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Sunday, December 09, 2007

A Letter to Tim Tebow

Dear Mr. Tebow,

Congratulations on winning the Heisman Trophy Saturday night, and you most certainly deserve it. I have been waiting for the appropriate time to discuss something with you (and similarly-situated high-profile collegiate athletes). Did you happen to catch the Associated Press release last friday, "Florida threatens legal action against sites selling Tebow items"? Your school has sent cease-and-desist orders to various web sites that are selling pictures, autographs, T-shirts, license plates and others items with your name on them, asserting that the web sites do not have your permission nor your school's permission to do so. It is understandable that your school would do that, because it does not make any money every time a non-licensed company sells something with your name or picture on it.

Third parties (including your school, the NCAA and EA Sports) are profiting immensely from the commercial use of your identity and celebrity status. But the NCAA and its member schools want you to think that you do not have a right of publicity in your identity. They accomplish this by telling you, and third parties using your name and/or likeness, that the NCAA bylaws prohibit you from profiting in this context. Buried in the current version of the 453-page NCAA Bylaws Manual contains the following pertinent provisions:

12.5.2.1 Advertisements and Promotions After Becoming a Student-Athlete. After becoming a student-athlete, an individual shall not be eligible for participation in intercollegiate athletics if the individual:
(a) Accepts any remuneration for or permits the use of his or her name or picture to advertise, recommend or promote directly the sale or use of a commercial product or service of any kind; or
(b) Receives remuneration for endorsing a commercial product or service through the individual’s use of such product or service.

12.5.2.2 Use of a Student-Athlete’s Name or Picture without Knowledge or Permission. If a student-athlete’s name or picture appears on commercial items (e.g., T-shirts, sweatshirts, serving trays, playing cards, posters) or is used to promote a commercial product sold by an individual or agency without the student-athlete’s knowledge or permission, the student-athlete (or theinstitution acting on behalf of the student-athlete) is required to take steps to stop such an activity in order to retain his or her eligibility for intercollegiate athletics.

Obviously, I understand the vital importance of maintaining your eligibility, and that your eligibility is determined by compliance with NCAA bylaws. These bylaw provisions make it clear that you may not accept payment for the use of your name or picture to advertise, recommend, promote or endorse the sale of commercial products and services, and that you and your school must try to prevent the use of your name or picture on commercial items. So the NCAA takes the position that it is o.k. for it and other licensed commerical entities to profit from jersey and video game sales because your name and picture are not being used in violation of these bylaws, and that, by them not using your name or picture, it also preserves the concept of "amateurism".

However, the fact that your name and picture are not being used by these entities in violation of NCAA bylaws does not mean that your identity is not being used in violation of your right of publicity. When my son put together his Christmas wishlist this year, he wrote down, "a Tim Tebow jersey." He did not say, "a Florida Gator jersey with number 15 on it." He also knows that the computer image of a UF player with #15 that has your build, hair color, facial features and skill level in the video game I paid $50.00 for, is in fact YOU. I can assure you that there is plenty of legal precedent establishing that the identification element is clearly met for a right of publicity claim.

So who do you enforce your claim against? Suing the NCAA after you just won the Heisman is probably not a good PR move. Besides, the NCAA would probably take the position that it and its member schools own the rights to the logos, team names, colors and numbers, and that those are the only rights they have licensed for use by third parties. If you sue the jersey and video game manufacturers, they will assert that they are not using your identity, but no court would buy that argument. And, in the alternative, they will assert that the NCAA granted them a license to use your identity. There are two problems with this argument. For one, the NCAA did not grant them a license to use your identity, they licensed the logos, team names, colors and numbers. But more importantly, the NCAA cannot grant such a license because it does not own the rights to your identity, and thus does not have the right to assign those rights for use by any third party.

That takes us back to the eligibility issue. If you sue these commercial entities, it should not affect your eligibility. By filing a lawsuit, you would not be accepting payment for the use of your identity in violation of the bylaws; you would be protecting your property rights in your identity from theft. Once you ultimately obtain a judgment, the NCAA could take the position that receipt of a judgment constitutes acceptance of payment. But by the time you receive that judgment, you will have already exhausted your eligibility. Your lawsuit could be the impetus for the NCAA to begin negotiating with its licensees for an annual royalty to be held in trust for the benefit of collegiate athletes in the future, without destroying their eligibility.

Sincerely,

Rick Karcher
Sports Law Professor

UPDATE 12/10:

P.S. Timing is everything. Last Wednesday, the NCAA formed a presidential task force to examine limitations on the future use of your name, image and likeness by your school, conference and the NCAA to promote the competition and events in which your school participates. You are the ideal person to suggest that this task force be adequately represented by student-athletes to ensure that this task force considers your interests in addition to the NCAA's interest.

-- Posted by Rick Karcher @ 12/09/2007 08:00:00 AM -- Comments (9) -- Post a Comment

9 Comments:

Even though i think this case was decided wrong, won't the video game company have a decent argument by making the same argument that was made in the Tiger Woods Master's argument?

-aaron

Anonymous -- 12/09/2007 8:47 AM

Dear Tim, Congratulations to you on winning the Heisman! Sincerely, Jeremy Bloom.

Anonymous -- 12/09/2007 11:03 AM

The Heisman voters finaly got it right... an underclassman (gasp!) could actually be the best player in the NCAA! And I too would like to extend my congratulations to Mr Tebow on a well deserved award (well, another well deserved award actually).

As far as the ROP and NCAA athletes go... The "non-profit" giant that is the NCAA has made a long standing practice of robbing these athletes blind under the threat of losing eligibility, it's time for a change.

Anon 8:47

While I certainly think the Tiger Woods case was decided in error (it was pretty damn clear that the artist violated Tiger's ROP), I see some distinctions between the woods case and the video games.

In the Woods case, it came down to tigers likeness v. the artistry of the painter, in other words, the image of Tiger v. artistic creation of the painting. While I disagree with the outcome, there is at least an argument to be made in this case that the brush strokes of the artist makes the painting, not the subject. And lets not forget that the judges in the Woods case also made it clear that Tiger "had enough money already"... How this is a compelling argument in a ROP suit I will never understand, but it was also used in the MLB Advanced Media case, so I guess I'm just not as experienced in legal arguments as these impartial judges...(Add sarcastic remark here...)

Could you claim the same artist/creation argument for a NCAA video game? I think not! Nobody, and I mean Nobody, would purchase an NCAA football game if they could not recognice the players! Thats what makes the game, the players and the teams, knowing that you can replay the Ohio state-Florida national championship game as many times as you want, scoring even more points in your living room than the Gators did on the field(wait... is that even possible???)

The bottom line is that the video game has nothing without trading on the likeness of the players, while a painting can at least be said to have some sort of First Amendment creation element.

Once again, on behalf of the entire GatorNation:

Tim, you make us proud to be Gator's, proud to bleed orange and blue!

Now take all your energy to Orlando and show yet another Big Ten team how football is supposed to be played!

Jimmy H -- 12/09/2007 12:03 PM

http://www.thermocaster.com/2007/11/19/a-new-approach-to-intellectual-property/#more-776

TK -- 12/09/2007 2:48 PM

There is a lot of language in the Tiger Woods case on the First Amendment issue tending to show that the court was concerned about the "expressive" nature of a painting. So I don't see that case to be on point with video game use. Video game use is probably more like the Vanna White case, in which the court found that the use of mechanical robots clearly resembling Vanna constituted a violation.

By the way, today's Florida Times-Union has a huge advertisement the size of 1/2 an entire newspaper page with Tebow's name and picture. The advertisement offers for sale a glossy 12x18 full color collectible reprint of both today's front page announcing Tebow's Heisman Trophy win (which takes up about 80% of the front page of the paper) and a page from the Monday, Dec. 10 sports section -- "Tebow's Place in Heisman History". The ad offers the reprints at a price of $14.95 each or both for $25.

Rick Karcher -- 12/09/2007 5:45 PM

Also, to add to what Prof Karcher just mentioned regarding the expressive nature of a painting, some states ROP statute expressly excludes one, single, original work of fine art such as a painting from the reach of the ROP (Illinois is a good example of this if my memory is correct).

The Tebow - Times Union example sounds alot like like the Montana v. San Jose Mercury News case.

of course we know the outcome of that case... the posters protected as... ding ding ding!!! thats right... NEWSWORTHY! and if thats not enough to convince us that the media has an absolute right to make money off of the sweat and blood of others... the court added this little tidbit

"...a newspaper has a constitutional right to promote itself by reproducing its originally protected articles or photographs.”

Oh well, I could go on all day, but I suppose I should get back to the paperwork mounting on my desk....

Jimmy H -- 12/09/2007 9:07 PM

I too want to congratulate you Tim on winning the Heisman Trophy. The voter really got it right!

By the way you also have a great name! Tim Tebow, it just rolls off you tongue. That's great. You will be remembered by people who don't even follow sports. You join others with great names, like Tiger, Magic, Shak, and Payton.

Good luck next season.

elena

elena -- 12/10/2007 1:42 AM

Jimmy,

Good point about the Montana case. Perhaps a court would distinguish that case by saying (1) Tebow doesn't make any money like Montana, so we should feel more sorry for him like we did when Rosa Parks' name was used in a song; or (2) Tebow's reprint is much more individualized in that it pertains to only his personal achievement, whereas Montana's reprint was more about the Super Bowl than it was about his personal achievement.

But in any event, I mentioned the reprint ad because I think the reprint violates Bylaw 12.5.2.2, which requires Tebow and Florida to send the Times-Union a nasty cease-and-desist letter?

Rick Karcher -- 12/10/2007 9:17 AM

thanks

çeçenistan -- 2/22/2009 8:57 AM