At first, Ed O'Bannon was only interested in the video games: The class-action lawsuit the former UCLA hoops star brought against the NCAA in 2009 was inspired by a digital doppelganger on an EA Sports title that featured "classic" teams, and Electronic Arts was named as a co-defendant. Other suits targeting the video game giant for reproducing the likenesses of former players without permission or payment were eventually brought under the umbrella of O'Bannon's.
Last month, a district court judge in California exempted EA from the suit, on the grounds that there was no evidence that the company agreed to participate in the alleged "conspiracy" that requires all incoming NCAA athletes to sign away marketing and licensing rights in perpetuity. Instead, O'Bannon's team has set its sights on an even bigger target ? the broadcast and cable companies that air old footage during games. From the USA Today:
Attorneys for a group of former college players suing the NCAA over the continued use of their likenesses in commercials, video games and other mediums are taking their fight to ESPN, CBS and other major networks.
A cease-and-desist letter sent Monday says each of the networks "appears to have no right" to feature the names, images and likeness of former major-college football and basketball players without their permission.
In essence, it's a threat. Asked what legal compulsion there might be for, say, ESPN Classic to pull programming, Washington, D.C.-based attorney Michael Hausfeld said, "None yet. But what it does is put all of those licensees on notice that they paid (the NCAA) for something [the NCAA] didn't have and they could become involved in litigation. ? You've got to get a license from the people and entities that own the rights."
The letter calls for all licensing fees paid to the NCAA or its licensing partner, the Collegiate Licensing Company, to go into an escrow account, and for all existing contracts to be rewritten in the meantime to clarify the specific rights held by the NCAA. It also asks for the networks to negotiate separate licensing contracts with individual former players, on the basis of the NCAA's acknowledgement during a recent hearing that "there are no licenses from the NCAA that purport to?constitute a license of any student athlete rights," and that those rights "are at all times owned by the student athlete."
In theory, then, the plaintiffs are demanding that the networks either stop showing replays of, say, this play:
? or else somehow track down Kevin Moen and at least a few of the other 21 players on the field back in 1982 and secure their express written consent for commercial rights to their images, which until now have been illegally appropriated by the NCAA. (Sorry, the unfortunate tuba player is on his own.) And then secure the consent of Doug Flutie, Lindsay Scott, Kordell Stewart and anyone else it wants to remember from the good ol' days. Now that certain clips can be viewed a couple hundred thousand times online, maybe YouTube's in line for a cease-and-desist letter, too.
Back in reality, if EA Sports isn't liable for exploiting former players' likenesses, it's hard to imagine how CBS or ESPN could be, or that the plaintiffs' attorneys actually expect them to be until a court rules in the players' favor. That can't happen until next year, when the case is scheduled to go to trial ?�if it hasn't been settled in the meantime. I'm a fake doctor, not a lawyer. But if the plaintiffs do win, and the NCAA is no longer allowed to peddle their images to outside companies in perpetuity, it will represent a fundamental shift in the way college sports are bought, sold and marketed. Considering the scope of ex-athletes who'll suddenly have a claim, as this letter suggests, it will mean a lot of work for a few union organizers, too.
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Matt Hinton is on Twitter: Follow him @DrSaturday.
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