NCAA Manual) (NCAA Manual) (NCAA Manual) they signed “Form 08-3a” in which student-athletes authorize the NCAA to use their “name or picture to generally promote NCAA championships or other NCAA events, activities or programs” (Addendum A)

O’Bannon counters saying “Form 08-3a” is illegal because it is vague and ambiguous, was signed by student-athletes without representation, and was coerced from student-athletes in exchange for their eligibility to practice and compete in their sport.

For more on this, download the paper (10 pages plus exhibits)