SBD/July 19, 2013/Marketing and Sponsorship

Lawyers In Ed O'Bannon Lawsuit Unveil New Allegations As Six Current Players Join Suit

Robinson could not work regular hours due to his commitment to the football team
Lawyers for the plaintiffs in the Ed O'Bannon antitrust lawsuit against the NCAA recently "amended their complaint by adding a series of new highly charged allegations," according to Steve Berkowitz of USA TODAY. They "mention specific alleged actions not only [by] the NCAA, but also by each of the other defendants," EA and Collegiate Licensing Co. Even comments of late NCAA President Myles Brand "were spotlighted." One of the allegations was that Brand in public remarks in '08 agreed that the "right to license or sell one's name, image, and likeness is a property right with economic value.'" Another was that EA and CLC allegedly "actively lobbied for, and obtained, administrative interpretations of those rules that permitted greater uncompensated exploitation of student-athletes' names, images, and likenesses." This "addresses an argument by EA and CLC that, as business partners of the NCAA, they were simply following the association's rules pertaining to the use of athletes' names and likenesses, so the plaintiffs have no right of action against them." Berkowitz reports EA in August '07, "when licensing of video games was being negotiated," allegedly offered to "establish a 'players' fund' for the use of the (student-athletes') names, images, and likenesses." CLC, negotiating on the NCAA's behalf, instead suggested that the money "should go to the NCAA." EA "agreed to pay a kicker to the NCAA in order 'to align interests and incentivize all parties to help build the category with new rights.'" EA "made this offer contingent on 'no royalties ... to a player fund'" (USATODAY.com, 7/19).

CURRENT PLAYERS JOIN SUIT: Six active college football players -- Arizona LB Jake Fischer and K Jake Smith, Minnesota TE Moses Alipate and WR Victor Keise, Vanderbilt LB Chase Garnham and Clemson CB Darius Robinson -- joined the O'Bannon lawsuit as named plaintiffs. All six players are seniors (Mult., 7/19). ESPN.com's Tom Farrey wrote the players by adding their names to a "highly contentious" lawsuit "enhance the chances that damages in the suit could reach into the billions of dollars." U.S. District Court Judge Claudia Wilken in June "asked plaintiffs in the O'Bannon suit to add a current player to the lawsuit." Wilken later this summer will "rule on whether the class of current and former players will be certified, allowing it to pursue its claims as a group instead of as individuals" (ESPN.com, 7/18). SI.com's Andy Staples reports Robinson's "inspiration to join the suit came a few months ago" when he learned while someone is an "athlete at an NCAA institution, your name and your face do not belong to you." Robinson "wanted to get a job to earn extra money, but he couldn't work regular hours because of his commitment to the football team." He "hit upon 5LINX, a multilevel marketing company with a business model similar to Amway." While such companies "certainly have their drawbacks, 5LINX does offer direct sales." In Robinson's case, he "intended to sell mobile phones and phone plans." Someone in Clemson's compliance department "noticed an uptick in business-related posts on Robinson's Facebook and Instagram accounts, and Robinson was called in to meet with compliance officials." Robinson said, "According to the NCAA, the rule is that a student-athlete can have his own business. But they were saying that I couldn't have it because I couldn't detach my name from it. They were saying I couldn't promote it" (SI.com, 7/19).

NCAA ON THE DEFENSIVE? In L.A., David Wharton writes the NCAA by "dropping ties" with EA on Wednesday "could be showing signs of worry about its chances in a major civil lawsuit." Attorney Michael Marrero, who is not involved with the case, said, "The NCAA may foresee that it will not be able to collect licensing fees from EA Sports for much longer without sharing the revenues with former and current student athletes. If that's the eventual outcome of O'Bannon v. NCAA, the deal may no longer be as lucrative for the NCAA. And any licensing fees that the NCAA continues to collect will only enhance the plaintiffs' damages claims" (L.A. TIMES, 7/19).
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