Tuesday, February 09, 2010

Flutie could be key benefactor in O'Bannon case

For those not following it, former UCLA basketball star Ed O'Bannon is suing the NCAA for not sharing revenue generated from his likeness. This is a potential huge lawsuit impacting thousands of former college athletes given the millions of dollars of royalties at stake. As for Fluite, being part of one of the most famous plays in college football certainly has its benefits, but Doug does not receive any money from the NCAA. So every time that highlight is shown, ever time his picture is put on some memorabilia or he is used in a video game, he does not get paid but the NCAA does. Heck even Phelan and Bicknell Jr could be on the receiving end of some nice pay days due to their involvement.

I know there are many lawyers who read this blog, so feel free to chime in in the comments. Although O'Bannon brought the case, I imagine the class action nature of the suit will complicate things and dilute some payouts. But Flutie definitely should have money coming to him given how much others have made off of his play over the years.

I don't think this will change the nature of paying current student athletes. Hopefully it will be resolved with some clear guidelines for future use. These kids put a lot on the line and deserve to share in some of the wealth they generate.


mod34b said...

This type of legal claim is pathetic. Sue, sue, sue.

When will people stop thinking of the law as a form of winning the lottery. ATL, sorry to say, but comments like this are bogus: "But Flutie definitely should have money coming to him given how much others have made off of his play over the years."

Please. Flutie also derived huge benefits from the same publicity you are now suggesting he sue on. There also is the issue of the statute of limitations (something like 3-6 years from injury to bring a claim)

Doug is a classy guy and he knows he did very, very well from the publicity surrounding his outstanding career. I'd be shocked if he went in for this sort of nonsense.

Bravesbill said...


The statute of limitations would not have expired yet considering those Flutie highlights and memoribilia are made every year. Every time a hihglight is aired or memoribilia is made that the NCAA profits from, Flutie can claim economic injury. From a non-legal standpoint, I hope the NCAA gets hit hard to knock it down a few pegs. This high and mighty organization thinks way too highly of itself.

ATL_eagle said...


I don't think Doug would lead a suit but he certainly might benefit from the ruling. Think of the millions the NCAA has made off of him and his likeness. Doesn't he deserve a small share of that?

Unknown said...

I'm not very familiar with O'Bannon's case, but I do know a little bit about Sam Keller's. Keller has a problem with the NCAA licensing video game rights to EA sports, while using a "his" likeness.

The NCAA forbids any names be used, but when you go into the games rosters and OLB #94 is BC's best player with a the same height and measurement as Mark Herzlich it is difficult to make a case that it is anyone other than Mark. Add to this the fact that within a week of the games release EA allows you download new rosters with player name's added and I think Keller has a case.

In any of the prosports the player's union works out a deal with the game's producer. If a player isn't in the union then you he isn't in the game. There was always a made up player(who, in no way resembled him, other than skill) to take his spot in the Giants line up.

NCAA athletes don't have a union. They don't even get the treatment that Barry Bonds receieved by having a player not come close to resembling him. What they do get is a governing body that exploits them at every turn.

Unknown said...

I'm pretty sure the NCAA's prodigious legal team has drawn up some contract signed by every athlete that cedes all of these rights away. They get scholarships in exchange. It's the same problem you get with any contract of adhesion--the terms suck but everyone uses them.

What I personally find disgusting is the blatant money-grabbing behavior exhibited by NCAA football in general (is there one bowl left that doesn't have some stupid sponsor?) whilst simultaneously fainting with disgust over a player getting a car or something on the side. That's pathetic. And nobody calls them on it!

This type of legal claim, while probably destined for failure, is hardly "pathetic." It's the result of inequality in bargaining position, a little bit of monopoly, and rank hypocrisy on the part of the NCAA. While they may not have a legal leg to stand on, its hard to say that the situation is equitable.

Ry said...
This comment has been removed by the author.
Ry said...
This comment has been removed by the author.
Ry said...

this is a nitpick...but in this case Flutie would be a beneficiary, not a benefactor. i was confused as hell when i first read that headline.

mod34b said...

Brave Bill -- if Flutie has a claim, he probably only would get a small amount of damages (past 5 years or so), which makes a suit not worth bothering with, particualry since he has benefitted tremendously from the publicity.

What right of publicity does an student-athlete have when there is a tape of a publicly held football game watched by millions and where the tape is owned by a network? (and he signed some scholarship papers that, as poitned out, probaly wiped out any legal rights ) Should Phelan get money too-- he caught the ball? What about the other guys on the field that day in Miami?

The pseudo-Herzy scenario seems better b/c the game maker has gone out of its way to reproduce a likness of herzy without permisison, as opposed to using essentially public TV footage.

ALT, Yes, if these sutdent athletes have rights, and there is a payout, then sure Flutie should get his share. He can also opt out of the lawsuit too.

Let me part with these words by A. Lincoln: "Never stir up litigation. A worse man can scarcely be found than one who does this."

Bravesbill said...

Mod--read the article before you make any more comments. The case is to compensate former collegiate athletes that are still being exploited by the NCAA. The case has nothing to do with the current student-athletes who most likely have signed away their rights while in college. The NCAA has sold those highlights (Flutie, Leitner, etc.) to other companies so these companies can use them in commercials to sell their products. In thise cases, the main players (Flutie or Leitner) could receive a substantial sum. Further, the likenesses of the players are still being used in the historical teams of video games ('95 UCLA b-ball team, '84 BC football team). The NCAA is making a killing from these video games, some of which is through exploiting these former college athletes. These former collegians get nothing in return. The NCAA has no right to control your image or likely AFTER you leave collegiate sports. The fact that they are making millions a year off these former collegiate athletes (while they get nothing) is pretty deplorable. As for Flutie, there's no reason why he should not pursue the class action. Since he is not a named plaintiff, he has to do none of the work but he would reap whatever monetary reward O'Bannon, etc. win. The only reason to opt out of the judgment was if O'Bannon won and he felt like he could get a bigger judgment through his own lawsuit than what he would get in his portion of the O'Bannon suit. Since class action lawsuits generally divy judgments equally, Flutie would probably be better off opting to file his own suit.

blist said...

One potential wrinkle: just like no one owns the rights to a speech (therefore we can reproduce MLK's I have a dream for free ad naseum), do athletes who play in public have the right to control how recordings of their public actions are used?
I think in the case of video recordings, the possessor of the recording has the rights by virtue of owning the physical film.
Personally I think the NCAA has too much control over players' lives (there was a student who polayed one of the major sports and also skied professionally, and they banned him from receiving sponsorship for his skiing (non-NCAA) activities.)

mod34b said...

Bravebill -- this has really brought out the devil in you! Lots of dragson for you too slay today...

We are talking about Fluties's rights to the Hail-Flutie TV clip. what right does flutie have in that clip? There is was not pseudo-Flutie-bot inserted into a game, like the O'Bannon case or Herzy cases mentioned

Bravesbill said...

Mod--If Flutie never signed a waiver, Flutie has a claim because his image or likeness cannot be used without his permission for profit by the NCAA without giving him some fee. And Flutie has been in the video games as well for years now.

mmason said...

Doesn't Brent Mussberger get a few pennies every time the Flutie piece is broadcast? He's a network personality with a union deal that probably has the words "in perpetuity" attached to his broadcast contract, and the network has to have a piece of some of this royalty payment. Why not the athletes?

Galvin said...

I would love to see the NCAA get slapped around a bit - they are unyielding, inflexible and way too often seem to micromanage student-athlete behavior (which of course is not always so virtuous). The NCAA makes a boatload of money from the performance of these kids - however, the NCAA is simply an organization of the participating schools. Regardless of professional implications, nobody is forcing anyone to become an NCAA student athlete. And they are receiving consideration in the form of free education (mostly). I am surprised that the case has made it this far, but I still do not think they have much of a case. Wild card is that David Boies firm is involved - he is an insanely efficient litigator.

Andrew said...

on another note:

does anyone know if the basketball game is on TV tonight? the official site says "RSN" (Raycom?) but I don't see it on UPN or anything.

Looks like its going to be a radio night?

eagle1331 said...

I am in the camp that no student athlete should get compensation. Why? Because they already do. Sure they work their butts of and bring in revenue (in a couple cases at BC) but they also get a free ride to a school that costs 45k a year, free books, free meals, free gear and gifts, etc. All together they're "making" 50 or 60k a year. I wish I got compensated that much for the revenue I bring in to my company.

Adam M. said...

Ivan Maisel got some feedback on recruiting and the Houston Nutt Rule from Coach Spaz in his most recent article... http://sports.espn.go.com/ncf/columns/story?columnist=maisel_ivan&id=4899549

Bravesbill said...

Student athletes should not receive compensation, although they should be allowed to get a job, etc. However, that's not the issue. The issue is whether the NCAA can use your image and likeness to make money AFTER you graduate. They should not be able to do that.

Scott said...

I know these cases well.

The Keller & O'Bannon suits have a pending motion to consolidate cases, so that current and former athletes will be treated the same.

The former players suit is the real one, which is backed by David Boies. The Keller Suit is backed by a solo practitioner by an unknown solo practitioner.

Video Games aren't the issue. The only license that EA gets from the NCAA is for the college names and logos. Players aren't a part of it, and are specifically carved out of the license. Keller also challenges whether EA has ripped off player's likenesses. There is a long-string of fantasty football/baseball decisions that says there are no privacy rights over public facts (stats, hometown, heigh, weight). The games never use faces. And games that try to replicate reality are first-amendment protected artistic renderings.

The more interesting issue is TV/DVD rights for former players ... meaning ESPN & Movie Studios.

Scott said...

By the way, statute of limitatoions doesn't run when there is an on-going conspiracy is at issue. The period is tolled each day the conspiracy continues.

mod34b said...

Interesting Scott. good to see a knowledgeable poster!

So what is the issue? Whether the very biographically similar computer player (same number, height, weight position) is an improper use of the actual former player's rights of publicity?

How do you handicap the outcome?

any issue about using old and famous video -- e..g, HailFlutie pass clip?

Unknown said...

one thing to keep in mind is that all NCAA athletes must maintain their amateur status to be eligible to compete in any NCAA events. the NCAA has invested a ton of time, money, and energy maintaining this status, and it's really hard to imagine any court saying that the NCAA should have to pay collegiate athletes. paying athletes after graduation for what they do while they are student athletes is still paying collegiate athletes. essentially, the student-athletes would be gaining a future property interest in any highlight/picture/likeness that might be used for profit in the future. It would be very hard to convince a court that this is different from paying players, when the players know that any awesome play they make could earn them money. In order for o'bannon to win, either the court would have to find that student athletes should be paid while they participate in ncaa athletics OR they would have to somehow argue that this type of payment isn't really payment.

the video game argument is weak as well. in order to prevent ea sports from using any possible identifying information or characteristics that belong to an individual player, those characteristics would have to be so inherent to that person's identity that they are almost synonymous with the individual. the players do not own the rights to the uniforms, and you cannot say that height, weight, or a "99 speed" are characteristics so unique and inherent to the players as individuals so as to constitute legally protected interests. the only possible issue would be with the faces looking too similar to the players. has anyone ever noticed that ea has a bunch of "stock" faces that they use? I'm not sure about this, but they might just make a bunch of "stock" images and then pick the one that most resembles the real person in order to protect themselves against this exact claim.

in any event, I assure you that EA and the NCAA have very, very good lawyers who have protected themselves against this type of litigation. I mean, the issue has already come up with professional athletes who don't license their personal images to video games. There is no way that their attorneys would let something like that happen.

Also, Mod: your displeasure with the legal system might be misplaced. While tort reform may be necessary and impending, you seem to ignore all of the good that lawsuits do. If O'bannon didn't have the opportunity to bring this type of lawsuit, there would be no way of protecting intellectual property rights other than criminal prosecution. If EA decided to use Barry Bonds's image and then refused to pay him, would you rather see everyone at EA go to jail rather than them being sued? Lawsuits cost money. A lot of money. And if O'Bannon's claim is as baseless and stupid as you think it is, then O'Bannon is going to lose a lot of money. Despite what you may hear about in the news, the legal system isn't overflowing with frivolous suits. Attorneys who brought them would be disbarred, plaintiffs would lose money, etc. So don't get your panties in a bundle. This is the correct forum for this dispute.

Unknown said...

I don't know Andrew. My lacrosse coach would argue that my "37 Speed" is pretty much inherent to who I am.

Scott said...

While it's true that the NCAA and EA have excellent lawyers, it's not as if they stumbled into hot water and are in need of rescue. EA and the NCAA had their excellent lawyers analyze these issues long ago, establish the boundaries, and gave them clear instructions to ensure they would stay within them.

The antitrust laws have an judicial-created exemption built into them for bona-fide amateurism, which will factor into the analysis of whether players should be paid.

The court will dismiss the per se illegal boycott claim because there are no established horizontal relationships at issue. Meaning this will get tried as a rule of reason case, where you compare the benefit to all athletes (as a group, all sports, not just Ed O'Bannon) of amateurism to provide scholarships versus pay for play.

Video game makers will be fine. This isn't a situation of a look-alike actor trying to pretend to be a famous figure. Video games are a form of art, where the strive to model and recreate reality.

As for ESPN, studios (plus EA), they are no more on the hook as co-conspirator than a gas station that buys over priced oil from the OPEC cartel. The courts won't through ESPN or EA under the bus simply because they bought rights obtained by an alleged conspiracy ... as long as ESPN/EA had no rol creating/implementing/maintaining the alleged conspiracy, they aren't connected to it.