Two years ago, former NCAA Champion Ed O’Bannon sued the NCAA and EA Sports for the continued use of former college basketball and football players’ likenesses in video games without providing compensation. Last week, Judge Claudia Wilken of the U.S. District Court of Northern California dismissed the claims against video game developer EA Sports but ruled that the antitrust and right-to-publicity claims against the NCAA and the Collegiate Licensing Company will move forward, setting a trial date of March 11, 2013.
At issue are the contracts that all college athletes must sign before participating in athletics at their schools. Judge Wilken noted in her ruling that: “This purported conspiracy involves Defendants’ concerted action to require all current student-athletes to sign forms each year that purport to require each of them to relinquish all rights in perpetuity for use of their images, likenesses and/or names and to deny compensation ‘through restrictions in the NCAA Bylaws.’” Her ruling reflects that the complaint doesn’t explicitly link EA Sports with the conspiracy perpetrated by the NCAA and the CLC. However, EA Sports is not totally absolved of any wrongdoing, as they may face other lawsuits in the future arising from possibly violating former athletes’ right to publicity.
Some may argue that the contracts that the NCAA and the CLC have the athletes sign are unconscionable. An unconscionable contract is one that seems unfair or unjust or would shock the conscience of a reasonable person. When these athletes sign contracts to participate in college athletics, they aren’t realizing that they are signing away their likenesses forever. The court’s role in unconscionable contracts is to ensure that one party is not benefiting from the exploitation of another. The NCAA and other licensing arms capitalize off of the image of the star athletes and unknowns for the rest of their lives without providing compensation. How is this fair?
Most will point to the fact that the athletes receive free education for playing college athletics. What happens when they graduate and become professionals? It’s also unknown that college scholarships are year-to-year, not for a guaranteed four years. With NCAA graduation rates as low as they are now for major schools, it’s clear that some athletes are not in school for the degree. As I’ve written earlier, it might be time for the NCAA to evaluate and revamp the way it treats college athletes.