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O’Bannon v. NCAA: Intellectual Property, Antitrust, & College Sports [POLICYbrief]


I was, uh, at a friend’s house and saw my
likeness on a video game that his kid was playing. I initially thought it was pretty cool and
was flattered, quite honestly. But then it was brought to my attention that
they had paid for that video game and I didn’t get any type of compensation or even, uh,
permission to use my likeness on that video game. It was his height, his race, his skillset,
his jersey number, everything but his name. He raised this question of how is it possible
that years and years and years after I, I played that the NCAA can continue to earn
revenue off of my names, images and likeness, and, and not even consult me on that? He saw himself in this video game and he realized,
“This is very odd. Here’s a video game that makes millions of
dollars, in part because it does a good job of mimicking your favorite college sports
stars. Nobody ever asked me. Nobody ever paid me for it. Um, because, when I became an NCAA athlete,
I signed away all my rights to my image and control.” So Ed O’Bannon sued in order to regain the
rights and compensation from that. And that morphed into a more general suit. The NCAA’s original purpose at the time of
its founding was to respond to violence in football and to make the game safer and to
protect the health and safety of athletes, primarily football players. Today on the NCAA’s website, there are three
priorities that they list: academics, well-being, and fairness. And yet, when they get into court battles,
they tend to argue that they actually don’t have a duty to do that. The case began with two sets of issues. One was an antitrust claim, that schools and
the NCAA join hands in an anti-competitive conspiracy to limit the value of college athletes’
name, image, and likeness to zero dollars. The other prong of the case was an intellectual
property prong, and specifically the right of publicity, the idea that all of us have
a certain right, intrinsic right, in our identity, whether it’s our name, whether it’s our likeness,
whether it’s our image, whether it’s our voice, whether it’s our uncommon expressions, things
like that, that there’s value in everything that makes us who we are. And the argument was that the NCAA has profited
from individuals’ values in ways that were unlawful. The main focus initially was to spark conversation
and really, uh, get people to talk about what we felt college basketball, the conversation
that we felt that fans and administration should be having. And that is not only do you control your likeness
as a college athlete, but do you get paid while you’re in school while bringing in millions
and up to billions of dollars for these universities? In O’Bannon the argument was you’re ultimately
competing businesses. And a rule that sets at zero the value of
name, image, and likeness isn’t compatible with any precedent. Nowhere else in the US do we say we can use
your name, image, and likeness and not pay you anything. The intellectual property issues were resolved
in a settlement. The antitrust issues remained and, and went
to trial. And Ed O’Bannon won the trial. This was the first major antitrust decision
against the NCAA. Ed O’Bannon has come to symbolize a more general
set of legal questions about whether or not athletes should be paid both for their likeness
and images, which is the core of his case, but also it has, even if it’s not the heart
of his case, it’s come to symbolize the bigger question of whether or not athletes should
be compensated for playing. Colleges join hands through the NCAA, and
through the NCAA they create rules that are, the colleges would argue are designed to ensure
that there’s fairness, are designed to ensure their college athletes are amateurs and not
professionals. But in doing so, they create rules that many
would argue are anti-competitive. One of the reasons college athletes can’t
even have jobs during the school year is because there were so many empty jobs that were being
offered by boosters that we’ve had to put a stop on it. The fact that we can’t control certain people
from corrupting the system from the outside means that we have over-inclusive laws just
to stop the system from becoming a free market. The core of the antitrust rules is that unlike
Google versus Microsoft, if we want teams to be competitive, we have to allow them to
collude and restrict their ability to just act as free market actors. So you get special protections because the
very nature of the enterprise is such that you would be destroying it if you allowed
the free market to take over. The was the first major antitrust decision
against the NCAA. The NCAA for years has felt confident that
it could win under antitrust law. And this case showed the NCAA no, you lost. The court actually said the NCAA doesn’t have
to pay athletes, they’re not true employees, um, but ended up deciding that the individual
leagues could expand their compensation for athletes, uh, to take into account certain
things, most particularly the true cost of attending. The lawsuit put pressure on the NCAA. And the NCAA, many would say because of the
lawsuit, allowed colleges to give the, what’s called the full cost of attendance. And the full cost of attendance is a figure
that’s determined by the federal government. It reflects cost of living and other aspects
that, for years, colleges weren’t able to give student athletes. Now they can. We should stay focused on making sure that
student athletes get an education. As we professionalize sports, it becomes more
and more divorced from the academic project, right? That these young people are less and less
like students. And my concern is those who bemoan the way
in which college athletics exploits young people, in particular young men of color,
asking for them to be paid is not to reverse that trend. Athletic scholarships are not free. If you’re working 60 hours a week in your
sport, that is not a free education. For many, many years the NCAA argued, and
continues to argue, that college athletes are just like every other student on campus. And that’s simply not true. They’re, they’re not recruited in the same
ways. They are not retained in the same ways. They may not be able to pursue the degree
that they wanted to pursue as a result of that athletic scholarship. Times have changed. Uh, the, the game has changed. The amount of money that is made has changed
throughout the years. The only thing that hasn’t changed is the
fact that these athletes, uh, receive a portion of the … Some of them would like to see
the athletes receive something, other than just the scholarship.

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