Welcome back to Legal Geek. This week, we celebrate my favorite sport college football being in full swing with a look at the latest frontier in lawsuits against universities for using the likeness of players in commercial contexts.
https://archive.org/details/LegalGeekEp117
NCAA football has been under a fairly constant barrage of legal challenges thanks to the money generation shooting to astronomical levels with very little compensation trickling down to the players that help make this product so popular. As you'll recall, the NCAA itself pulled out of the video game market thanks to a lawsuit from a former player for not sharing the wealth from those licensing deals, and current players have made moves as well like the Northwestern team considering unionizing, also previously covered on this segment.
The tide is rising in favor of compensating players, and another step in that direction took place a few weeks ago when Chris Spielman, a TV personality and former NFL player and linebacker at The Ohio State University, sued his alma mater in federal court as lead plaintiff of a class action lawsuit for antitrust violations associated with marketing activities done by OSU and their marketing firm IMG College. For any familiar with OSU football, the mere thought of a lawsuit entitled Spielman vs. OSU is shocking.
Spielman has promised to turn any winnings in the case back over to the university, so this is really just to make a point and push against the current way the university uses the likenesses of former players in marketing materials. For example, OSU and IMG do deals with companies like Nike and Honda, and banners will be hung in the stadium and elsewhere with old Buckeye greats and the company logos on them. Spielman, being one of the most iconic former OSU players, is typically one depicted. But he receives no royalty for the use of his likeness as a former player.
One under-the-radar reason Spielman is personally motivated to lead this lawsuit is that he has a 20-year relationship helping a Columbus, Ohio car dealership that sells Mazdas and Subarus. That makes his association with competitor Honda in such a public forum kind of problematic for his ability to leverage his own fame and likeness for profit in those endeavors.
That helps explain the antitrust claims in the lawsuit, claiming that OSU and its partners have illegally restrained trade on exploitation of likenesses of former players, which adversely affects the rights and opportunities for those former players. Spielman argues the players deserve some control in this matter, as well as compensation.
Once again, college football and universities are on the firing line for making a bunch of money without the participation of the players. Another salvo in the ongoing battle over the ever-increasing pots of money this sport generates.
OSU has recently moved to dismiss the federal case based on sovereign immunity of state agencies, while marketing firm IMG has filed a motion to dismiss based on failure to state an actionable claim. If those motions succeed, the lawsuit would move to state court, but Ohio does not have a right of publicity law that favors Spielman and former players in this type of circumstance. However, the cat may be out of the bag even if OSU succeeds, as other universities may then face challenges in states with more protective laws for these rights.
The Bottom Line is, as long as the money from marketing and television deals stays so ridiculously high, universities will likely remain under attack from multiple angles until players, current and former, are properly compensated. This case, while shocking to OSU fans, may be the next big landmark in progress towards what many believe to be fair: paying the players a reasonable wage, even in this so-called amateur context. We will keep our eyes on the courts in Ohio for further developments as much as we do the current teams fighting on the field for a national championship.
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