O'Bannon v. NCAA: Should Former Student-Athletes be Paid for the NCAA's use of their Images and Identities?

A few hours ago, former UCLA basketball star Ed O'Bannon, on behalf of a class of thousands of former men's basketball and football players, filed a class action lawsuit in the U.S. District Court for the Northern District of California over the NCAA's use and license of former student-athletes' identities in various commercial ventures. The claim is based primarily on Section 1 of the Sherman Act and the right of publicity.

O'Bannon has put together a high-profile legal team to represent him. His lead counsel is Michael Hausfeld, who successfully represented victims of the Holocaust whose assets were wrongfully retained by private Swiss banks during and after World War II. Hausfeld will be aided by several attorneys from Boies, Schiller & Flexner, a law firm which represented former Vice President Al Gore in Bush v. Gore, and by basketball legend and player rights’ advocate Sonny Vaccaro, who has been retained by Hausfeld LLC as an unpaid consultant (meaning he has no financial stake in the case). It stands to reason that these attorneys would only agree to represent O’Bannon if they were confident that his claims will survive the NCAA’s motions to dismiss and go to trial.

I have a column on SI.com about this lawsuit. An excerpt is below.

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O'Bannon v. NCAA stems from a series of documents Division I student-athletes are required to sign as part of their participation in college sports. Form 08-3a (the "Student-Athlete" statement) is one such document. Among other conditions, it specifies, "You authorize the NCAA . . . to use your name or picture to generally promote NCAA championships or other NCAA events, activities or programs." By signing the statement, student-athletes relinquish in perpetuity all future rights in the NCAA's licensing of their images and likenesses. O'Bannon claims that student-athletes -- some of whom are younger than 18 -- effectively have no choice but to sign, since they would otherwise be deemed ineligible to play and would risk losing their athletic scholarships.

In the NCAA's view, however, these documents promote the NCAA's core mission: the integration of intercollegiate athletics into higher education and the promotion of student-athletes' educational experiences. Along those lines, as a voluntary organization comprised primarily of colleges and universities, the NCAA tends to frown upon professional and other remunerative endeavors pursued by student-athletes.

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In assessing O'Bannon's claims, a court will consider the extent to which student-athletes possess a real "choice" when presented with the Student-Athlete statement and similar documents. On that front, O'Bannon appears emboldened by NCAA policies on student-athletes' access to legal counsel. According to O'Bannon, neither NCAA officials nor college athletic officials advise student-athletes that they can seek legal advice in connection with the release of future compensation rights. Particularly given the lack of "life experience" of most incoming student-athletes, such a policy may be viewed as arguably exploitative and also one that creates a disparity in bargaining power.

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To read the rest, click here.