NCAA Loses Ed O'Bannon Video Game Case, Judge and Public Agree Athletes Should Be Paid When Their Likenesses Are Used

Ruling is latest in string of lawsuits against the organization


Though it can still ding schools for feeding players too much pasta, the NCAA must now compensate student-athletes when their images or likenesses are used to sell merchandise. 

So says a federal court ruling issued Friday in the anti-trust lawsuit brought against the NCAA by former UCLA basketball player Ed O'Bannon. 

The Kansas City Star reports:

A federal judge ruled for student-athletes and against the NCAA on Friday, opening the door for some college players to share in licensing revenue after their careers are over. The ruling by U.S. District judge Claudia Wilken in the Ed O'Bannon lawsuit allows for trust funds to be established for major college football and men's basketball players, who can cash in, after their eligibility expires, on a portion of the proceeds generated by the use of their images and likenesses.

It appears that public opinion matches the judge's decision. In March, the Reason-Rupe poll asked 1,003 Americans

When a college or company sells a jersey with a college football or basketball player's number on it, or sells a video game with a player's likeness in it, do you think that player should receive some of the money from the sale of his likeness or jersey, or should that not be allowed?

Should be allowed………………………….. 64%

Should not be allowed…………………….. 32%

Don't Know……………………………………… 4%

Refused………………………………………….. 1%

USA Today's Nina Mandell notes how attitudes about the NCAA are changing, "Through the trial, Ed O'Bannon and his fellow plaintiffs became heroes who took on an organization that many felt had treated them unfairly. In a matter of only a few years, the narrative swung from athletes being thought of as spoiled jocks to a group of kids who were being unfairly taken advantage of."

The ruling is the latest decision in a string of lawsuits pending against the NCAA and threatens to weaken the institutional power of the collegiate athletic organization. 

In late July, the NCAA agreed to earmark $75 million toward concussion research as part of a settlement in a class-action lawsuit filed by former football players who felt that the association mismanaged head injuries.  

And in March, the Chicago regional office of the National Labor Relations Board ruled that football players at Northwestern University had the right to unionize. 

Nationwide telephone poll conducted March 26-30, 2014 interviewed 1,003 adults on both mobile (503) and landline (500) phones, with a margin of error +/- 3.6%. Princeton Survey Research Associates International executed the nationwide Reason-Rupe survey. Columns may not add up to 100% due to rounding. Sign up for notifications of new releases of the Reason-Rupe poll here.

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  1. …”a group of kids who were being unfairly taken advantage of.”

    Yeah, the colleges really have to stop forcing these kids to…

    1. The NBA doesn’t let you go straight from high school to the NBA any longer; you have to be out of school for a year.

      In the case of the NFL, you have to be out of high school for three years.

      1. Right, but they’re still voluntarily choosing to pursue sports as a career. The rules are the rules.

        1. Bottom line, It is like playing the lottery.

  2. This thread could get ugly.

    1. I don’t kniw. Is there anyone outside of the NCAA organization whoe does not think it’s run by sheep fuckers?

      1. I have changed my mind on this ruling twice already this AM. My first thought was, good, of course they should get paid IAW the free market, but then I took it a level deeper and determined the NCAA is a private organization that can demand anything it chooses from its voluntary members.

        1. It also touches on monopolies, intellectual property, price fixing…

        2. Their being a private organization doesn’t preclude us from thinking they are sheep fuckers right?

          1. Nope. Sheep fuckers they are. I’ve always thought amature status is bullshit.

            And…Penn State.

        3. It’s not obvious the NCAA is a private organization given that iirc most of its members are public institutions

          1. Those public institutions voluntarily choose to participate. There is no force used, right?

            If they wanted, anyone could form a new league/association and schools would be free to choose. Provided the NCAA isn’t somehow preventing the formation of competition.

            1. Public participation throws a can of worms into the situation.

              Imagine that government decided to get into the pharmacy business, and government pharmacies joined with a few private ones to form a large association of cooperating and interrelated pharmacists. If you are a private pharmacist trying to compete you find that you are compelled to support your own competition via the taxes you have to pay! The market becomes considerably distorted

              1. A good argument for no public funding of schools, but participation by a government funded school in a private association doesn’t equate to government control of the association.

                The NCAA has no power to compel. It’s not government.

                1. Government can coerce indirectly with funding like SCOTUS found in the recent Medicare expansion ruling (the exctraction of the funding in the first place is, of course, directly coercive).

            2. “If they wanted, anyone could form a new league/association and schools would be free to choose.”

              I think that is going to happen with he major conferences.

          2. I agree that the distinction is blurry for the NCAA, but I’m not sure how that matters in this case.

            Are public institutions barred from making certain contract stipulations regarding payment of employees?

        4. The NCAA is about as private an organization as Freddie Mac.

            1. I would but it’s a beautiful day and I don’t want to give myself a headache. You can just put me down as not a fan of a “private organization” composed in part of state funded entities and others funded by massive amounts of federal loan dollars.

        5. I believe even gully dwarves can differentiate between “one” and “two”.

    2. Why are you hating on reason for dredging up an old Resaon-Rupe poll?

        1. That was supposed to be sarcasm, coming up with an unexpected reason why people would get testy in the comments. After all, everybody hates that H&R posts 5843286508476087653089 threads about each new Reason-Rupe poll, right? šŸ™‚

          1. Sorry. I was up late last night and am a little tired.

            1. Hookers and blow?

              1. I thought blow was a stimulant and would keep him up. šŸ˜‰

              2. Actually, I was on the phone arguing libertarian principles with my best friend till 3:30 AM. Alcohol was involved.

                (I need to get a life)

                1. I have a friend I’ve been arguing politics with, over booze, for years.
                  He started out as a typical east coast Dem. voter, and now he hates cops, Public Ed and unions, and thinks prostitution, drugs and gambling should be decriminalized.

  3. “threatens to weaken the institutional power of the collegiate athletic organization.”

    I’m currently playing Hearts and Flowers on the worlds smallest violin.

  4. the narrative swung from athletes being thought of as spoiled jocks to a group of kids who were being unfairly taken advantage of

    Why can’t it be both?

  5. I hate the NCAA for pretending that not paying players is some noble thing to do.

    …But, unless kids are forced to sign these contracts, I don’t think there’s a legitimate reason for the state to intervene.

    1. Are there contracts involved that assign their personality rights to the NCAA, or does the NCAA and the game makers just use (appropriate) them?

      1. I might be wrong, but I thought the NCAA maintained the sole right to license their likenesses for video games. I think this is made explicit in the contract, but I could be wrong.

        1. If there’s a contract and they signed it then it’s hard to say the players are in the right.

          I think in the NFL the players union secured these rights for players as part of the collective bargaining contract, so one can see why some college players might want to be able to unionize

      2. Does anyone have the right to say you can’t use my image for X? Provided you do not claim I endorse X, it’s simply light captured on paper.

        There are a LOT of ethical questions wrapped up in this ruling.

        1. Do you mean as a matter of law? The answer is yes I think most states have causes of action for publicity or personality rights. Whether the laws are correct is of course a different question. Is it that different than defamation laws which protect your reputation?

          1. No, not as a matter of law. I’m aware the law says yes. Just not sure that law is morally sound.

            Images exist. I can see them without someone else’s permission. If I perceive a market for the image of someone else, I’m not sure how he is wronged if I make money using a free image.

            Are newspapers required to pay a royalty for making money from the images they place on their front pages?

            1. It’s a good point re newspapers, a common one made against these laws. I think legally the old (and problematic) commercial speech v press speech makes some news use exempt on 1st amendment grounds, but even there SCOTUS has found limits (see Zacchini v. Scripps-Howard Broadcasting Co.)

  6. I have trouble caring about either side in this. The kids who are looking a getting money are already getting an opportunity for a free education that most people are going seriously in the hole for. They’re also looking at an opportunity to play pro, where base salaries are high six figures or more. The NCAA, on the other hand, fucks sheep.

    Setting aside more monies for injuries and concussion research are about the only thing I could find any positive in this.

    1. but they really are not getting a free education. They are made to play a sport at a level which requires pretty much 365 days a year of work. Every look at the majors these kids have to take to deal with all the sport work they need to do to keep their scholarship?

      1. Their level of preparation coming in to college may have more to do with the types of things they major in. And that is a problem for lots of college students.

        Although it is not the norm, there are players who excel in the classroom and on the field.

      2. “They are made to play a sport at a level which requires pretty much 365 days a year of work”

        Yes, I’ve seen the ‘keepers’ following them around with guns.

        1. Pretty sure he meant ‘required’ in the sense ‘need for a particular purpose’ or ‘to play at that level they are required to put in that amount of work’ not in the sense ‘they are forced to.’

          1. Get lost, Bo.

      3. Bill Walton was an academic All-American and later got his law degree from Stanford.

        A lot of poor kids go to college and work 20-30 hours a week and have difficult majors and no paid tutors like football and basketball athletes in Division 1.

        The NCAA limits the number of hours of organized practice they can have and they have 5 years on campus with their 4 years of eligibility.

  7. I’d be interested to know if their contracts had clauses for the use of their likenesses in the video games. My kids won’t play a damn thing for colleges if they’re signing their likeness away.

    1. If there is, and kids have just been ignoring that clause in the hurry to sign the contract, I can’t help but think they’re idiots.

      If I was a 5 star high school athlete, you can bet I would hold out. That EA Sports money is vast.

      1. Oops. I forgot that the NCAA bans players from hiring agents during their college years.

        If I was a college athlete, I would be more upset about the lack of representation allowed.

      2. Although I’ve heard of stories where colleges woo some prospects, given the ready supply of 5 star high school athletes I don’t think you’d have much leverage.

        1. Like I said. If the NCAA allowed for agent representation, a number of 5 star athletes could band together to get something accomplished.

          Still. I would rather have the assurance of the video game money than gamble on getting drafted.

  8. Q) How many college athletes does it take to screw in a light bulb?

    A) One. But he gets three credits for it.

  9. Wow, Johnny Football was a few years too early.

    If this ruling is made it will be a bad one for several reasons.

    1. Football is a team sport yet the most favorite players are usually the ones who touch the ball. Should a running back get paid more when his jersey outsells the guys who block for him and make his runs possible ?

    2. This opens a can of worms in recruting. “OK highschool football player. We know every major program wants you. We promise to market your likeness more than everyone but the QB and 10% more than that other program that wants you. What ? They said the same thing ? Well ok, well promise you 20% more marketing efforts on your behalf. Sign here”.

    3. What keeps almus from promising to recruits or current players to purchase large amounts of their jerseys to obtain commitment letters or to reward a player during his career.

    I went to Texas A&M. I stayed in College Station after school. I worked for a wealthy big time booster of the football program. What follows is a true story.

    1. There once was a super star highschool running back named Billy Simms. He was, of course heavily recruited out of highschool by several major colleges. The bidding war was on. Oklahoma won for 30k in a paper sack. Everyone else was furious. They were furious, not because Oklahoma paid him, but because they felt they paid too much and repset the market. According to my now deceased employeer A&M had 20k in their sack ready to go and so did several other schools. They were simply pissed because oklahoma had now set the market for blue chip running backs to 30k rather than the old gentleman’s agreed upon 20k. The cost of being a college jock sniffer and getting inside info before placing one’s bets had risen.

      Here’s a tip for those who would like to be a winning bettor on college football. Get in good, really good, with someone who donates large sums to a college fotball program.

    2. 1) Some NFL players are paid more than others, and it seems to function well.

      2) Schools already compete on things like training facilities, promises of playing time, etc., as you seem well aware of. Competing on the strength of their marketing departments isn’t that much different.

      3) I can see the NCAA passing a difficult-to-enforce rule aimed at preventing such situations. But in a world where boosters can already slip players money, booze, and women, I don’t see increased jersey sales qualitatively changing the situation.

      Ultimately, rulings like this will move college football more towards a semi-pro model than it already is. I’m not actually for that. As a fan, I like college more than the NFL. But the direct fallout of letting kids profit off their image doesn’t seem that transformational to me. It is, however, a sign of other changes that are coming down the pipeline. And the cumulative effect could change things.

      1. I am not against college players being paid. I played football at an NAIA Division school before going to A&M.

        I don’t think that amature players getting paid for their jersey/likeness sales is the same as being a pro on a contract. How many jerseys of offensive guards do you see kids wearing ? That’s where I see the difference. If we are going to pay college palyers we should pay them all the same.

        A&M left the Big 12 partially because UT got their own TV channel. How would you like to recruit against a school that had it’s own TV channel ?

        “Son, if you come to UT we will make you a TV Football Star. If you go to A&M no one will ever know your name. Plus, you will make more money because little kids will see you on TV and buy your jersey”.

        If they pool the jersey/likeness $ and distribute it equally I’m OK with it.

        College football doesn’t have to pass a Friedman Chicago Boys purity test for me to be OK with it.

        1. Lynchpyn even as we type, I am waiting for Johnny Football to get his NFL baptism on NFL Preseason Live.

          Go Johnny Football !!!

  10. I just skimmed the case opinion, which can be found at this link.…..on-v-ncaa/

    It’s not really a case about personality/publicity causes of action, it’s an antitrust unreasonable restraint of trade case. The players argued the NCAA rules, which the players agree to when they play in the NCAA, operate as an illegal restraint of trade (preventing schools, groups of players and/or individual players from engaging in the trade of their publicity rights) harming competition overall, and the judge agreed.

  11. Sometimes man you jsut have to roll over the mountain.

  12. It’s abomination that taxpayers of their respective states get forced to fund college sports. As it is, the football athletes already get paid for their services, including their likenesses, through all-bills-paid scholarships to 85 players, each team.

    Rightly, if anyone of private interests seeks to establish a league consisting of players who attend the various universities, paying them to play, billing their teams as the “Bulldogs with players from the University of Georgia,” for example, no one should stop them.

    Yet, no one should be forced to pony up taxes having duty imposed upon themselves so college kids attending public universities have the right and get to play sports in giant-sized stadiums and overpaid coaches have the right to get paid to coach these kids.

    Div 1A (aka “Football Bowl Subdivision”) consists of 125 universities or colleges.

    Of the 125, roughly 11% are private schools ? Notre Dame, Tulane, Duke, Vanderbilt, Wake Forest, Baylor, Rice, Southern Methodist, Texas Christian, BYU, Northwestern, Stanford, USC and Syracuse. Not among these is the U of Pittsburgh, which is a de facto public university. 89% of Div 1A are public universities and colleges whose regent boards and respective states’ legislators are ripping off taxpayers.

    1. “Yet, no one should be forced to pony up taxes having duty imposed upon themselves so college kids attending public universities have the right and get to play sports in giant-sized stadiums and overpaid coaches have the right to get paid to coach these kids.”

      In Texas we have some High Schools with stadiums that would rival many college facilities.

      It blows my mind. even though I was once one of those highschool players on a State championship tems and would have loved to play there it is just too much for highschool, tax supported, sports.

      1. I’ve seen pictures. Impressive but morally wrong.

        Now if private citizens want to pony up the funds to build those stadiums, who should stop them?

  13. Does anyone know whether taxpayer funds that go to public schools are used for athletics? That kind of muddies the issue in my opinion if they do. If athletics at public institutions are privately funded by donors, then there should be no need for the state to be involved, because it would simply be a matter of what kind of contract players are agreeing to. However, if taxpayer money is going into athletics at public universities, I could see the case being made either way.

    1. Well, first, no one has money as money is coined metal by weight and fineness. The Romans said so. It’s their word.

      Second, all anyone has is cash, which is evidence of past bank deposits, as well as bank credit.

      Third, there is no such thing as taxpayers’ money.

      Congress as well as legislatures of the various states have given themselves the right and have imposed the duty upon some to pay taxes. All taxes are an unearned share of profit of another.

      Once levied, from the perspective of legislators, it’s their cash and bank credit. Every jurist of every court would agree.

      Fourth, public university athletics get paid for by legislatures and Congress. When Congress spends on Pell grants, that means Congress subsidizes colleges and universities. This frees up funds for the execs at those institutions to spend elsewhere, such as athletics.

      Fifth, public university athletics is deficit financed as all legislatures as well as Congress run fiscal year deficits. That means a part of everything paid is paid by credit from debt incurred.

      1. Smack MacDougal|8.10.14 @ 12:21AM|#
        “Well, first, no one has money as money is coined metal by weight and fineness. The Romans said so. It’s their word.”

        Sarc or stupidity?

      2. Congress does not collect, it does not spend, and it does not issue credit. The Treasury does those things.

      3. Every jurist of every court would agree.

        Oh. Well. Now that we’ve got that settled.

  14. I think people need to look at the fact that this would never have been an issue if the NCAA wasn’t making gargantuan sums of money from TV rights, along with jersey sales that are obviously geared to highlight the star players.

    1. You’ve found the answer! MONEY!!! THE SOURCE OF ALL EVILLLLL!!!!

      1. The NCAA or you are hardly in a position to bitch when athletic programs–football in particular–can be put under sanction for the most innocuous of actions such as a coach buying a player a cheeseburger, yet exploit those players’ talents to increase their own coffers. Acting as if the NCAA is some sort of victim of circumstance is mendacity at its finest.

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