My friend Richard Bergovoy has finally come in from the cold and, since January, has been publishing The Licensing Law Blog.
Richard’s smart, he’s funny, and he knows his stuff. My choice of the day: The creepy hand of the NCAA as it grips the neck of its means of production–student athletes–and the attempt to pry that grip off by a fellow who seems bound, for better or worse, to be remembered as the Curt Flood of college sports:
One of the foundations of that industry is that college athletes are required to sign documents that relinquish in perpetuity their rights of publicity for college sports-related purposes, as a condition of participating in NCAA-sponsored college athletics. That means the NCAA can, without compensation to the athletes, license their names and images for apparel, video games, broadcasts, and highlight DVDs, long after they have graduated from college.
Ed Oâ€™Bannon, a former basketball star at UCLA during the 1990s, said he got angry seeing his highlight clips from 15 years ago being used to promote NCAA broadcasts, so last July he filed a class action lawsuit against the NCAA and CLC in federal District Court in San Francisco on behalf of himself and other former student-athletes. . . .
[I]f Oâ€™Bannon wins, the NCAA, CLC, and many college athletic departments could take a large financial hit. They all derive substantial revenue from that $4 billion in licensing fees, but the Oâ€™Bannon plaintiffs would claim a major (as yet unspecified) chunk as compensation to former student-athletes whose rights of publicity were utilized in licensing deals. In fact, antitrust law allows victorious plaintiffs to triple their damages. And of course the former college athletes would have the right to cut their own licensing deals going forward, independent of the NCAA and their alma maters.
Furthermore, if Oâ€™Bannon wins, it is possible that current college athletes might utilize the rationale in any Oâ€™Bannon victory to attempt to weaken or throw out the current system of signing their rights of publicity over to the NCAA and CLC. For example, if the court were to rule the waivers were defective because the NCAA failed to advise students that they should seek legal counsel before signing away rights to future compensation for their intellectual property, then current athletes might argue they too should have the right to be represented by counsel in negotiating rights waivers during their college playing careers. Then star college athletes could get embroiled in contract negotiations, just like professional athletes.
Though somewhat drunker. But, yeah.
Read Richard’s blog!