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Wednesday, July 30, 2008
 
Fantasy Leagues Now Profiting from the Likenesses of College Athletes

Of course, I couldn't withhold my thoughts on today's press release that CBSSports.com has decided to make millions using the names and performance statistics of college football and basketball players in a fantasy league game without paying for it. There are a couple of points in the press release that I need to address:

1. A fantasy college game has never been widely accepted or attempted before because of a reluctance to utilize anything but broad signifiers in identifying college athletes. CBSSports.com had previously developed a game using generic terms including only a team and a position, like "SYRACUSE RB" and "MICHIGAN WR," instead of players' names. But it never caught on with users, due mainly to the disconnect between the robotic names and the fantasy audience, according to senior vice president and general manager Jason Kint.

Yeah. No kidding! You know why it never caught on with users? Because the game only has value if you use their names!!! But I suppose we can keep pretending that players don't have a right of publicity because "fantasy leagues only use their stats which are in the public domain." What a joke.

2. National Collegiate Athletic Association spokesman Bob Williams says that the NCAA did send a letter to CBS informing them that their bylaws were being violated by using player likenesses in the game. But he adds that because of the added exposure fantasy sports can bring the student-athlete, the NCAA does not intend to stand in the way of the fantasy game for now. "We are concerned with protecting the amateur status of the student athlete," Mr. Williams says, but he also believes that the bylaws, which were enacted "before new media," do not properly address a situation like this. Still, he warns that NCAA lawyers will be watching closely.

Umm,....o.k.,....yeah. Let me try to break this down:

a. The NCAA says its bylaws are being violated because player likenesses are in fact being used.

b. But, the NCAA says it is going to allow the violation to occur, for now, because of the added exposure fantasy leagues bring the student-athlete [which is apparently a good thing].

c. But wait a minute, the NCAA says it is concerned about "protecting" the student-athlete from this added exposure. [If you're totally confused at this point, wait, it gets better.]

d. The NCAA says it can't do anything about fantasy leagues because the bylaws don't address this situation. [Go back and read a. and b. again.]

e. The NCAA says its lawyers will be watching closely. I'm not quite sure what the lawyers will be watching, except maybe the continued exploitation of college athletes.





16 Comments:

In what sense can CBS sports (not a member of the NCAA) be said to violate NCAA bylaws?

Blogger Lior -- 7/30/2008 5:43 PM  


The beginning...of the end....of the lie...of the "student-athlete"...

Anonymous Anonymous -- 7/30/2008 5:53 PM  


Lior,

CBS is not subject to the bylaws. However, the bylaws provide that a student-athlete shall not permit his name or likeness to be used in connection with a commercial product or service. So, for example, if a player's name is used by a jersey manufacturer, the player and his school are required to take measures to prevent the vendor from using his name. If they don't then the school and player are in violation.

Blogger Rick Karcher -- 7/30/2008 6:04 PM  


Good and informative post. Yes, and the NCAA a) will lose in the court of public opinion; b) has no legal authority whatsoever in this matter to prohibit CBS/CBS Sportsline from the information; c) Double-speak is common practice at the NCAA (just listen to any Myles Brand interview); d) the student-athletes not only do NOT want any protection here, they WANT to see themselves in fantasy sports; e) yeah, the NCAA better keep a close eye on this matter if, in any way, someone could legal profit from "their" sports product without paying them an extortion fee.

Anonymous Anonymous -- 7/30/2008 8:36 PM  


Anon,

To be clear, it's the players' right of publicity that's at issue with the use of their names (not the NCAA's product). The NCAA should be supporting its players, whether that means asserting the players' legal rights on their behalf or, at a minimum, taking the position that it does not condone unauthorized use by third parties. The Eighth Circuit is merely one circuit's opinion on this issue, and the opinion is very confusing.

I'm not sure about what you mean by the fact that players want to see themselves in fantasy sports --what does that have anything to do with their right to be compensated for the complete commercial exploitation of the use of their names?

Blogger Rick Karcher -- 7/30/2008 9:18 PM  


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Anonymous Online Casino -- 7/31/2008 7:44 AM  


Some of us have made thispoint over and over... the use of player likeness in fantasy games without permission and/or compensation is clearly a violation of the ROP. the fact that the college fantasy games were unpopular with generic names proves the point that stats without the player likeness is utterly useless!

Blogger Jimmy H -- 7/31/2008 10:05 AM  


Yes, the players and schools may be in violation of NCAA rules for allowing their names to be used, but what is the NCAA going to do? Find all schools used guilty of violations? That's just not going to happen.

Blogger Will -- 7/31/2008 5:17 PM  


Will,

I'm not suggesting the NCAA should do that. The NCAA's position should be as follows:

1. Fantasy league use commercially exploits students-athletes.

2. We think the CBC case was incorrectly decided.

3. Even if the CBC case was correctly decided, that case does not apply to amateur athletes.

4. Therefore, we do not condone fantasy league use of players' names and we will enforce our legal rights, including the rights of our players on their behalf, against any fantasy league operator that uses players' names or likenesses.

This position would also be consistent with its stance that video game manufacturers may not use players' names or likenesses either [even though, by the way, video game use clearly violates the players' right of publicity]. I'm not sure how the NCAA can possibly justify their inconsistent position with respect to use of names by video games and fantasy leagues.

Blogger Rick Karcher -- 7/31/2008 6:33 PM  


The CBC case doesn't apply to all athletes (at least those in the
8th Circuit)? You're gonna have to explain your reasoning. Before doing so you may want to consult a ROP treatise and consider the Equal Protection Clause.

Anonymous Anonymous -- 8/01/2008 12:53 AM  


Anon,

I have consulted a treatise. I don't feel the need to consider the Equal Protection clause. And my opinion has not changed.

Blogger Rick Karcher -- 8/01/2008 2:03 PM  


Although this does not have much to do with student-athletes and video games, another right of publicity suit involving video game makers has been filed in New York. In the suit, Hall of Famer Jim Brown alleges that EA and Sony have violated his right of publicity by casting him in video games as the "muscular African American player wearing the number 32" on the "All Browns Team." Jim Brown would appear to have several significant hurdles to overcome in winning a case, especially if the Browns have had another #32 running back since he played. I doubt this case will ever reach trial, especially if Brown and EA/Sony can reach a settlement agreement consisting of a fee for using Brown's "likeness." Nonetheless, it will be interesting to see how the case turns out.

Anonymous Tim Cedrone -- 8/01/2008 3:27 PM  


Rick, will you please address the NCAA's anti-gambling stance and what you feel are the ramifications of CBS's actions are on that. It seems to me that it smacks of more inconsistancy on the part of the NCAA.

Anonymous Chrstine -- 8/04/2008 2:03 PM  


Professor Karcher - In offering suggestions on the NCAA's arguments you bring up "3. Even if the CBC case was correctly decided, that case does not apply to amateur athletes." Taking this a step further, how exactly would the NCAA go about showing this? Is there any case law out there that supports this theory? What else might be persuasive here? I am currently writing a paper on a similar topic and would greatly benefit your thoughts

Anonymous Anonymous -- 8/05/2008 11:14 PM  


Christine,

You raise an interesting question, and I'm not sure how the NCAA views it in that regard. My personal opinion is that fantasy league use doesn't really implicate the NCAA's gambling concern because there isn't any money at stake that is going to influence player or team performance. Nobody is going to approach a player and say, "I'll give you an SUV if you tank the game so that I can win my fantasy league."

Anon,

To answer your question as to how amateurs might distinguish themselves from the Eighth Circuit's ruling against professional baseball players (although obviously I think that case was wrongly decided to begin with), the court considered the economic interest of the players and highlighted the fact that they make lots of money as professional athletes, which obviously can't be said about amateur athletes. Also, with amateurs a judge or jury might be more compelled to feel that it just has a more "exploitive" element to it. Here is some language from the Eighth Circuit's opinion: "But major league baseball players are rewarded, and handsomely, too, for their participation in games and can earn additional large sums from endorsements and sponsorship arrangements."

Blogger Rick Karcher -- 8/06/2008 10:05 AM  


Professor Karcher, why is it that CBS is the only company to jump on this college fantasy football? Does CBS feel like they are invulnerable to litigation by the NCAA because of the billions of dollars tied up between the two? Is there the possibility of some under the table deal between the two? When will the NCAA be called out for the double-speak they constantly advocate?

Anonymous Anonymous -- 9/10/2008 5:11 PM  


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