Just as the NCAA heads to federal court, they settled their way out of one case involving student athletes and their likenesses.
The NCAA agreed to a $20 million settlement in the case brought forth by former college QB Samuel Keller on Monday, which was originally consolidated with the Ed O’Bannon case that is being argued this week. Both cases argues over student athletes’ right to publicity, the settlement with Keller – who played at Arizona State University and the University of Nebraska – closes the debate on whether or not athletes have control over their likeness appearing in video games produced by Electronic Arts, Inc.
According to the NCAA’s official announcement:
The settlement will award $20 million to certain Division I men’s basketball and Division I Bowl Subdivision football student-athletes who attended certain institutions during the years the games were sold.
“With the games no longer in production and the plaintiffs settling their claims with EA and the Collegiate Licensing Company, the NCAA viewed a settlement now as an appropriate opportunity to provide complete closure to the video game plaintiffs,” said NCAA Chief Legal Officer Donald Remy.
Keller, alongside other former student athletes, filed suit against the NCAA and EA claiming that the organizations violated California’s state law on the right to publicity by creating avatars that looked like them in video games – even though they didn’t use players’ names – without their permission.
The case went beyond whether or not the NCAA had the right to use players’ images or not, according to Alexander Dowd for the LoTiempo Law Blog.
In this case, the players challenged the NCAA’s restriction not allowing them to sell group licenses to their names, images, and likenesses. The former players argued that the NCAA’s restriction affected two markets: the market for college education and the market for group licensing. [Northern District Court of California] determined that the plaintiffs had established enough evidence to support their claims because the NCAA had continued to use their images long after they had left collegiate sports.
As part of the consolidated class action suit filed in 2009, 24 players said that the organizations “conspired not to compensate athletes for the use of their names, images, and likenesses in video games and television broadcasts,” according to Megan Morley for the Antitrust Alert.
The O’Bannon case was originally part of that class action because of the overlap of the antitrust issue and another concern over the First Amendment right of media companies. The O’Bannon case, however, challenges the rights of athletes in live broadcasts and if the NCAA, according to intellectual property lawyer Matt Ganas,
has violated federal antitrust laws by administering rules that prevent former and current Division I football and basketball players from licensing their names, images and likenesses for commercial purposes. The [California federal court]’s recent ruling came in response to NCAA’s cross-motion for summary judgment, which sought dismissal of Antitrust Plaintiffs’ “live broadcast” liability theory on First Amendment grounds. The court found that the First Amendment does not preclude any of Antitrust Plaintiffs’ claims as a matter of law.
The NCAA has been trying to dismiss the consolidated cases since 2013 because sporting events are a matter of public interest and protected by the First Amendment.
Even though the Keller and O’Bannon case have been in the works for five years, the settlement and the trial comes at a time when paying college athletes is being realistically considered. EA settled out of its Keller case much earlier with little impact on college sports and this settlement with the NCAA will probably not have any real direct impact on athletics. In regards to the O’Bannon case, whatever the ruling, it will likely be appealed, but the timing of this will be mostly symbolic.