The Right of Publicity and College Sports Broadcasting

Napier

College Athletes Living in Poverty

In a study conducted by the National College Players Association, based on a comparison between the 2011 national poverty line and Football Bowl Subdivision Series (FBS) room and board portions of full athletic scholarships, at least 85% percent of FBS players live below the poverty line.[1] Similarly, Shabazz Napier, now playing for the Portland Trail Blazers, said during his time at the University of Connecticut that there were nights in college where he was hungry and did not have the money for food.[2]

Why College Athletes Are Not Being Paid

There are not many businesses more lucrative than college sports, so why is this happening? One issue is a legality preventing college players from benefitting financially from their participation in college athletics—the inability to receive compensation for the televised broadcast portrayals of their likenesses.[3] The right of publicity, which varies depending on the state and whether the claim is statutory or common law-based in nature, protects a person from the unconsented use of his or her likeness, for commercial purposes.[4] The idea is simple: you cannot use someone else’s name or image, without their permission, to make money. So why can this idea not be applied to television broadcast?

An important court decision that lends some guidance came down in August 2016 at the hands of the Sixth Circuit Court of Appeals.[5] Javon Marshall, a former football player at Vanderbilt University, along with several other former college athletes, filed a lawsuit against ESPN, CBS, NBC, ABC, Fox, and eight NCAA athletic conferences.[6] Marshall and the other athletes alleged violations of their Tennessee statutory and common law rights of publicity.[7] All claims were denied.[8]

A big reason for the denial of the statutory claims was the choice of venue. Tennessee, whose law applied because the original suit was brought in Tennessee federal district court, clearly states that no right of publicity violation can arise from the use of an individual’s name, photograph, or likeness in connection with a sports broadcast.[9]

With respect to the common law claims, the plaintiffs relied on the only common law right of publicity claim heard by the Supreme Court, which held that a performer’s right was violated where he was secretly filmed doing a “human cannonball” routine and that footage was broadcast on Ohio television.[10] The District Court rejected similarities between the cases, and noted that Zacchini does not stand for the existence of a right of publicity whenever anyone performs in an event produced by someone else.[11] The Court, did, however, acknowledge that the First Amendment’s protection against right of publicity claims is not unlimited.[12]

Upon appeal, the Sixth Circuit Court of Appeals affirmed the District Court’s decision as to the statutory and common law rights of publicity claims.[13] The decision was largely based on Tennessee’s law, as applied to not only the statutory claim, but the common law claim as well: “the plaintiffs’ common-law claim is meritless, as the district court rather patiently explained, because the Tennessee courts have never recognized any such right and because, in the meantime, the Tennessee legislature has spoken to the issue directly.”[14]

Future Options for College Athletes

It seems that the choice of venue played a huge role in the denial of these claims. Were these claims brought in a different jurisdiction, say, California, which applies the right of publicity more broadly, perhaps the result would have been different.[15] Rulings from these jurisdictions may be college athletes’ last hope at being compensated for the portrayal of their likenesses in television broadcast, as the Supreme Court seems unwilling to weigh in on the issue.

Author Biography:

Jason Rozbruch is a first-year student at Fordham University School of Law. Prior to attending Fordham Law, Jason attended the University of Michigan, where he graduated with a major in History and a minor in the Afroamerican & African Studies Honors Program.

[1] Huma, Ramogi, and Ellen J. Staurowsky, E.d.D. “The Big Price of Poverty in Big Time College Sport.” Ncpanow.org. Accessed March 26, 2017. http://www.ncpanow.org/research/body/The-Price-of-Poverty-in-Big-Time-College-Sport.pdf.

[2] Sherman, Rodger. “Shabazz Napier: ‘We Have Hungry Nights’.” SBNation.com. April 07, 2014. http://www.sbnation.com/college-basketball/2014/4/7/5591774/shabazz-napier-uconn-basketball-hungry-nights.

[3] See Marshall v. ESPN, No. 15-5753, 2016 U.S. App. LEXIS 15292 (6th Cir. Aug. 17, 2016).

[4] See e.g., N.Y. Civ. Rights Law §§ 50, 51 (LexisNexis2017) (stating that a person’s right of publicity is violated, when, without his or her consent, that person’s name, portrait, picture, or voice is used in trade or advertising).

[5] See Marshall v. ESPN, No. 15-5753, 2016 U.S. App. LEXIS 15292.

[6] See id.

[7] See id.

[8] See id.

[9] Tenn. Code Ann. § 47-25-1107 (LexisNexis 2017).

[10] Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 573 (1977).

[11] See Marshall v. ESPN Inc., 111 F. Supp. 3d 815, 828-29 (M.D. Tenn. 2015).

[12] See id. at 828.

[13] See Marshall v. ESPN, No. 15-5753, 2016 U.S. App. LEXIS 15292.

[14] Id. at *5.

[15] See generally White v. Samsung Elecs. Am., Inc., 971 F.2d 1395, 1399 (9th Cir. 1992) (holding Samsung liable for violating Vanna White’s right of publicity where they produced a commercial with a robot wearing clothing similar to her and spinning the Wheel of Fortune).

Reshaping the NCAA Market Power Discussion Post-O’Bannon

Ed O’Bannon was a member of the 1995 UCLA Championship Basketball Team, and the Tournament’s Most Outstanding Player. O’Bannon, now a car salesman, noticed something one day while watching a child play “NCAA Basketball” produced by Electronic Arts. What he noticed was a player, wearing the same number as he did, same height, and near identical attributes as himself, playing for UCLA. While his name wasn’t used, Ed wondered why he isn’t, or hasn’t been, compensated for someone else using his image and likeness in the video game.

O’Bannon, along with 20 other plaintiffs (including Hall of Famers Oscar Robinson and Bill Russell), brought suit in Northern District of California alleging the NCAA violated antitrust law by fixing player compensation, for usage of their image and likeness rights (“ILR”), at $0. At the time of the suit, players were barred from receiving any money generated from their ILR. This includes endorsements, merchandise sales, video games, or television exposure. The NCAA argued that in order to maintain a model of amateurism, these “student-athletes” are barred from profiting of their ILR.

Judge Claudia Wilken delivered a favorable holding for the players in early August. She ruled that the NCAA regulations prohibiting players from profiteering off of their ILR’s is an unreasonable restraint on trade violating Section 1 of the Sherman Act. Judge Wilken did not extend the holding to allow players from collecting their share of profits during their tenure as a player or in school. However, Wilken found delayed payment, held in trust, for the players and disbursed upon graduation or withdrawal, to be a reasonable restraint on trade, due to the a pro-competitive justification by the NCAA.

The NCAA has been characterized as a classic “cartel.” A cartel, in the eyes of antitrust law, is defined as a combination of producers of any product joined together to control its production, sale, and price, as to obtain a monopoly and restrict competition in any particular industry or commodity. The NCAA itself functions as a trade association that prescribes rules for its membership, comprised of over 1000 schools.

In bringing a Section 1 claim, the claimant must hurdle the threshold issues of 1) showing an agreement between two or more parties; and 2) that the alleged restraint affects interstate commerce. Both threshold issues are easily satisfied when analyzing rules prescribed by the NCAA. It has been clearly established, by the Supreme Court, due to the nature of sporting leagues, that the appropriate rule for viewing restraints of trade is the Rule of Reason, and not the Per Se rule. In a very basic explanation, the Rule of Reason, first looks to “Market Power” (Geographic and Product), and affords the ability to justify the restraint as a “reasonable” restraint because it is pro-competitive and is as least restrictive as possible.

Most significantly, in these instances, the NCAA holds complete market power in the services for Division 1 Basketball and FBS group licensing ILR. This is so simply because there is no reasonable alternative available. All member schools must assent to NCAA rules or face sanctions, and even expulsion from membership. Both measures demonstrate classic cartel behavior.

The NCAA has very recently dropped the rules prohibiting compensation beyond the stipends offered by teams. To counter the impending ramifications of being enjoined from enforcing these restraints, the “Big Five” Conferences, comprised of the ACC, Big 12, Big Ten, Pacific-12, and the Southeast Conference (SEC) have been given the autonomy to make their own rules regarding ILR compensation. While a loosening of the rules by the NCAA may seem on its face a big win for the players, it isn’t exactly the “no-strings attached” kind of a gift by the NCAA.

Going back to the Rule of Reason, the claimant must show that the alleged competitors have market power. Courts have generally held that in order to fall within the scope of Section 1, market power must near or above a 33% market share. Again, established in the NCAA O’Bannon case, the NCAA as 100% market power. However, by delegating the rulemaking to the Big Five, without further analysis, would appear that when each conference enacts a rule that it’s member schools agree on, they will fall below the a 33% market power share because each conference will, absent further analysis, account for only 20% market power.

What is most interesting is that not all conferences are created equal. Merely allowing 5 separate actors to make rules autonomously doesn’t necessitate equal market shares. Firstly, Conferences don’t all have the same amount of teams (ACC, Big Ten, and SEC each have fourteen; Pac-12 has twelve teams; Big 12 has ten teams). On its face, based solely on the amount of teams in each conference, the ACC, Big Ten, SEC would each have approximately 21.8%. The Pac-12, and Big 12 would have 18.7% and 15.6%, respectively. Further, the past 8 FBS Championship games have all featured teams from the SEC, with the SEC team winning all those contests except 2013. This seems to show more than just mere coincidence; it tends to show that in the market for elite player services, the SEC may control more of the market. A more detailed inquiry into the allocation of top recruiting classes may shed even more light onto actual market power, as opposed to the assumption of 20% per conference.

The market power determination will play an integral role in the rulemaking of the Conferences. In the past, some courts have tended to struggle with the economic analysis of antirust cases. It will be interesting to see how courts may come to grapple with this determination and also what new rules the Big Five will enact.