May 14, 2014 4:40pm PT by Eriq Gardner
In Fight for Pay, College Athletes Ridicule TV Broadcasters' Arguments
On Tuesday, we highlighted a pretty spectacular development in the class action lawsuit brought by Ed O'Bannon and other current and former college athletes who are demanding compensation for their exploitation. Thanks to a judge's ruling in April, the broadcasters perceive a threat to their billion dollar rights deals over college sports and are supporting an interlocutory appeal to address the issue over whether the First Amendment precludes student-athletes from asserting rights of publicity in live broadcasts.
Now, the college athletes have come up with a snappy response. They say that this is an antitrust case -- one meant not to enjoin live broadcasts of Division I men’s football and basketball games, but rather a dispute to settle whether athletes get a "share in the broadcast revenue, just like other performers throughout the entertainment industry."
And they bring a famous NBC newsman into the debate.
"The logical extension of amici's position is that David Gregory’s demand for more money to host Meet the Press would chill NBC’s First Amendment rights," say the athletes.
The broadcasters are finding it dubious that athletes have publicity rights on games, but if so, the plaintiffs question why the NCAA and its members make its athletes sign release forms as a condition of athletic participation. In the lawsuit, the athletes contend that they are forced to sign those releases and that the NCAA then enlists its licensing partners, including broadcasters, to enforce a boycott that has the effect of foreclosing compensation for amateur athletes.
According to the athletes' brief, "The issue here is how the NCAA and its members convey broadcast rights that include college athletes’ NILs [names, images and likenesses] -- without payment for the use of those rights -- in contrast to what is done in the professional leagues, where group licenses and compensation for use of NIL are the norm, so that the event organizer can represent truthfully that it has all the necessary rights clearances."
In its own amicus brief, the broadcasters pointed to Zacchini v. Scripps-Howard Broadcasting Co., the only time that the issue of publicity rights has been addressed by the U.S. Supreme Court. In that case, a man named Hugo Zacchini who performed a human cannonball act sued a local Ohio TV station, arguing that he'd have no incentive to perform if TV broadcasters could show his entire act without consent. "As applied to team sports, it is the producer of the event (e.g., a team, league or school) that charges an admission fee, not every offensive lineman, cheerleader, or bandmember who performs in a game," said the broadcasters.
The athletes ridicule the broadcasters' attempt to distinguish the producers from the performers.
"Putting to one side any semantic debate over what a performer 'produces,' " responds the plaintiffs, "the Broadcasters find no support in the Supreme Court’s opinion for the proposition that Zacchini "produced" the Geauga County Fair, at which his act was featured. Indeed, contrary to the Broadcasters’ assumption, Zacchini did not charge a separate admission fee."
Although, for obvious reasons, the athletes won't go so far as to directly threaten the broadcasters with future lawsuits for telecasting games without their consent, they hardly rule it out either. They point to state laws and past cases and remark, "Even assuming that rights of publicity are of controlling significance in this antitrust case, such rights apply no less to performers in public sports events."