NCAA Legal Issues

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Publish date: Sep 26, 2012

NCAA files new pleadings,
responds to misleading reports

By Donald Remy
NCAA Executive Vice President and General Counsel

In recent days, the selective release of misleading information in relation to a lawsuit has created much confusion. For background, a group of former student-athletes sued the NCAA because they claimed the Association prevented them from profiting from their likeness after they graduated, while at the same time supposedly selling their publicity rights.

O’Bannon case timeline

In 2009, former Nebraska student-athlete Sam Keller filed a lawsuit claiming the NCAA prevented him from profiting from his likeness after he graduated. The lawsuit later was consolidated with separate cases filed by former UCLA basketball student-athlete Ed O’Bannon, former Cincinnati basketball student-athlete Oscar Robertson and others.

Here is a review of the case
and how the NCAA has responded.

Let’s be clear: this claim is not based in fact. The former student-athletes concede as much in their sworn testimony.

This week, the NCAA filed public pleadings in this case, which make clear the claim is based on a theory not supported by the facts.

The simple, straightforward truth is that the NCAA has never licensed student-athlete likeness or interfered with their ability to sell or license their collegiate likenesses.

Discovery has revealed what the NCAA has maintained throughout: those claims simply are not true. Plaintiffs themselves have admitted the NCAA has never interfered with former student-athletes’ ability to sell or license their collegiate likenesses. In fact, these former student-athletes and others have been paid for the use of their likeness and college experience in everything from movies, ads and books, to trading cards and bobbleheads.

NCAA filing excerpt: Sworn deposition of former Alabama student-athlete Tyrone Protho

Q: Has the NCAA ever suggested to you that you’re not allowed to sell your name or likeness?

A: No.

Q: You’re free to do that?

A: Yes.

Q: You’re free to do that, right?

Q: You’re free to do that?

A: Yeah.

Q: And you’ve done that . . . right?

A: Yes.

NCAA filing excerpt: Deposition of David Lattin, former student-athlete at Texas Western

Q. What were the terms that you came to with ESPN?

A. The terms were that Bobby and I were going to get a hundred thousand dollars a piece, around a hundred apiece for participating.

Q. All right. So you agreed to grant ESPN certain rights, correct?

A. Correct.

Q. And again, were you granting them the rights to use your name, likeness, life story in connection with your playing days at Texas Western?

MR. CLOBES: Objection to form.

THE WITNESS: Don't remember, don't recall.

BY MR. BOYLE: Q. But they were going to pay you a hundred thousand dollars a piece, correct?

A. Correct.

Q. Did you --

A. Plus royalties.

Q. What was ESPN going to do with those rights? Were they going to make a movie, was it a documentary?

A. Movie for TV.

Much of the information released in the past week was taken out of context and reflected the views of people speculating about the NCAA's licensing practices, or what changes might be made to NCAA rules.

This speculation did not reflect the NCAA's actual rules and practices, possibly because that evidence completely undermines plaintiffs' claims. As is evident in the NCAA's filing, it is indisputable that the NCAA has never licensed EA Sports to include student-athlete names, images or likenesses in its video games.

NCAA filing excerpt: Sworn deposition of Peter Davis, NCAA director

Q: Would you read paragraph 1 for the record, please.

A: Yes. Paragraph 1 reads, "Current NCAA student-athletes with athletics eligibility remaining or their names, pictures, or likenesses may not be used in any advertising, marketing, or communication activities."

Q: Based on your years of experience at the NCAA, is that a correct statement of NCAA policy?

A: Yes, that is a correct statement.

Q: Based on your years of experience at the NCAA, has that been a consistent practice of the NCAA?

A: It has been. And I should point out that although these guidelines have been revised from time to time, that -- that piece has not changed.

Further, the NCAA does not obtain waivers from student-athletes related to the EA games because it neither authorizes nor permits those games to use the names, images or likenesses of current student-athletes.

It is worth noting how little these supposed revelations have to do with the case that plaintiffs have been claiming to bring for the last several years.

While the public shorthand for this is the “O’Bannon case,” it now it appears that Mr. O'Bannon's lawyers are largely abandoning him, as well as Bill Russell and Oscar Robertson, and looking for other plaintiffs, hoping they may succeed with new claims.

The NCAA remains confident it will prevail when this case is appropriately tried: in court, with all the evidence.