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Tuesday, March 29, 2011
 
My interview for PBS Frontline on O'Bannon v. NCAA

Here's a link to a transcript of my interview with Lloyd Bergman of PBS. The transcript is admittedly long - the interview was for over an hour and we covered a TON of ground for PBS' March Madness and Money feature.

Here's an excerpt from the transcript:

PBS: How significant is this case?

McCann: 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.


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

McCann: 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.


PBS: 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?

McCann: 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."

* * *

PBS: Yeah. But I mean, the players who make the money, because there's a very small group of players who bring in that revenue, right?

McCann: Sure. I think you could say that the superstar player generates a disproportionate share of the fan's interest of the commercialization of sports. When O.J. Mayo plays one year [of basketball] at the University of Southern California, and he's put on the cover of the brochure, and he's highlighted, he clearly is generating revenue for the University of Southern California. This is somebody who is attracting renewed interest in a program that had not attracted a lot of interest in years prior.

I don't know if the 11th and 12th persons on the bench are generating that same value. They're clearly not. You know, the random offensive linemen on a top college football team, whom we don't know the name of, how much value is that player contributing? Well, in the sense that he's playing on a team that's doing really well, he's contributing value. But independently, how much value is he contributing? I think that's a harder call. And I think that's what is going to make compensating athletes a difficult challenge, certainly not an impossible challenge, but it's figuring out who gets what ... If it were a professional league, then we would know what they get, because there's a market for services.

* * *

PBS: But this is the only country that I know of that has sports teams associated with universities and institutions of higher learning in a billion-dollar industry, and is tied that way. I mean, this is a pretty unusual situation, isn't it?

McCann: It is, and in other countries, for instance in Europe, we don't see the same college sports system. We see a professionalization of youth sports. We see if you're a 13- or 14-year-old star basketball player, you don't have to wait until you're 19 years old and one year removed from high school to play in the NBA. You can sell your services as a teenager and make money at that point, or you can join some other kind of pro league in another part of the world.

Only in the United States do we have this very extensive and popular system of college sports that has had the effect of reducing the compensation and, in some cases, eliminating compensation for those who are playing the sports. When you couple that with age restrictions in order to enter the NFL and the NBA -- and, of course, in college sports, at least 90 percent of the revenue is generated by football and men's basketball -- then you could see a real injustice.

You have players who can't turn pro because of an age restriction. Then they have to go to college, if you will, to play maybe for a school that they have no interest [in] being a student at. Where do they go? Well, they can go to Europe if they're a basketball player, perhaps, but not many have done so. They're in a difficult situation. I think the ones who are generating so much of the wealth, the star players, are the ones who are so clearly disadvantaged by this system.

PBS: So it's an antitrust case.

McCann: It is an antitrust case, because the current system is set up in a way that boycotts players who would otherwise be commercially viable from being able to use their services. And that, arguably, makes the market less competitive.

Now, the question is, who gets sued there? Do you sue the professional sports leagues and the players' associations that have created barriers to entry? Well, that's been done in the past. The difficulty is that courts say, if the owners and the players get together and negotiate a rule, it's largely immune from federal antitrust law. And of course, you could say, well, that doesn't seem fair, because the players' association is looking out for current players. Why should they create a barrier that prevents prospective players from entering the league, because if they could enter, they're going to take jobs away from the 12th guy on the bench. That doesn't seem like a fair system. But that's how federal labor and antitrust laws are set up. Current employees can negotiate on behalf of prospective employees. It may seem fair in some contexts, but I think in professional sports it really isn't.

* * *

To read the rest, click here.





2 Comments:

The idea that there needs to be age restriction in the NBA is ridiculous. If the league/ players and owners don't want "under-age" players DON'T DRAFT them. Likewise, there is no need for a franchise tag for super stars on teams with incompetent front offices. For lottery picks, there is a "franchise tag"; it's called RESTRICTED free agency. If a team cannot or will not build/ cultivate a winning culture that attracts talent or endears their "star" to stay after 5- 7 years (the time in which a lottery pick's second contract generally expires)- "hasta livista, baby".

Why are teams looking for rules/ by-laws to save THEMSELVES from irresponsible decision making?

Stop the insanity.

Blogger heh8meN1 -- 3/31/2011 2:55 PM  


Hey Prof. McMann, I met you a couple years back at a Boston College Law School alumni event in San Diego and it's been great to see how your career and sports law in general has gained more attention in the public sphere. Now that I've graduated and am commencing my practice, I continue to see the intersection of law with my various interests and as an avid sports fan I'm a big fan of your site which I frequent now and then. Best of luck on your continued fame in a field of law that continues to evolve.

I would like to leave you with some questions that I've been pondering which I hope you can help answer. If a state were to legalize marijuana what impact would it have on the athletes that play for sports teams in that state and would it influence the marketability of the teams in those states (I'm obviously thinking Ricky Williams here)? Further would legalization influence the policy of the league overall? And has there ever been an instance in which an athlete used marijuana for medicinal purposes? (I know Kareem used it for treatment long after his retirement, he even got a DUI for it, but what if a current player had a prescription to use it for knee or back pain or any of the many ailments which arise from sports).

Anonymous Frank Ahn -- 4/01/2011 5:44 PM  


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