Wednesday, July 19, 2017

O'Bannon Fallout as College Athletes Start to Sue Their Employ... er, Colleges

Chris Spielman, standout player for the Ohio State Buckeyes and now a television analyst, is suing his alma mater, and several sports marketing and business powerhouses over the use of his likeness in advertising and marketing.  The suit seeks class status for all OSU athletes whose likenesses are being used without their consent and without compensation.

The lawsuit is worth a read just to see the extent to which these players' names and images are used to boost ticket and jersey sales among university faithful.  Here's a sample from the Complaint (emphasis added):

"5...Former OSU student-athletes, as defined under the Class herein, do not share in these revenues even though they have never given informed consent to the widespread and continued commercial exploitation of their images. While OSU and its for-profit business partners reap millions of dollars from revenue streams including television contracts, rebroadcasts of "classic" games, DVD game and highlight film sales and rentals, "stock footage" sales to corporate advertisers and others, photograph sales, and jersey and other apparel sales, former student-athletes in the Class whose likenesses are utilized to generate those profit-centers receive no compensation whatsoever. (See Exhibit A). Despite the holdings in the O’Bannon v. NCAA, 802 F.3d 1049 (N.D. Cal. 2015), and without the consent of the Class Members and/or Plaintiff, OSU has entered into various licensing partnerships that unlawfully utilize the images of Plaintiff and Class Members, by and through Defendant IMG College, and as further detailed herein. The related available content featuring likeness of former student-athletes in the Class, such as DVDs, photos, and banners, and merchandise, continues to grow in both availability and popularity, and the growth will continue to explode as merchandise continues to be made available in new delivery formats as developing technology and ingenuity permits, as exemplified by the substantial library of "on demand" Internet content now available for sale for OSU games as well as jerseys on OSU’s website."

This could be an interesting case if it goes all the way to trial.  My bet is that OSU tries hard to settle with Spielman, to retain some control over the process and the revenue stream.  Spielman has an incentive to settle as well--O'Bannon isn't controlling law in Ohio (O'Bannon is strictly a Ninth Circuit case affecting the West Coast region), and he could easily find himself on the losing end of a Circuit court split in authority.  Stay tuned.

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