Ten Student-Athletes Sue Over Likeness Use

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     NASHVILLE (CN) – Ten former college football and basketball players, nine of them from Tennessee, have filed a class action lawsuit claiming their images were improperly used without their permission.
     The lawsuit comes on the heels of high profile victories for student-athletes in the courts, but also just days after the U.S. Supreme Court declined to take up the rights to publicity question this term.
     The lawsuit targets ESPN, the four major television networks and eight NCAA athletic conferences, and licensing companies with ties to the athletic conferences.
     The plaintiffs include former Vanderbilt, Tennessee, UT-Chattanooga and Washington football players as well as Tennessee State and Maryland Eastern Shore basketball players.
     In their complaint they argue that the television networks, athletic conferences and licensing agencies, conspired to exploit rules forbidding student athletes from “competing in the marketplace for the value of their rights to publicity.”
     The plaintiff’s claims are similar to those contained in a lawsuit filed by former UCLA basketball player Ed O’Bannon.
     In August a federal judge ruled in O’Bannon’s favor, finding that NCAA limits on what players can receive for playing sports violates antitrust laws. The case is now on appeal before the 9th U.S. Circuit Court of Appeals.
     The lawsuit comes a month after a federal judge in San Francisco approved a $60 million settlement for student-athletes who appeared in NCAA-branded video games since 2003.
     In this case the plaintiff’s contend that “[t]he alleged ‘release’ that the Student Athletes are forced to sign as a condition of playing football or basketball in college is void as a matter of public policy, unconscionable, and vague, and therefore void and/or unenforceable.”
     Specifically, they take issue with wording on the form that purports to allow the NCAA to use the student-athlete’s name or picture to “generally promote” its championships, events or programs.
     According to the plaintiff’s, “The meaning of ‘generally promote’ is not defined, rendering Student Athletes uninformed as to what they are signing.”
     “Defendants’ use of student athletes’ names, images, and likenesses is unauthorized because student athletes have not legally assigned their publicity rights to defendants, the NCAA, or third parties acting on behalf of the NCAA,” the complaint states. “The waiver student athletes are required to sign … is the linchpin of defendants’ unlawful conduct and is invalid or otherwise unenforceable.”
     The plaintiffs say that “[t]he conspiracy between and among the broadcast defendants, licensing defendants, conference defendants and the NCAA has created a marketplace resembling a plantation type arrangement where defendants financially benefit in the collective amount of billions of dollars, while student athletes, the driving force of college sports, receive nothing more than their cost of attendance.”
     “This conspiracy has created an anticompetitive marketplace in which all defendants commercially exploit the substantial value of each student athletes’ images,” the plaintiffs say.
     They are seeking unspecified general damages, treble damages, a disgorgement of all profits the defendants earned through the wrongful use of their likenesses, declarative and injunctive relief, and attorneys fees.
     They are represented by Stephen Zralek and John Branham of Bone McAllester Norton PLLC in Nashville; Richard Manson and Ronald Stewart of Stewart, Johnson, Conner & Manson LLP, of Nashville; and Patrick McMurtray, of Christiana, Tenn.
     Last week, the Supreme Court denied video game-maker Electronic Art’s bid to appeal a 9th Circuit ruling for a class of college athletes led by former Nebraska and Arizona State quarterback Sam Keller. Keller sued the NCAA and Electronic Arts (EA) in 2009 for using his image and likeness to increase profits for its NCAA-branded football and basketball video games.