I was, uh, at a friend's house and saw my likeness on a video game that his kid was
playing.
I initially thought it was pretty cool and was flattered, quite honestly.
But then it was brought to my attention that they had paid for that video game and I didn't
get any type of compensation or even, uh, permission to use my likeness on that video
game.
It was his height, his race, his skillset, his jersey number,
everything but his name.
He raised this question of how is it possible that years and years and years after I, I
played that the NCAA can continue to earn revenue off of my names, images and likeness,
and, and not even consult me on that?
He saw himself in this video game and he realized, "This is very odd.
Here's a video game that makes millions of dollars, in part because it does a good job
of mimicking your favorite college sports stars.
Nobody ever asked me.
Nobody ever paid me for it.
Um, because, when I became an NCAA athlete, I signed away all my rights to my image and
control."
So Ed O'Bannon sued in order to regain the rights and compensation from that.
And that morphed into a more general suit.
The NCAA's original purpose at the time of its founding was to respond to violence in
football and to make the game safer and to protect the health and safety of athletes,
primarily football players.
Today on the NCAA's website, there are three priorities that they list: academics, well-being,
and fairness.
And yet, when they get into court battles, they tend to argue that they actually don't
have a duty to do that.
The case began with two sets of issues.
One was an antitrust claim, that schools and the NCAA join hands in an anti-competitive
conspiracy to limit the value of college athletes' name, image, and likeness to zero dollars.
The other prong of the case was an intellectual property prong, and specifically the right
of publicity, the idea that all of us have a certain right, intrinsic right, in our identity,
whether it's our name, whether it's our likeness, whether it's our image, whether it's our voice,
whether it's our uncommon expressions, things like that, that there's value in everything
that makes us who we are.
And the argument was that the NCAA has profited from individuals' values in ways that were
unlawful.
The main focus initially was to spark conversation and really, uh, get people to talk about what
we felt college basketball, the conversation that we felt that fans and administration
should be having.
And that is not only do you control your likeness as a college athlete, but do you get paid
while you're in school while bringing in millions and up to billions of dollars for these universities?
In O'Bannon the argument was you're ultimately competing businesses.
And a rule that sets at zero the value of name, image, and likeness isn't compatible
with any precedent.
Nowhere else in the US do we say we can use your name, image, and likeness and not pay
you anything.
The intellectual property issues were resolved in a settlement.
The antitrust issues remained and, and went to trial.
And Ed O'Bannon won the trial.
This was the first major antitrust decision against the NCAA.
Ed O'Bannon has come to symbolize a more general set of legal questions about whether or not
athletes should be paid both for their likeness and images, which is the core of his case,
but also it has, even if it's not the heart of his case, it's come to symbolize the bigger
question of whether or not athletes should be compensated for playing.
Colleges join hands through the NCAA, and through the NCAA they create rules that are,
the colleges would argue are designed to ensure that there's fairness, are designed to ensure
their college athletes are amateurs and not professionals.
But in doing so, they create rules that many would argue are anti-competitive.
One of the reasons college athletes can't even have jobs during the school year is because
there were so many empty jobs that were being offered by boosters that we've had to put
a stop on it.
The fact that we can't control certain people from corrupting the system from the outside
means that we have over-inclusive laws just to stop the system from becoming a free market.
The core of the antitrust rules is that unlike Google versus Microsoft, if we want teams
to be competitive, we have to allow them to collude and restrict their ability to just
act as free market actors.
So you get special protections because the very nature of the enterprise is such that
you would be destroying it if you allowed the free market to take over.
The was the first major antitrust decision against the NCAA.
The NCAA for years has felt confident that it could win under antitrust law.
And this case showed the NCAA no, you lost.
The court actually said the NCAA doesn't have to pay athletes, they're not true employees,
um, but ended up deciding that the individual leagues could expand their compensation for
athletes, uh, to take into account certain things, most particularly the true cost of
attending.
The lawsuit put pressure on the NCAA.
And the NCAA, many would say because of the lawsuit, allowed colleges to give the, what's
called the full cost of attendance.
And the full cost of attendance is a figure that's determined by the federal government.
It reflects cost of living and other aspects that, for years, colleges weren't able to
give student athletes.
Now they can.
We should stay focused on making sure that student athletes get an education.
As we professionalize sports, it becomes more and more divorced from the academic project,
right?
That these young people are less and less like students.
And my concern is those who bemoan the way in which college athletics exploits young
people, in particular young men of color, asking for them to be paid is not to reverse
that trend.
Athletic scholarships are not free.
If you're working 60 hours a week in your sport, that is not a free education.
For many, many years the NCAA argued, and continues to argue, that college athletes
are just like every other student on campus.
And that's simply not true.
They're, they're not recruited in the same ways.
They are not retained in the same ways.
They may not be able to pursue the degree that they wanted to pursue as a result of
that athletic scholarship.
Times have changed.
Uh, the, the game has changed.
The amount of money that is made has changed throughout the years.
The only thing that hasn't changed is the fact that these athletes, uh, receive a portion
of the ... Some of them would like to see the athletes receive something, other than
just the scholarship.