Money and March Madness

Interview Michael McCann

Michael McCann

A professor of law and director of the Sports Law Institute at Vermont Law School, McCann is also a legal analyst for Sports Illustrated. This is the edited transcript of an interview conducted on Jan. 29, 2011.

In terms of sports law, could you describe the case involving Ed O'Bannon?

Ed O'Bannon, a retired college basketball player who also played for a short while in the NBA, has come to the conclusion that he should be compensated for the NCAA's use of his image, likeness and other characteristics when the NCAA licenses his image to private companies, including those who broadcast games, those who repackage games in terms of classis sports, also video game companies.

“If O'Bannon wins, this could be a very significant loss to the NCAA, where lots of former college players will have to be compensated.”

His argument is that, why is it that I'm not being compensated for the use of my likeness? After all, we normally are compensated through our right of publicity, that we have certain proprietary interests in our identity, our voice, our gestures, our name, many characteristics.

He also argues that not only is there an issue with his proprietary interest being taken, but there is an antitrust argument as well. And the antitrust argument is that if players could negotiate their own contracts, retired players, in terms of licensing, there would be a more competitive market. Right now, the NCAA licenses the images of ex-players, and as a result, there's only one supplier of those images, the NCAA. O'Bannon argues there would be a more competitive market, which is something that antitrust law values, if he and other players could do their own deals.

How significant is this case?

It's a very significant case, particularly because it's past the motion-to-dismiss stage. A motion to dismiss is an argument by the defendant that, even if all of the facts are true, there's no viable legal claim. Well, the NCAA lost the motion to dismiss, and it's now going to trial. Normally, cases against the NCAA have not succeeded, either because of motions to dismiss or because they're settled. O'Bannon, though, seems to signal that he isn't going to settle, that he's actually going to go forward with this case, and he's going to try to win it.

And if he wins it, it would mean that retired players, including those who have been retired for a while, should be compensated for their use and image and likeness that the NCAA contracted away.

Well, you said something called the "right of publicity." What is that?

The right of publicity is that we have certain proprietary interests in our identity, that if somebody is going to try to make money off our image, our likeness, our name, that we should be compensated for that. Now, there are exceptions to that. There's a newsworthiness exception, for instance. If we're in the public news because of something we did or because we happen to be there, we're not going to be compensated. There's also an exception for parody. In other words, if we went on a television show and somebody parodied our appearance, we wouldn't be compensated for that.

But if somebody is just trying to make money off our image or likeness, we have a legal right, under state laws, to be compensated for that.

Let me put it a different way. O'Bannon, all the college athletes today, student-athletes, they all sign this form, right? And it's our understanding that this form has a clause in it that says you're signing away all your rights, basically, to the NCAA and to the school that you went to. So what's this litigation all about?

O'Bannon would argue that the Student-Athlete Statement, which, as you noted, Lowell, is required of students to sign if they want to play college sports -- students who may be 17 or 18 years old know that if they don't sign that statement, they will not be able to play sports. And if they can't play sports, they may not get their scholarship. And if they don't get their scholarship, they may not be able to afford school. So O'Bannon is saying, well, that's not really much of a choice, is it, because you're required to sign this form.

Not only does it seem as if we don't have a choice, but the form itself shouldn't have the meaning that the NCAA seems to perceive. The form means that players give up their proprietary interest while they're in college, so the NCAA can use their likeness and image while they're in college to promote the NCAA and to promote the colleges that the players are associated with.

O'Bannon is saying, even if that's OK, which he doesn't seem to concede, but even if that's OK, it shouldn't continue after I've left school, because the NCAA, as it's argued, is concerned about the exploitation of student-athletes; that if they were to be able to do their own deals while in college, there would be charlatans who exploit players and the like. But O'Bannon is saying: "I'm 39 years old. Why is it that I need to be protected by the NCAA nearly 20 years after I played college basketball? I should have a right to get paid. That form shouldn't take the effect that the NCAA seems to interpret."

And the NCAA requires that you not have a knowledgeable person, let's say an agent or even an attorney, look at this document for you, interpret it for you?

Yeah, the NCAA frowns upon, and to some extent, prevents, student-athletes from having a lawyer enter the room and review the document. Now, the thinking there is that it would be a litigious experience if a lawyer were reviewing a form, that it would complicate the playing of college sports if lawyers were involved. Also [there's] the concern that lawyers are really acting as agents if they're giving advice to a student-athlete; that their interests wouldn't necessarily be aligned with those of the student-athlete. There has been other litigation concerning that.

There was a baseball player [for Oklahoma State] named Andy Oliver who, about a year and a half ago, sued the NCAA. He got in trouble because an agent had given him advice after he was drafted. There was ultimately a settlement in that case, but he won the first round in terms of the litigation. So I suspect the NCAA may move away from the requirement that you can't have outside counsel providing advice while you're contemplating this form. But I think the NCAA will argue that we don't want college sports to be litigious; we want to ensure that it's ultimately about amateurism, not about lawyers entering the story. But I'm not sure that's the most persuasive argument around.

They're requiring you to sign this thing, which signs away your rights, basically, by their interpretation, in perpetuity, for the rest of your life.

And it would seem that somebody should be there to provide advice, particularly if you have a 17-year-old -- 17-year-olds do not reach the age of majority. Do they really know what they're doing? And I also think the issue of choice matters here. How much choice does a student-athlete have if he or she knows that if he or she does not sign that form, they can't play; they can't get a scholarship; they may have to leave school? It doesn't really sound like much of an option. It almost sounds as if you have to sign the form.

Now, you don't have to sign it. You can do something else with your life. But these are persons who have worked so hard to get to the point where they can play college sports and receive an athletic scholarship for that that you would hope that they wouldn't be pressed with the decision to walk away.

The phrase "contract of adhesion" has been used. What does that mean?

It can mean a variety of things, depending upon the circumstance. But generally speaking, a contract of adhesion refers to a contract where the party signing it did not know what he or she was getting into, and also was put in a position to sign a form in which they were not able to find out what they were getting into. So in this case, a contract-of-adhesion argument would be, when a student-athlete signs the form, he or she has no idea what they're doing, in essence, signing away rights of publicity.

Those are legal phrases where there should be some kind of explanation as to what that means, as opposed to quickly signing a form and giving up all of these rights that could be very valuable down the line. I don't think that a 17-year-old probably knows what a right of publicity is, or the significance of waiving it away in perpetuity, or the significance of being in one's 40s or 50s and knowing that his or her image is being used in a way that isn't being compensated. …

And the NCAA is basically saying, if you want to come play sports at one of our schools, you want your scholarship, especially, it's our way or the highway.

That's right, Lowell. Essentially, it's our way. You abide by the rules of the NCAA. Their argument is that they're preventing exploitation by ensuring that commercial entities don't approach them while they're playing college sports.

That's their defense?

That is their defense, that it's promoting education. Also, if we're going to take the argu