IP Law Daily, PUBLICITY RIGHTS NEWS: Michigan football stars take on NCAA over publicity rights, but will they go home blue?, (Sep 11, 2024)

By Matthew Hersh, J.D.

The claim raises thorny questions over the right of athletes to their own on-field performances.

The NCAA unlawfully conspired to restrain the rights of student athletes to trade in their rights of publicity and then unjustly enriched itself to the tune of tens of millions of dollars by monetizing television replays of their on-field exploits, a new federal lawsuit contends. The lawsuit, brought by four former University of Michigan football stars on behalf of a broader class of former NCAA athletes allegedly harmed by the same conduct, will raise eyebrows because it goes beyond traditional publicity rights such as sponsorships or endorsements and raises what one prominent federal court has called “the thornier questions of whether participants in live TV broadcasts... have enforceable rights of publicity” (Robinson v. National Collegiate Athletic Association, No. 2:24-cv-12355-TGB-DRG (E.D. Mich. filed Sept. 10, 2024)).

The lawsuit comes at a time when the NCAA and its member organizations have been roiled by considerable turmoil in the wake of O'Bannon v. Nat'l Collegiate Athletic Ass'n, 802 F.3d 1049 (9th Cir. 2015). In that case, the Ninth Circuit found that a key segment of the NCAA’s amateurism rules—those prohibiting student-athletes from being paid for the use of their names, images, and likenesses, or NIL—were an unlawful restraint of trade in violation of Section 1 of the Sherman Antitrust Act. O’Bannon was followed not long after by Nat'l Collegiate Athletic Ass'n v. Alston, 594 U.S. 69 (2021), in which a unanimous Supreme Court found that another element of the NCAA’s amateurism rules—in this case, a rule limiting the size of scholarships that member schools could give to athletes—also violated antitrust law.

The NCAA moved within days after the O’Bannon ruling to overturn its rules on NIL, announcing a rule change in June 2021 that allowed college athletes to have an immediate opportunity to benefit from their name, image and likeness. But the rule change was not retroactive, and it did not define the scope of NIL, which remains governed by state law. In the O’Bannon case, the district court identified three NIL rights that had been restrained by the NCAA’s conduct, namely compensation to players for their use in video games, compensation to players for their appearance in live game broadcasts, and compensation for archival footage. But the court of appeals affirmed only on the question of video games. “We therefore do not reach the thornier questions of whether participants in live TV broadcasts of college sporting events have enforceable rights of publicity or whether the plaintiffs are injured by the NCAA's current licensing arrangement for archival footage,” the court noted.

The Michigan lawsuit now puts squarely at issue one of these questions—that of archival footage. The four athletes in the lawsuit—former quarterback Denard Robinson, former wide receiver Braylon Edwards, former defensive lineman Michael Martin, and former linebacker Shawn Crable—“have made significant contributions, with their game-winning plays and electrifying performances frequently featured in highlight reels and promotional content,” the complaint asserts. Indeed, the complaint recites, “Robinson's electrifying ‘Shoelace’ moments, Martin's defensive dominance and his iconic celebration after a triple-overtime victory—broadcast repeatedly across the country by BTN and other networks—Edwards' spectacular catches, and Crable’s game-changing defensive plays, including the unforgettable hit on Ohio State's Troy Smith that has been replayed thousands of times.” But while the NCAA generates substantial revenues from this archival footage, the complaint alleges, “the student-athletes whose blood, sweat, and tears drive this revenue see none of it.”

The lawsuit also takes aim at the Big Ten Network, the Fox-affiliated network headquartered in Chicago. Since its inception, the complaint asserts, BTN has profited substantially from the broadcast and commercial distribution of football and other collegiate sporting events—including “includes live games, replays, highlight reels, documentaries, and promotional content featuring student-athletes from the University of Michigan and other Big Ten institutions.” Despite these lucrative activities, the complaint asserts, “BTN has failed to provide any form of compensation to the student-athletes whose names, images, and likenesses it regularly exploits for profit, contributing to the broader systemic exploitation within collegiate athletics.”

The lawsuit alleges that the conduct of the NCAA and BTN constituted unreasonable restraint of trade, a group boycott/refusal to deal, and a conspiracy to restrain trade. The lawsuit also alleges that by retaining the use of the student-athletes’ NIL without compensation, the NCAA and the network have unfairly enriched themselves while depriving those athletes of rightful compensation. The lawsuit seeks certification of a class defined as: “All persons who were NCAA student-athletes prior to June 15, 2016, whose image or likeness has been used in any video posted by or licensed by the NCAA, Big Ten Network, or their agents, distributors, contractors, licensees, subsidiaries, affiliates, partners, or anyone acting in concert with any of the foregoing entities or persons.”

The Case is No. 2:24-cv-12355-TGB-DRG.

Judge: Berg, T.

Attorneys: James R. Acho (Davis & Acho PLC) for Denard Robinson.

Companies: National Collegiate Athletic Association

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