Ed O’Bannon’s four-year-long lawsuit made a huge step a few weeks ago when O’Bannon and EA agreed on a settlement (previously discussed here). The settlement was a big win for the plaintiffs but also for student-athletes in general. It is one step closer to athletes being able to protect the rights to their images and likenesses after the media has been making billions off of their popularity while the athletes themselves make nothing. In addition to this small victory, it is possible that a second, perhaps bigger, win for college athletes will result from this settlement as well. If the NCAA allows student-athletes to receive their share of the settlement money from EA while keeping their eligibility, what could follow are big changes in the NCAA’s rulebook. Although the NCAA is against this outcome, their recent decision in Johnny Manziel’s trademark case appears to set precedent making this very likely to happen.

Once the O’Bannon and EA settlement is approved, the question of who actually receives the money and when they receive it will be answered. This decision could have a great impact on the recent disapproval of the NCAA’s longstanding rule that athletes are not allowed to receive any outside benefits, such as a salary or prize money, without losing their amateur status and, consequently, their eligibility. Recently, this has become a prominent issue with athletes continuously getting caught and punished for receiving money for their autographs, or other underhand benefits from recruiters and agents. Instead of agreeing with the NCAA, the public opinion holds that this rule is archaic because allowing schools to make millions while keeping their athletes from seeing a dime is illogical and unfair. This appears to be the beginning of a much-needed NCAA reformation.

The NCAA’s amateurism rule specifically came into question after Johnny Manziel’s trademark case. College football player Johnny Manziel brought a trademark infringement suit over the use of his trademark, “Johnny Football,” and won both an injunction and damages. Following the decision, the NCAA ruled that Manziel could receive the monetary damages and still remain eligible. The basis of their decision was that the suit was not a tactic to get around the amateur-status rule and get Manziel improper benefits. (A situation in which athletes were paid directly by agents for recruitment purposes might have a different result.) But doesn’t the O’Bannon suit mirror what happened in Manziel’s case? The suit is not designed to give athletes unjust benefits. In fact, it was initiated to do the exact opposite: to make sure others don’t unjustly benefit from the athletes’ images and likenesses. Logically, then, the outcome should be the same.

With this in mind, the big question remains: if the settlement is approved, will the NCAA actually allow student-athletes to receive their rightful compensation for their likenesses without losing their eligibility? If the NCAA had its way, the answer is no. The NCAA remains adamant that athletes will never be able to receive additional benefits for being a college athlete. However, their decision in Manziel’s trademark case seems to give it little choice but to allow athletes to maintain their amateur status while receiving EA’s settlement money. This effectively allows athletes to receive benefits as a result of being a college athlete, and could eventually open the door for student-athletes to receive other outside money, finally causing the NCAA to reform its outdated rules. If the settlement is approved and student-athletes are allowed to receive money from EA, this would be a huge step toward college athletes receiving what they rightfully deserve, instead of all of it being directly funneled into the schools and the NCAA itself.

Brittany Burnham

Image Source

[We contend this noncommercial reference is a nominative (or other) fair use of this trademark. --Ed.]

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One Response to O’Bannon and EA Settlement: More than One Win for Student-Athletes?

  1. Zachary Loney says:

    Unfortunately for the athletes, the judge limited the class action damages to future uses on television and video games. It is still a step forward for the players, but the NCAA’s risk has become much more manageable.

    Perhaps the best compromise is giving the students the right to their likeness and name and the NCAA the right to the logos and trademarks. You need both the name “O’Bannon” and the UCLA colors and marks to sell the jersey.

    I would love to read a more in depth analysis on celebrity or publicity rights for athletes in video games, etc. It seems that the name and likeness could be considered mere facts borrowed from the real world. Absent any indication of endorsement of the product (e.g., picturing a player on the cover) it seems that the video game is merely incorporating the world in which we live. For example, a video game referencing Seal Team 6 does not seem to foster the idea that the military, team, or individual members endorsed the game. From this perspective, it seems that anyone should be able to use the likeness.