Since 1993, the NCAA released a video game based on college football and basketball games every year. This tradition has come to an end in 2014 due to the mounting pressure placed on the organization from former college athletes. They are complaining that their image and likeness has been used by EA Sports without their consent.
Ed O’Bannon, a former UCLA basketball player, initiated a lawsuit against the NCAA in 2009. Shortly after, over 20 student athletes joined in as plaintiffs. One of the issues raised is Right of Publicity. In 2014, a district court in California ruled in favor of the student athletes, saying that the student’s publicity rights had been violated by the use of their likeness in the NCAA videogames. The court set up a trust fund for the students to receive money upon graduation order that scholar compensation should be increased.
The case was appealed, and a year later the Ninth Circuit affirmed the district court in part. It struck the trust fund, but upheld the idea of increased scholarships. The ruling now increases the scholarship from just tuition to now cover the cost of attendance.
Right of publicity is the right of an individual to control the commercial use of his name, image, or likeness. The right of publicity is an inherit right, no matter a person’s status in society. To show a violation of ones right to publicity, a plaintiff must show two things. They have to show validity and infringement. The court did not address validity. However, the main issue was infringement. To prove infringement, the plaintiff must show that their persona was used without their permission and there was a high likelihood that their persona was actually damaged by the use. For policy reasons, right of publicity is important because society wants individuals to be able to protect their own image.
As an avid fan of the NCAA Football games, I have an issue with this ruling. I attribute my love of college football to playing these games. I took great joy in creating myself and going through the hoops as a college athlete to take my team to the national championship. But when I found out that the games were going to be discontinued, I was crushed. I understand the importance of protecting individual’s identities. I am not going to argue against the Ninth Circuit: EA definitely used the student athlete’s image and likeness in the games. They used pretty much every aspect of the athletes except their face and name. Yet, when you load up NCAA 10 and play as the Florida Gators, QB #15 is Tim Tebow. That was the appeal of the games.
I believe that the court moved too quickly to protect the “interests” of college athletes and did not consider everything these students actually gained from their relationship with the NCAA. When you agree to play for a university as an amateur athlete, it is implied that your likeness will be used to help promote the school’s athletic program. When you agree to play in a program overseen by the NCAA, you are provided with opportunities people less fortunate then yourself can only dream of: a free education and a chance to play collegiately. You are impliedly waiving your right of publicity so that the NCAA and your school can use your image to promote the programs that provide you with an opportunity to excel. If some athletes turn out to be superstars and make it to the professional level, they will be able to control and profit from their image when it is actually worth something. If the NCAA needs to use the image of a few college athletes to fund its operations through games and other merchandise, the value of this exposure is worth much more than any damages they would receive from successfully suing the organization.
But seriously, who would not jump at the chance of playing themselves in a game? I cannot imagine being upset that I am not being paid when every teenager who plays the games wants to emulate me. There is no way that using the image and likeness of these athletes would damage their identity (unless they got stuck with some crummy player stats).
By Donny Devitt
Originally appeared in Game On! Issue 5, The John Marshall Law School’s Video Game Law Society Newsletter. Published April 4, 2016.
 Taylor Riskin, Student-Athletes Put Full-Court Pressure on the NCAA for their Rights, 15 J. MARSHALL REV. INTELL. PROP. L. 276, 294 (2016). The contract that the NCAA requires all student-athletes to sign describes a number of terms, including use of likeness. Id.