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GAMECHANGER: NCAA STUDENTATHLETE NAME & LIKENESS LICENSINGLITIGATION AND THE FUTURE OFCOLLEGE SPORTSMaureen A. Weston*Introduction. 78I. NCAA Amateurism Regulations . 83A. The NCAA and the Student-Athlete. 83B. NCAA Business and Licensing Model . 861. Media Broadcasts. 872. NCAA Product Licensing. 883. Video Games, DVDs, and Online Streaming. 90C. Where NCAA Money Goes: Revenue Distributionsand Non-Revenue Receipts. 91II. In re Likeness Progeny. 92A. Case Chronology (aka The O’Bannon Litigation) . 921. Right of Publicity Claims. 922. Sherman Act Antitrust Claims . 943. Pending: In re Likeness Consolidated Class ActionClaims . 95B. Rulings on Motions to Dismiss and ClassCertification. 99* Professor of Law and Director, Entertainment, Media, and Sports DisputeResolution Project, Pepperdine University School of Law. The author would like tothank the MISSISSIPPI SPORTS LAW REVIEW for hosting the symposium on Amateurismand the Future of the NCAA.7777

78MISSISSIPPI SPORTS LAW REVIEW[VOL. 3:11. NCAA’s Motion to Dismiss Denied . 992. Partial Class Certification Ruling for AntitrustInjunctive Relief . 102III. . Is the NCAA’s Golden Goose Dead? Outcomes andAlternatives Post-In re Likeness . 103A. Impact on Athletic Programs If NCAA Must Pay . 104B. Cancelled Deals and Leaving Money on theTable . 105IV. Alternatives for Settlement and Proposed Changes 105A. Take Pay-for-Play Off the Table . 106B. Unionize Student Athletes . 107C. Money in Trust: Educational Lockbox and PostEligibility Graduation Success Rates . 109D. Individual Endorsement Deals . 110F. Congressional NCAA Antitrust Exemption. 112Conclusion . 113INTRODUCTIONEnvision, if you can, what the world of college sports wouldlook like if some or all collegiate student-athletes were paid or,perhaps, if the players were not even students. Imagine Saturdaysin the fall with no college football telecasts, or weekends in Marchwithout access to watch—on TV, the internet, or other mediadevices—the famed NCAA Men’s Basketball March Madnesstournament, all in order to preserve amateurism in college sports.Each of these scenarios is likely unthinkable to the millions offans—alumni, students, and devoted followers of college sports—and to the multi-billion dollar industry that is generated by thebroadcast of NCAA Division I men’s football and basketball.Whether players can and should be paid is seemingly an age-old

2013]Gamechanger: NCAA Student-Athlete Likeness79question and the subject of fierce debate.1 Some have likened thenon-payment of college athletes in big-time college sports to“indentured servitude,”2 while the NCAA and others believe thatamateurism is vital to preserve the essence of an already enrichedstudent-athlete experience.3 The question, however, is now at theforefront of a class-wide litigation in In re NCAA Student-AthleteName & Likeness Licensing Litigation.4The requirement of amateurism is the proclaimed foundationof intercollegiate sports. That is, athletes play without pay as partof their collegiate experience and for the pure enjoyment of thesport. As the governing body of intercollegiate athletics, theNCAA’s mission has been to ensure a “clear line of demarcation”5between amateur and professional sports. The NCAA has1 For nearly a quarter of a century, only one college football game was televised onSaturdays in the fall, and revenue shared among the NCAA and televised teams. SeeBd. of Regents v. Nat’l Collegiate Athletic Ass’n, 546 F. Supp. 1276, 1243 (W.D. Okla.1982). Since the Supreme Court’s 1984 decision declaring this practice in violation offederal antitrust laws, NCAA policies and practices have been subject to numerousantitrust challenges.2 Ramogi Huma & Ellen J. Staurowsky, The 6 Billion Heist: Robbing CollegeAthletes Under the Guise of Amateurism, NAT’L COLLEGE PLAYERS ASS’N, 9 (2012),available at udy Full.pdf. See alsoAndrew Zimbalist & Allen Sack, Thoughts on Amateurism, the O’Bannon Case and t/; Taylor Branch, The Shame of College Sports, THE ATLANTIC(Sept. 7, 2011, 11:28 AM), 0/theshame-of-college-sports/308643/; CHARLES T. CLOTFELTER, BIG-TIME SPORTS INAMERICAN UNIVERSITIES (2011).3 See, e.g., About: Office of the President, nt (last visited Apr. 6, 2014) (noting that athletic grants can be worthmore than 100,000 and the many benefits of the student-athlete experience);Associated Press, Syracuse’s Jim Boeheim: Paying NCAA Athletes ‘idiotic’, USA 2327/ (“‘That’s really the most idioticsuggestion of all time,’ Boeheim said. ‘I don’t believe players should be paid. I believethey are getting a tremendous opportunity.’”); Alex Prewitt, Large Majority OpposesPaying NCAA Athletes, Washington Post-ABC News Poll Finds, THE WASHINGTONPOST (Mar. 22, 2014), 1e3-95e8-39bef8e9a48b story.html.4 See 2013 WL 5778233 (N.D. Cal. Oct. 25, 2013).5 Fundamental Policy, 2012-13 NCAA DIVISION I MANUAL art. 12.01.1 (2012)[hereinafter NCAA MANUAL], available /D113.pdf.

80MISSISSIPPI SPORTS LAW REVIEW[VOL. 3:1extensive rules and penalties on eligibility in furtherance of itsedict that “[o]nly an amateur student-athlete is eligible forintercollegiate athletics participation in a particular sport.”6 Insupport and defense of its amateurism regulations, the NCAA hasrelied upon Justice Stevens’ statement, in NCAA v. Board ofRegents, that “[i]n order to preserve the character and quality ofthe [NCAA’s] ‘product,’ athletes must not be paid, must berequired to attend class, and the like.”7Why amateurism in college sports must exist at all, or bedefined as requiring no “over the table”8 monetary payment tostudent-athletes is under scrutiny in an age of exorbitant coachingand administrator salaries, billion dollar television contracts,lucrative merchandising deals, star players with internet andmultimedia platforms, and seemingly unlimited opportunities toshowcase live and archived video footage spanning over sixtyyears of college sports contests.9 In its challenge to the NCAA’suse of student-athletes’ names, images, and likenesses in businessventures without specific authorization from or compensation tothose student-athletes, In re NCAA Student-Athlete Name &Likeness Licensing Litigation10 threatens to dismantle the NCAA’slongstanding rules on amateurism and intercollegiate sports as weknow it.11 The lawsuit seeks certification of a class comprised ofcurrent and former student-athletes dating back over sixtyyears—potentially hundreds of thousands of plaintiffs—in a classaction lawsuit naming the NCAA, Collegiate Licensing Company(CLC), and Electronic Arts, Inc. (EA) as defendants.126Eligibility for Intercollegiate Athletics, NCAA MANUAL, supra note 5, at art. Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of Univ. of Okla., 468 U.S. 85,102 (1984) (“The NCAA plays a critical role in the maintenance of a revered tradition ofamateurism in college sports. There can be no question but that it needs ample latitudeto play that role, or that the preservation of the student-athlete in higher educationadds richness and diversity to intercollegiate athletics and is entirely consistent withthe goals of the Sherman Act.”). Id. at 120.8 Ray Yasser et al., Sports Law: Cases and Materials 2 (7th ed. 2011).9 See infra Section I.B.10 See generally Order Denying Motions to Dismiss, In re NCAA Student-AthleteName & Likeness Licensing Litig., 2013 WL 5778233 (N.D. Cal. Oct. 25, 2013)(denying the NCAA’s motion to dismiss).11 Id.12 See Third Consolidated Amended Class Action Complaint, In re NCAA StudentAthlete Name & Likeness Licensing Litig., 2013 WL 3772677 (N.D. Cal. July 18, 2013).

2013]Gamechanger: NCAA Student-Athlete Likeness81In re NCAA Student-Athlete Name & Likeness LicensingLitigation is a consolidated lawsuit that arose principally from twofederal lawsuits filed in California in 2009 against the NCAA, EA,and the CLC: Keller v. Electronic Arts, Inc.,13 and O’Bannon v.National Collegiate Athletic Ass’n.14 These cases attack thepractice of using the names, images, and likenesses (NIL) ofstudent-athletes in broadcasts and rebroadcasts of games, DVDs,photos, video games, etc., without compensation to the athletes.15The litigation initially claimed, principally, two violations of law;first, that the NCAA’s policies unlawfully restrain trade inviolation of federal antitrust laws; and second, that the NCAAviolates former student-athletes’ right of publicity.16The lawsuit took a sharp turn in January 2013 when theplaintiffs amended their consolidated class action lawsuit to addcurrent student-athletes to the class and to expand their claimsbeyond video games. Now, the plaintiffs seek fifty percent of allrevenue generated by the NCAA (and conference televisioncontracts), including live broadcasts.17 In November 2013, U.S.District Court Judge Claudia Wilken issued an order grantingcertification for the purpose of injunctive relief to a class of allcurrent and former NCAA Division I men’s basketball andFootball Bowl Subdivision men’s football players “whose images,likenesses and/or names may be, or have been, included in gamefootage or in video games licensed or sold by Defendants, theirco-conspirators, or their licensees after the conclusion of theathlete’s participation in intercollegiate athletics.”18 As such, theSee also NCAA’s Opposition to Motion for Class Certification, In re NCAA StudentAthlete Likeness Antitrust Litig., 2013 WL 1005475, at *1 (N.D. Cal. Mar. 14, 2013).13 2010 WL 530108 (N.D. Cal. Feb. 8, 2010).14 2009 WL 4899217 (N.D. Cal. Dec. 11, 2009).15 See Jason M. Breslow, NCAA Lawsuit Asks, Should Student-Athletes Be Paid?,PBS (June 20, 2013, 1:03 PM), nt-athletes-be-paid//.16 See Order Denying Motions to Dismiss, In re NCAA Student-Athlete Name &Likeness Licensing Litig., 2013 WL 5778233, at *2 (N.D. Cal. Oct. 25, 2013).17 Third Consolidated Amended Class Action Complaint, In re NCAA StudentAthlete Name & Likeness Licensing Litig., 2013 WL 3772677, at ¶9 (N.D. Cal. July 18,2013).18 Order Granting in Part and Denying in Part Motion for Class Certification, In reNCAA Student-Athlete Name & Likeness Licensing Litig., 2013 WL 5979327, at *10(N.D. Cal. Nov. 8, 2013). This order granted class certification on antitrust claims, but,citing manageability problems with ascertaining harm, denied the request to certify adamages subclass Id. at *17. Affected athletes may sue for damages individually. Id.

82MISSISSIPPI SPORTS LAW REVIEW[VOL. 3:1“pay-for-play” debate is at the precipice;19 and the imminentfuture of college sports broadcast contracts, if not the NCAA, liesin peril.20This Article examines the implications of the challengesraised in In re NCAA Student-Athlete Name & Likeness LicensingLitigation on the future of amateurism, the NCAA, andintercollegiate athletics. Part I provides an overview of theNCAA’s regulatory structure and operations. Part II chroniclesthe litigation as it has unraveled over the past five years andanalyzes the respective arguments involving the legal claims anddefenses to the alleged antitrust and right of publicity violations.With the June 2014 trial date looming, the respective parties areentrenched in seemingly intractable positions, in an apparentdownward spiral where the prospect of capturing the mutualAs amended, the antitrust class comprises “[a]ll current and former student-athletesresiding in the United States who compete on, or competed on, an NCAA Division I(formerly known as “University Division” before 1973) college or university men'sbasketball team or on an NCAA Football Bowl Subdivision (formerly known as DivisionI–A until 2006) men's football team and whose images, likenesses and/or names maybe, or have been, included or could have been included (by virtue of their appearance ina team roster) in game footage or in videogames licensed or sold by Defendants, theirco-conspirators, or their licensees.” Order Resolving Cross-Motions for SummaryJudgment, In re NCAA Student-Athlete Name & Likeness Licensing Litig., 2014 WL1410451, at *20 (N.D. Cal. Apr. 11, 2014). In March 2014, a similar class action lawsuitwas filed in federal court in New Jersey by noted sports law labor attorney Jeff Kesslerand the Winston and Strawn law firm, which had previously announced its opening ofa division for college athlete representation. See e.g., Complaint and Jury Demand Seeking Injunction and Individual Damages, Jenkins v. NCAA, Case No. 3:33-av-0001(N.J. March 17, 2014). See also infra note 101.19 Stewart Mandel, USC’s Haden: Ed O’Bannon case could cause seismic news/20130401/pat-haden-ed-obannonncaa/. The Sherman Antitrust Act also provides for treble damages and attorneys fees.15 U.S.C. §§ 1-7 (2004).20 Michael McCann, Judge Partially Certifies Class Action Status in t/ (suggesting that television networks may have to negotiate broadcastrights “not only with the NCAA but with student-athletes . . . [and] the NCAA andstudent-athletes might strike separate licensing contracts with two different videogame publishers.”).In defense, the NCAA maintains that the fair use andnewsworthiness doctrines in federal copyright law and the First Amendment preemptplaintiffs’ claims to rights to broadcast revenue. However, the court did not find thisargument sufficiently convincing to warrant dismissal of the claims. See infra SectionI.B.1. See also Class Certification Order, 2013 WL 5979327, at *8-9.

2013]Gamechanger: NCAA Student-Athlete Likeness83benefits of commercial opportunities in college sports is at risk.Part III considers the practical impact on NCAA sports, should theplaintiffs’ class claims succeed, and explores options to resolve thedispute in a manner that benefits the interests of all inintercollegiate athletics.I. NCAA AMATEURISM REGULATIONSA. The NCAA and the Student-AthleteThe National Collegiate Athletic Association (NCAA) “wasfounded in 1906 to protect young people from the dangerous andexploitive athletics practices of the time.”21 Since its inception, theNCAA has sought to combat abuses in intercollegiate sports byenforcing the requirement of amateurism.22 The NCAA is anassociation of over 1,200 member institutions, schools, colleges,universities, and athletic conferences.23 Each year, the NCAAoversees more than 430,000 student-athletes as they compete intwenty-three sports.24 The NCAA is subdivided into three21 About: Health and Safety, NCAA, ety (last visited Apr. 6, 2014). See also Name, Purposes and FundamentalPolicy, NCAA MANUAL, supra note 5, at art. 1; Branch, supra note 1 (noting that thedeath of twenty-five college football players in the 1905 season prompted the call forreform of the sport and the formation of the association).22 Amateurism, NCAA MANUAL, supra note 5, at art. 12. See also Zimbalist & Sack,supra note 1, at 1-2 (describing the evolution of NCAA rules as initially prohibiting anyform of compensation or inducements to student-athletes in order to address concernsof improper recruiting to allowing athletic-based scholarships given the increasedcommercialism of college sports).23 About: Membership, NCAA, st visited Apr. 6, 2014). The NCAA is led by a president and features an ExecutiveCommittee with budgetary oversight functions. Representative member institutionscompose an extensive committee structure which examines issues and makeslegislative and policy recommendations to leadership groups in each Division. Thesegroups include the Division I Board of Directors, the Division II Presidents Council,and the Division III Presidents Council.24 ents/NCAA-Eligibility-CenterBrochure 0.pdf (last visited Apr. 6, 2014). The NCAA is divided into three divisions ofplay from which member schools can choose to participate. Division I, comprised of 340member schools, has the largest programs and provides the most athletically relatedfinancial aid for student-athletes. Division II provides limited financial aid across 290member schools. Division III provides no athletic financial aid to its 436 schools. TheNCAA also contains ninety-five member conferences in all three divisions. Overallmembership—counting schools, conferences and related associations—is 1,273.

84MISSISSIPPI SPORTS LAW REVIEW[VOL. 3:1divisions. Division I, which is comprised of the largest schoolswith the most extensive athletic programs, is the primary target ofthe litigation.The NCAA exists to ensure a level playing field in collegiateathletic competitions and to administer championships25 and theassociation proclaims commitment to the best interests of thestudent-athletes’ education, welfare, and athleticism.26As the governing body of intercollegiate athletics, the NCAA’smission has been to ensure a “clear line of demarcation” betweenintercollegiate athletics and professional sports in order “tomaintain intercollegiate athletics as an integral part of theeducation program and the athlete as an integral part of thestudent body . . . .”27 The Association has extensive rulesgoverning student-athlete eligibility in furtherance of its principlethat “[o]nly an amateur student-athlete is eligible forintercollegiate athletics in a particular sport.”28 Among these rulesare academic eligibility standards as well as prohibitions on theuse of agents, involvement with professional teams, outsideemployment, and receipt of pay for participation in athletics or forpromotion of commercial items or activities.29While NCAA rules prohibit payments to student-athletes,institutions may award athletic scholarships not to exceed theactual costs of tuition, room and board, required books, andDivision I is further subdivided based on football affiliation. The Football BowlSubdivision (“FBS”) is comprised of 125 schools with football programs participating atthe highest level of intercollegiate football competition and is characterized bypostseason competition play outside the NCAA structure (such as invitational “bowl”games) and by higher financial aid allocations. The Football Championship Subdivision(“FCS”)

2013] Gamechanger: NCAA Student-Athlete Likeness 81 In re NCAA Student-Athlete Name & Likeness Licensing Litigation is a consolidated lawsuit that arose principally from two federal lawsuits filed in California in 2009 against the NCAA, EA, and the CLC: Keller v.Electronic Arts, Inc.,13 and O’Bannon v. National Collegiate Athletic Ass’n.14 These cases attack the

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