Intellectual Property Attorney

NCAA Removes Right Of Publicity Release From Agreements With Student Athletes

We previously posted a series of blogs (1,
3) about litigation involving video game manufacturer Electronic Arts, Inc. (a/k/a E.A. Sports) and the NCAA, which were both sued by former college athletes who claim that their likenesses were used in video games without their consent.

We also posted a blog about a separate class action lawsuit filed by former college athletes against the NCAA, alleging that the NCAA member schools illegally restrained trade by collectively preventing athletes from controlling their publicity rights. During a recent trial, evidence was introduced to show that college athletes were required to sign a set of forms containing a right of publicity release. The release, which was part of the Student-Athlete Statement signed by all Division I athletes, granted to the NCAA or an associated third party (e.g., conferences and individual schools) the right to use athletes’ names and likenesses to promote NCAA events without compensation.

At trial, the NCAA maintained that the name and likeness portion of the Student-Athlete Statement was not mandatory. There was testimony, however, from a conference Commissioner and a college President that student athletes were required to sign the release or they were ineligible to play. In addition, athletes testified that they were presented with a set of forms, given little time to read them and were told that they were required to sign.

As reported by USA Today, the NCAA has now removed the disputed release from this year’s version of the Student-Athlete Statement. It appears that the NCAA may be attempting to distance itself from the intense scrutiny that has surrounded the release since the class action lawsuit was filed. It should also be noted that a federal judge is currently deliberating as to whether the NCAA illegally restrained trade by preventing the athletes from controlling their intellectual property rights. The NCAA may simply be attempting to bolster its position that the release was not mandatory by removing it in advance of the Court’s decision.

Aside from the NCAA, some individual conferences and schools require a separate right of publicity release. The Big Ten Conference schools, for example, require athletes to sign a broad release granting the right “to publish, duplicate, print, broadcast or otherwise use in any manner of media, [the athlete’s] name, photograph, likeness, or other image of [the athlete] for any purpose” including “promotional and marketing materials and uses by the Big Ten Network, CBS, ABC and ESPN.” The release goes on to state: “I agree that neither I nor my heirs shall be entitled to any compensation for the use of my name, photograph, likeness or other image of myself.”

It will be interesting to see whether the removal of the release by the NCAA will cause individual conferences and schools to follow suit, and what the impact on the pending class action lawsuit will be. We will continue to update this blog as events warrant.

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