Trilogy wrap

on .

Approximately nine years since a fateful meeting in a doctoral student’s office at Indiana University Bloomington, when the seeds were planted for this research stream, it is necessary and somewhat fulfilling to reminisce and reflect on the collaborative work that has taken place. I feel truly fortunate to have run into the research questions graduate students and I handled back then, and immensely grateful for the opportunity to serve conscientious and inquisitive young minds, while developing an empirical legal studies’ line of inquiry, which yields several useful contributions to both scholarship and practice.

Quite a bit has happened since those early days of the initial examination of NCAA student-athletes’ rights of publicity, the use of their likenesses in video games, and the various claims the three participants in that fall 2004 meeting and several coauthors in ensuing work forecasted. After some fundamental intellectual property theory and NCAA amateurism concepts’ analysis and presentations between the time of the initial meeting and the spring of 2009, in an eerie twist of fate, as the first paper from this stream was under review, the first case (Keller) was in fact filed, in May 2009. Weeks later the first part of our trilogy was published, and a few weeks subsequent to our first publication from this stream the O’Bannon complaint followed. Our research team continued working along this intellectual property and empirical legal research stream, and in the fall of 2011 we were happy to receive our second article’s acceptance.

Finally, almost four years since the commencement of the research investigation focusing on video-games’ consumer surveys and NCAA student-athletes likenesses, we have closure. This last paper marks the final part of our trilogy, encompassing the 2009 intellectual property theory piece, the 2012 student-athlete survey empirical article, and the latest manuscript featuring the consumer survey, published this spring. In the process there were a few interesting procedural lessons and insight gained (more analysis on academic research and third-party subpoenas, unretained experts, and scholars rights, will ensue in forthcoming scholarship).

Through a research stream that took about a decade to develop, delivering what we hope will be meaningful contributions to practice, scholarship, and thinking about these issues, we certainly learned a lot. We were intrigued to see these questions come up in litigation, research extensions by colleagues (initial publication citations’ link here), and policy reform movements within the NCAA membership. There surely is a lot more work ahead, and it will be truly fascinating to observe such developments in months and years ahead. 

What did we learn from all this? A brief summary follows:

From the first manuscript, focusing on intellectual property theory, NCAA student athletes’ right of publicity, NCAA amateurism policy, and Ninth Circuit right of publicity jurisprudence, in a nutshell:

  • Student-athletes possess common law and statutory rights of publicity
  • Absent consent and other defenses these rights are rendered protectable
  • There are several ways commercial products’ manufacturers and in particular video game companies associate themselves with NCAA institutions and student-athletes, not the least of which is (at a minimum) tacitly condoning the in-game use of likenesses (a priori in the game) and names (a posteriori added to the game via users, third parties, and manufacturer-established gamers’ networking means)
  • Even without direct reference to names and likenesses, identities of student-athletes (via jersey numbers and the respective teams’ rosters each year) are good indicators of the relationships between institutions, NCAA, and commercial partners
  • Electronic Arts is dominant in the college sports video game market. Theoretically, under Noerr-Pennington, it may be relieved from any unfair practices claims and antitrust liability, absent malevolent intent and bad faith whilst approaching standard-setting bodies, such as the NCAA and professional leagues, with rules changes recommendations
  • As of March 2013, there is no treatment in NCAA amateurism policy for the present use of student-athletes’ likenesses in commercial products such as video games
  • Student-athletes annually confirm in writing that they maintain amateur status (as defined and with permitted exceptions in NCAA bylaws). Whether there is an implied consent to the present use of their likenesses and identities will be an interesting aspect of litigation. Considering the broad scope of consent student-athletes submit to the NCAA and member institutions, the NCAA stands a good chance of maintaining the traditionally successful defenses of upholding amateurism, self-governance, and exemption from constitutional scrutiny. In other words, the private association’s regulatory authority may prevail if courts are convinced that a generic release signed annually by student-athletes encapsulates the underlying commercial use of their likenesses and identities at the heart of the pending litigation. If, on the other hand, courts hold that the particular use goes beyond what has been regulated by NCAA amateurism policy and embedded in student-athletes’ annual releases heretofore, then plaintiffs’ rights of publicity burden of proof will be partly met (i.e. they did not consent to such use).
  • CBC v. MLBAM’s scope may be tested by the Ninth Circuit, although the nature of the alleged violation of plaintiffs’ rights of publicity is not the same (names and statistics in CBC, likenesses and identities In Re Student-Athlete Likeness Litigation). Were the judges on the Ninth Circuit to side with Chief Judge Kozinski’s dissenting opinions and render likenesses and identities of student-athletes as used by video games manufacturers not protectable (e.g. under a “transformative use” test), CBC’s scope would be extended, affording public domain theory and First Amendment protection to a vast array of commercial uses of intellectual property rights
  • The doctrine of licensee estoppel may impact the case, should it be held that NCAA’s license cannot be challenged; alternatively, interested entrepreneurs may wish to follow this case closely, in view of (subsequent) expanded free use of student-athletes’ likenesses and identities that would invariably follow
  • Considering recent class action suits and eventual settlements (see e.g. White v NCAA), the pending suit’s prospects are good for certification
  • Student-athletes can make a “federal case” out of related claims, via the Federal (Lanham) Act’s § 43(a) false endorsement provisions; to accomplish this, it would be crucial to establish a likelihood of consumer confusion in regard to student-athletes endorsing such commercial use.

Key results from the second study (3,215 football and men’s basketball student-athletes’ survey) were:

  • Almost 54% of 272 respondents believed they were endorsing the video games
  • Approximately 54% understood that signing the “student-athlete consent” form granted the NCAA permission to generate revenue from their image/likeness through the sale of video games, and 42% believed there should be a separate waiver
  • Close to 90% of athletes like being in EA Sports’ video games, and 66% felt the way the NCAA and its commercial partners use their image/likeness is fair
  • However, only 31% of respondents believed that their athletic scholarship was sufficient in exchange for the use of their identity
  • Further, 64% believed they should receive additional compensation in exchange for their image/likeness
  • Importantly for current NCAA legislative motions toward increasing the amount student-athletes are awarded as part of their financial aid, over three-quarters of student-athletes held that their current scholarships covered the majority of their costs
  • Fewer than 12.5% of surveyed student-athletes recognized the various available supplemental funds by the NCAA/member institutions, and a total of only three student-athletes were familiar with White settlement funds (White v NCAA was the “full cost of attendance” class action).

Key findings from the third and last act of our trilogy (the NCAA football game consumer study) were:

  • This study’s finding that 24% of 422 participants correctly identified local college players, and 50% recognized nationally-known “marquee” players (moreover, three popular quarterbacks of the game’s release year were identified by 72.5%, 79%, and 91% of all participants respectively) may prove to be dispositive for certain student-athletes’ legal claims. Such results may support plaintiffs’ rights of publicity violation claims, as long as other factors (including lack of consent to the particular use of these likenesses) also are established. In sum, such findings ascertain identifiable commercial value for student-athletes’ likenesses and identities
  • Further, 10% of all respondents were under the impression student-athletes were in fact endorsing the products and 15% of all respondents were uncertain, for a combined quarter of the total number of participants. Considering ample precedent and survey evidence samples from intellectual property litigation, a 25% finding establishing the likelihood of consumer confusion in respect to student-athletes’ endorsement of the video games is meaningful for successful false endorsement claims
  • Three-quarters of the study’s respondents held the position that student-athletes should not receive additional compensation above their athletic scholarships
  • A majority of the consumers in this survey (56%) considered the presence of “real” players featured in the game as an important factor for their intent to purchase the video game. Furthermore, 42% of respondents indicated that the ability to download or input real player names was important for their game purchase intent
  • In this particular (college football) video game examination, 43 out of the 48 digital players involved in the study had a “real” counterpart player, whose current institutional roster number and position matched their digital equivalent.

I want to thank all the co-authors and colleagues who have helped along this process. It has been a great run. As our research teams move on to other areas of investigation and scholarship, I hope more profound thinking and action takes place around these legal and policy issues affecting student-athletes. We will keep monitoring.