The Work

February 9, 2010 5:43 PM

The "Amateur" Sports Chronicles: An Academic and Olympian Look at Sports and the Law

Posted by Zach Lowe

We start with a decision in what could become a momentous case in sports law history: The lawsuit filed by several former college athletes in which they claim they deserve to make money from the commercial use of their names and images on television and in video games, just as their professional brethren do. Picture a world in which former Duke University basketball star Christian Laettner gets paid every time CBS runs a promo featuring the image of him running down the court, arms raised and mouth agape, after his famous buzzer-beater against the University of Kentucky. 

That's the world Ed O'Bannon, a star basketball player at UCLA in the mid-1990s who is now a car salesman, wants to be living in, and O'Bannon's lawyers at Hausfeld and their cocounsel at Hagens Berman Sobol Shapiro took the first huge step in that direction on Monday, when their suit survived summary judgment motions. (O'Bannon's suit has been with a similar action brought by onetime Nebraska and Arizona State quarterback Sam Keller.)

The National Collegiate Athletics Association and Electronic Arts, which licenses the right to produce college sports video games from the NCAA, had moved for summary judgment, claiming (in part) that college athletes do not have the same right to publicity as professional athletes. NCAA bylaws prohibit individual athletes from cashing in on their names and images, and as amateurs, college athletes do not have a union to negotiate intellectual property licenses on their behalf. The video games in question do not actually use player names; instead, they feature fairly obvious replicas of each player with the same uniform numbers and tattoos, the same height and weight measurements and the same hair styles. Hardcore users can import their own rosters, giving the nameless replicas their proper names, according to court records in the case.

All of this adds up to an antitrust violation--an agreement between the NCAA (repped here by Miller Canfield) and Electronic Arts (repped by Keker & Van Nest) to deprive the players of their right to publicity, according to Jon King, the lead Hausfeld partner on the matter. Judge Claudia Wilken of federal trial court in Oakland denied the motions for summary judgment Monday, getting the players past the first hurdle. 

The plantiffs' ability to clear that major hurdle suggests this case may have staying power--and a chance to end in a landscape-altering victory, says Michael McCann, a professor at Vermont Law School and a sports law expert. McCann tells us that the group of athlete-plaintiffs, especially O'Bannon, have financial resources most athletes who take on the NCAA lack, and they've also signed up a group of law firms hungry to litigate.

"In other cases, there has been an incentive to settle" with the NCAA, McCann says. "But the lawyers here are very successful litigators who have the resources for a protracted litigation. They can just keep fighting."

The Miller Canfield team declined to comment. King says he's "elated" by the initial ruling and eager to move forward. 

Two legal nuggets we wanted to touch on. First, Electronic Arts, in arguing for summary judgment, raised a precedent we've written a lot about: A major appellate decision from 2008 in which the U.S. Court of Appeals for the Eighth Circuit ruled that professional leagues and unions can't charge Web sites for the use of player names and statistics in fantasy sports games. Those numbers and names, the court ruled, belong in the public domain and do not fall under a player's general right to publicity. Electronic Arts argued that the images used in video games should also be considered part of the public domain, but Judge Wilken disagreed. 

Second: Two retired National Football League players, including the legendary Jim Brown, filed an amicus brief supporting the O'Bannon side. Manatt, Phelps & Phillips is repping the retired players, and that's not a coincidence; Manatt scored a major victory for retired NFL players last year, when a federal jury ruled that the NFL player's union had robbed retirees of proceeds from licensing agreements with video game makers who used scrambled images of those players in games. 

Elsewhere in the world of amateur sports:

• The Olympics in Vancouver are just three days away! We are gearing up for the curling, the insanely competitive hockey tournaments, and, of course, the fight to see which figure skaters can go the longest without falling over. 

But we'll never come as close to being part of the Games as O'Melveny & Myers partner Christopher Brearton. Brearton is a lucky, lucky man: The International Olympic Committee, an O'Melveny client, arranged for Brearton to run with the Olympic torch Monday morning in a small town in British Columbia. "I've never experienced anything like that," says Brearton, who was a competitive swimmer at the University of Georgia during his undergraduate years. "It was as if you were all alone, winning the New York Marathon. My adrenaline was up so much I may have set a personal best in the 400 meters."

And that's about how far you get to run in the 12,000-person relay Brearton describes as "a well-oiled machine." His brief time with the flame was scheduled to begin at 9:21 a.m. Monday in the little town of Langley, and the caravan arrived just about exactly on time, he says.

Just before the torch arrived, a handler switched on the small gas canister inside his torch--Brearton describes it as resembling mini-propane tank--so that it would ignite when the previous runner touched it with his own torch. (Each torch-bearer receives a unique torch, and the IOC retires all the torches after one use, so that each touches the Olympic flame once, passes it on and goes out of service, Brearton says). 

The IOC offered the spot to Brearton--who is, gasp, American, and not Canadian--because of O'Melveny's work striking broadcast deals for the Olympics. The firm is the IOC's go-to broadcast dealmaker, and  finalized separate deals for broadcast rights in more than 160 territories and countries, according to Brearton. There are still a few outliers who have to finalize their broadcast deals for the Games, which will kick off in just three days. (The laggards are located in Latin America and the Middle East, not exactly skiing and hockey havens, he says.) The firm is set to do the same work for the 2012, 2014, and 2016 Olympics, Brearton says. Overall, Brearton estimates that he devotes about 30 percent of his time to IOC matters during an Olympics year. 

Brearton's partner at O'Melveny, Joseph Calabrese, will run with the torch before the summer Olympics in London in 2012, Brearton says. "Joe prefers the summer weather," Brearton jokes.

• We'll end with one other college case in which athlete-plaintiffs earned a major victory. On Monday, the U.S. Court of Appeals for the Ninth Circuit overruled a lower court's decision to dismiss a Title IX suit brought against UC Davis. The plaintiffs in the suit are women who wrestled with the UC Davis men's wrestling team until 2001, when the university kicked them off unless they could beat male wrestlers in their own weight class. (The university did not have a separate women's wrestling team, and the female members only competed in meets when opposing teams also fielded women in the same weight classes.)

The women sued, claiming the university (repped now by Nancy Sheehan, a partner at Porter Scott) violated their rights under Title IX. A federal district court dismissed the complaint, ruling that Title IX requires that plaintiffs give a university defendant notice of a possible violation before filing suit (similar to the requirement that an employee must notify an employer about alleged harassment and give the company a chance to remedy it before suing). 

That was an unprecedented ruling that "would have created an impossible barrier" for plaintiffs, says Noreen Farrell, an attorney for the nonprofit Equal Rights Advocates who represented the wrestlers. The three-judge Ninth Circuit panel agreed and overturned the lower court ruling.

The panel also ruled that the university failed to prove it was in compliance with Title IX. Instead, the judges ruled, the university simply claimed it has a history of expanding women's sports--which is usually enough to satisfy Title IX. (The myth about Title IX, according to Farrell and others we spoke to, is that it requires a school to divide its athletic roster spots by sex based on the number of men and women enrolled at the school. That's one way to satisfy the law, but the "history of expansion" test is much easier to meet and also meets the law's requirements, attorneys tell us). UC Davis has not added a women's team since 1974, court records show. 

Sheehan did not return a message seeking comment. For her part, Farrell says her side is thrilled that the case has new life: "We were devastated when the lower court granted summary judgment in the way that it did."

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