Photo Credit: AJ Maestas & Jason Belzer (ADU)

Ryan Erdman is anĚýIPilogueĚýWriter and a 2L JD Candidate atĚýOsgoodeĚýHall Law School.Ěý

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The National College Athletic Association (NCAA), a multi-billion-dollar corporation, serves as the dominant sanctioning organization for college sports in the United States. A defining feature of college sports is the amateurism that underlies all competition, where college athletes can only receive “education-related” compensation (i.e., tuition, school-supplies, room and board). To avoid ineligibility, these elite athletes cannot benefit from or be compensated for the use of their name, image, or likeness (“NIL”). However, the intellectual property rights, including the trademarks routinely protected by celebrities and professional athletes, may no longer be a concern to college athletes. Instead, they can be an exciting new opportunity for college athletes to prosper. Ěý

The NCAA Division I Council plans to on June 22^nd and 23^rd, 2021. All signs point to the group voting on the proposed NIL rules changes that would fundamentally alter athlete compensation. As noted, , college athletes cannot use their NIL to promote or endorse a product, even without compensation.

The movement for college athlete compensation, a controversial topic in light of the high revenue generated by college sports in the United States, has gained traction since California enacted the Fair Pay to Play Act in September 2019. Since then, 18 states are gearing up to place novel NIL laws into effect, some as soon as July 1, 2021. The legislation places immense pressure on the NCAA to enact its own uniform rule changes, as the integrity of college sports and recruiting could collapse with inequitable practices across state lines. As recently as June 19, 2021, NCAA president Mark Emmert his support for uniform NCAA policies by July 2021. The NCAA president was also to stress the need for federal laws despite any national NIL guidelines from the NCAA.

Of course, some still reject the notion that any changes are necessary, as compensation is seen to detract from the athletic and educational components central to athletic scholarships. Compensation is seen to not significantly impact most college athletes who are unlikely to receive several endorsement offers. Although the majority of athletes do not have national name brand equity, athletes will have local opportunities with smaller platforms. There are also concerns that the fast transition to the upcoming academic year leaves little room for oversight. A lack of education related to the legal process, rights and obligations has already given college athletes difficulties in the . Complications often arise when younger college athletes sign contracts with agents or when they “turn pro.” Major programs have already partnering with companies like Opendorse, which provides athletes with education on building and monetizing their brands.

But in a digital era, social media has undeniably shifted players’ balance of power in the field. Discussing NILs, the ABA has to social media as the “referee that moves the sticks of monetization.” College sports’ biggest stars are polarizing public figures, some with incredibly large followings. Even those who do not have millions of social media followers are set to cash in significantly when acting as influencers or brand ambassadors. For example, the University of Connecticut’s basketball star and AP Women’s Player of the Year, Paige Bueckers, with approximately 830,000 Instagram followers, is set to become one of the most influential college athletes on social media. Athletes with larger followings are to make anywhere from hundreds of thousands to millions of dollars in brand deals before their professional career even begins.

At a time when the NCAA is already under significant pressure, the recent unanimous Supreme Court in the antitrust case Alston v NCAA further pushes the narrative of expanded rights for college athletes. While not directly addressing the topic of NIL, the decision won by former student-athletes is a significant moment for defining amateurism in college sports, as the case dealt with restrictions placed by the NCAA on education-related benefits. As critical meetings approach and the July 1^st deadline continues to loom, the next few days could fundamentally change the model of amateurism adapted by the NCAA.

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On June 15, 2020, a was filed against the National Collegiate Athletic Association (NCAA) on the grounds of breaching federal antitrust laws. Regulations such as the NCAA’s amateurism rules prohibit college athletes from using and being compensated for the use of their name, image, and athletic reputation. In recent years, these regulations have been increasingly contested by college athletes, alleging that the NCAA, a billion-dollar corporation, is protecting its monopoly over college sporting in the United States.

An athlete’s reputation, name, and image are the foundation of the intersection between intellectual property and entertainment. The World Intellectual Property Organize notes that “.” Once a student-athlete has developed into a professional athlete, how they can protect their image grows exponentially.

In this class-action lawsuit, the NCAA attempted to justify its regulations by claiming that the status of “” was not categorically valid in the commercial setting. However, considering the modern context of college sports, especially college basketball, there is a strong argument to be made in favour of recognizing players as celebrities.

Recently, there has been a growing media frenzy surrounding the NCAA’s March Madness event. As the NCAA’s popularity skyrockets, issues regarding right to image and compensation surfaced as athletes found themselves increasingly restricted by the amateurism regulations.

O’Bannon’s Legacy for College Athletes

In 2008, Edward O’Bannon, a University of California, Los Angeles (UCLA) basketball player, was depicted in a video game by Electronic Arts (EA). In said game, there was an avatar O’Bannon never consented to having his image used in the video game, and EA, a multi-million dollar gaming software corporation, never offered to compensate him for their use of him as a character.

When O’Bannon’s case was brought before the district court in 2015, Judge Claudia Wilken that the NCAA’s amateurism rules violated federal antitrust law, and ordered colleges to pay male basketball and football athletes up to $5,000 per year for the use of their image. The cumulative sum was to be paid after they graduated.

During the , the majority of the Ninth Circuit Court upheld Wilken’s ruling on the illegality of the NCAA’s amateurism regulations, but struck down the injunction forcing schools to pay specific athletes up to $5,000 per year. This decision left the college community uncertain on where the courts stood in regards to allowing college athletes to use and profit from their image.

As Oregon’s star basketball player, Sedona Prince, said:

Prince is one of many college athletes who have joined the class action filed earlier this year. Her words resonated with the college athletics community, and acted as encouragement for others to step forward and join the suit. , the law firm spearheading this suit, has opened the case for all active athletes since 2016 and announced that there would be no fee to join the suit or benefit from the settlement or lawsuit.

What’s Next?

While this case has just begun, it presents an opportunity to revolutionize intellectual property law in amateur sports. We may see the NCAA push this case up to the Supreme Court for a final ruling on whether student-athletes should be entitled to compensation for the reputation they craft on the court. If the ruling favours the college athletes, there would be reforms across amateur sports. This includes renegotiating contracts between players, colleges, and the NCAA, the repeal of regulations limiting compensation for image and likeness, and an expansion of intellectual property law more generally. This is definitely a case to keep an eye on.

Written by Adele Zhang, a first-year JD student at Osgoode Hall Law School. Adele is interested in the intersection between IP, Ěýsports law, business law, and employment law.

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As was discussed in theĚýIPilogue by Nicholas Arruda, Friday’s ruling stems from aĚý Ěýfiled by former UCLA basketball star Ed O’Bannon. O’Bannon and nineteen others sued the NCAA, claiming that the organization violated the Ěýbecause of its rules that prohibit student-athletes from receiving a share of the revenue earned by the NCAA and its schools from selling Ěýlicenses to use the names, images, and likenesses of its athletes in footage like live game telecasts, commemorative DVDs, and video games. NCAA regulations only allow its players to receive money for attending school and through scholarships, arguing that their restrictions on compensation for student-athletes are necessary “to uphold its educational mission and to protect the popularity of collegiate sports.”

U.S. District Judge Claudia Wilken did not agree with the NCAA, and at the end of her ninety-nine page Ěýshe issued an injunction prohibiting the NCAA from continuing on in its ways. Taking effect at the start of the next Bowl Subdivision Football and Division I Basketball recruiting cycle, student-athletes will now receive a share of the revenue generated from the use of their likenesses. The funds will be held in a trust until the student leaves school or is no longer able to compete. The injunction allows the NCAA to set a cap on how much they give to its athletes, however it does “prohibit the NCAA from setting a cap of less than five thousand dollars (in 2014 dollars) for every year that the student-athlete remains academically eligible to compete.” Schools also have the option to offer a lower amount, but only if the schools do not illegally conspire with each other when setting the number.

Those on team NCAA are not exactly happy with the loss, and have already reportedlyĚýĚýan intention to appeal the decision. Those on the opposite side of the court to O’Bannon Ěýthat paying players and moving away from amateurism (where “players participate for the love of the game”) would cause a drop in the number of college sport spectators and would create an imbalance among schools and conferences. NCAA witnesses further contended that the education athletes receive is in fact payment for their services.

Several players however testified that they viewed being an athlete and not a student as their main job while at college.Ěý According to O’Bannon testified: “I was an athlete masquerading as a student...I was there strictly to play basketball. I did basically the minimum to make sure I kept my eligibility academically so I could continue to play.” Co-lead counsel for the plaintiffs Bill Isaacson to the media that he was pleased with the verdict, calling it a “major step towards decency for college athletes.” Furthermore, Rutgers law professor Michael Carrier, who specializes in antitrust and IP law, reportedly the outcome may not actually be that scary since payouts may not be huge and will only come to the athlete after their career is over.Ěý In a statement to USA Today, Carrier does however Ěýthat the decisionĚýis a huge loss for the NCAA because their prized defences of amateurism and competitive balance Ěýare no longer persuasive in the face of an argument of fairness. As O’Bannon reportedly :Ěý“It is only fair that your own name, image and likeness belong to you, regardless of your definition of amateurism. Judge Wilken’s ruling ensures that basic principle shall apply to all participants in college athletics.”

So what now? In a very opinionated about the decisionĚýCBS Sports’ senior college football columnist Dennis Dodd said that “a seal has been broken. Players can be paid, and we can’t turn back from here.” And since the ruling is limited to male football and basketball players surely the cause will also be taken up by female athletes and those in other sports. The future implications of the decision, from its impact on the structure of American college sports, the potential influence it will have on athletes in other jurisdictions, and to the financial consequences for major sport colleges, speaks to just how important IP law issues are in all realms, whether it be business, sport, or education. The fact is, you have a right to you - it does not matter if you work in an office tower or run drills in a gym. Your name, image, and likeness are yours and, as confirmed by Justice Wilken, they are not for someone else to benefit from for free.

Jaimie Franks is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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Importance to Canada

There are two main reasons why Canadians, specifically lawyers and law students, should be interested in the °­ąđąôąôąđ°ů/°żâ€™B˛š˛Ô˛Ô´Ç˛Ô lawsuit. First, a number of Canadians will be directly impacted by the case; and second, the case will establish a precedent for a novel issue in a niche area of law.

A. Canadian Athletes in the NCAA

There are a vast array of Canadians that will be directly impacted by this case. With the number of NCAA-bound Canadians rising, it is becoming the role of the Canadian sports professional to provide guidance to young athletes to navigate the intricacies of NCAA regulations, which now includes intellectual property exploitation and its . Whereas a typical Canadian may discount the market-size for this advice, the number of Canadians competing in the NCAA is substantial: played Division I NCAA basketball in the 2012/2013 season, played in the 17 NCAA Football Bowl Games in 2013, and Canadian National Hockey League players competed in the NCAA at one time. Moreover, the role of a professional advisor is not limited to individual athletes but is also relevant to advising the NCAA itself and the that comprise the NCAA, including Simon Fraser University, the first institution of the NCAA.

B.ĚýĚýĚýĚý Case Precedent

Many critics highlight that the SAs have a strong case.[2] However, it is the NCAA’s response to a judicial decision that will be intriguing. It would be very difficult to conceive the NCAA permitting athletes to earn money from likeness during their collegiate careers given the overarching . Nevertheless, the captivating decision moving forward is whether athletes may retain damages awarded from intellectual property lawsuits. Seemingly, if athletes cannot licence likeness for economic gains, then SAs similarly cannot retain damages from athletic-related intellectual property lawsuits. However, thatĚýthe NCAA would permit Texas A&M’s Johnny Manziel to retain damages from a trade-mark infringement lawsuit without impact to his collegiate eligibility. Thus, Manziel’s lawsuit reveals a possible “loophole” in the NCAA regulations and in amateur eligibility rules in general.

These issues have never been litigated before in amateur sports and, although arising in the context of NCAA athletics, the same issues can easily arise in other sports contexts in a multitude of jurisdictions. The bylaws of national and international sports federations, many of which govern sports in Canada, are also vague regarding the nexus of intellectual property and amateur status. Due to this vagueness, the sporting world simply does not know the boundaries for an amateur athlete’s ability to, or not to, exploit likeness and related intellectual property. Moreover, the case and the NCAA’s reaction will only constitute persuasive authority in relation to other sport bodies and jurisdictions. An issue of significant concern is that there remains the possibility athletesĚýwill beĚýpermitted to collect damages under NCAA bylaws but in doing so wouldĚýrisk losing amateur status under separate, sport-specific eligibility regulations.

The arguments, defences, reasoning, decision and aftermath of the °­ąđąôąôąđ°ů/°żâ€™B˛š˛Ô˛Ô´Ç˛Ô lawsuit will provide direction to athletes and lawyers alike. With the trial in June 2014, Canadian athletes, sports administrators and lawyers should be following its progression.

Nicholas Arruda is a JD candidate at Osgoode Hall Law School and is currently enrolled in the course "Law & Social Change: Creative Industries" (Winter 2014). As part of the course requirements, students are asked to write a blog on a topic of their choice.

The post The Keller/O'Bannon Lawsuit: Why Canadians Should Care appeared first on IPOsgoode.

EA’s primarily posited two arguments that the court ultimately found dissuasive. EA relied on the in terms of its basic right to create and distribute the video game. In response to Keller’s assertion of common law and civil code protection against the tort of appropriation of likeness – also known as the right of publicity – EA argued that the video game met the transformative use test, which allows the First Amendment to supersede publicity rights. Second, EA leaned on (“Strategic Lawsuits Against Public Participation”), claiming that Keller’s suit qualified as an attempt to punish EA for exercising its political rights. The court rejected these arguments.

Right-of-Publicity vs. First Amendment
California’s right-of-publicity is based in common law on , which supports a claim with these four conditions: use of the plaintiff’s identity, appropriation of that name or likeness to the defendant’s advantage, lack of consent and resulting injury. California validates this and adds that, in addition to Ěý“all the elements of the common law cause of action,” there must also be a "knowing use by the defendant as well as a direct connection between the alleged use and the commercial purpose.”

EA argued the transformative allowance, which allows the First Amendment to trump publicity rights if sufficient transformation has occurred between the original inspiration and the new work. EA argued that it had added significant creative change so that the players’ likenesses within the game were transformed to surpass existing as a simple imitation. In arguing this, they relied not on the transformation of the likeness per se, but in the concept of the game as a whole as sufficiently transformative. One judge dissented from the majority, agreeing with the "game-as-a-whole" transformation argument. The remainder, however, didn’t agree.

The majority argued that there was simply too much direct copying of Keller’s likeness to meet the transformation threshold. Indeed, there were many direct comparisons.

“In the 2005 edition of the game, the virtual starting quarterback for Arizona State wears number 9, as did Keller, and has the same height, weight, skin tone, hair color, hair style, handedness, home state, play style (pocket passer), visor preference, facial features, and school year as Keller.” (p. 7-8)

As was emphasized by Judge Jay Bybee, upholding the lower court decision,

“Keller is represented as ‘what he was: the starting quarterback for Arizona State’ and Nebraska, and ‘the game’s setting is identical to where the public found [Keller] during his collegiate career: on the football field’.” (p. 16)

Outside of the transformation argument, EA also posed the related argument that because the game maker included numbers but not theĚýlast names on the in-game jerseys, the likeness threshold was not met. This argument received little traction. As the verdict found - and as one succinctly pointed out - EA “intentionally designs its sports games to allow gamers to circumvent this formality, providing a means to easily upload entire rosters of actual player names, after which player jerseys contain both the player’s number and name. Although EA could easily block this feature (as they do for profanity), they choose not to.”

The Anti-SLAPP Statute
California anti-SLAPP law is best summarized as an attempt to prevent suits that “masquerade as ordinary lawsuits but are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so” ().

By siding with Keller’s publicity rights, the court inherently rejected the idea that Keller’s suit was a frivolous attempt to trample EA’s constitutional rights.

Canadian Application
Though there are many in Canadian appropriation of personality jurisprudence, our domestic requirements would have been met handily in Keller v EA.

The Ontario Court of Appeal’s 1997 decision Krouse v Chrysler Canada Ltd. outlined that the two requirements to satisfy the tort are identity exploitation for commercial purposes, and exploitation that clearly captures the personality of the plaintiff. The test for commercial purpose was solidified in 1996 in , which outlined the need for the likeness to be predominantly connected with the sale of the consumer merchandise. One example given in the verdict directly correlates to Keller v EA,

As a result, Elvis Presley posters, pewter replicas of a statue of Elvis Presley, a “Howard Hughes” game which included Hughes’ name and other biographical information, and a board game utilizing the names and biographies of famous golfers, have all been found to infringe the right of publicity: see Presley, supra, p. 1358. All were found to be commercial products which were not vehicles through which ideas and opinions are regularly disseminated. (para 21) (Emphasis author's own.)

Thus, there isĚýnot much doubt that in a Canadian context, the case would have been similarly decided.

Analysis and Opinion
There are two particularly unsettling components of this case: that it took the courts so long to come to this fair decision, and that even with it, there was still a dissenting judge who supported the transformation argument.

This decision is fair based on the reasons argued, but it is also intuitively fair in my opinion because of the lack of options afforded to the individual players. NCAA bylaws prevent college athletes from receiving compensation for their skill or status. This means they can’t sign endorsement deals or barter away their likenesses, even if they wanted to do so. Yet, at the same time, the NCAA is signing exclusive rights deals with video game makers like EA in order to create these profitable NCAA league video game franchises. The likeness appropriation is clear, as is the commercial motivation. Quite simply, the system was designed to exploit the players. Keller and the co-plaintiffs made the right decision in suing.

Finally, arguing that the game was sufficiently transformative in its whole so as to override the individual identity infringement is a difficult pill to swallow. Yes, it is a video game. Yes, there are ways to alter and change certain characteristics of the game. Yes, there are no last names on the jersey. Yes, there are many potential arguments that amplify the differences between IRL (in-real-life) Keller and video game Keller. But at the end of the day, they are all attempts to create legal loopholes to avoid the ultimate truth: a company does not have the right to profit from a person’s identity without permission. The transformation allowance is meant to be more substantive and rights-protective in its application. It is gratifying to see the court reject EA’s attempt to use the First Amendment’s transformation allowance to override personality rights, because to do so would have been an insult to both crucial legal concepts.


Denise Brunsdon is an IPilogue Editor and a JD/MBA Candidate at Western University.

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A recent out of California dismissed the case of NFL Hall of Fame player Jim Brown against video games giant Electronic Arts (EA), producers of the popular Madden football series. Mr. Brown alleged that EA misappropriated his "name, identity and likeness" by using a representation of him on some teams in the game. The dismissal was granted based on a First Amendment defence that protects "expressive works" such as video games.

Many of us from Generation Y grew up playing sports video games where Michael Jordan, Barry Bonds or Wayne Gretzky were not included because they did not agree for their likeness to be used. Instead, video game developers simply made replica players on the same team but with the players' names excluded. This is what is done in Madden for "historical" players who do not have a licence with EA for their likeness.Ěý While this has not been an issue in the past, Mr. Brown felt that his replica player, who has his approximate physical attributes but not his name or correct jersey number, was a misappropriation of his likeness.

Specifically, Mr. Brown put forth an unfair competition claim under , under a theory of false endorsement. In general, this claim alleges the misuse of a trademark based on some distinguishing characteristic which is likely to confuse customers about the plaintiff's sponsorship of the product. The First Amendment provides a defence against Lanham Act claims asserted against the creator of expressive works. Based on the test from , the following two part test must be met for the claim to succeed:

1. The defendant's use of the plaintiff's mark must be relevant to the underlying work.
2. The use of the trademark must explicitly mislead customers about the source or content of the work.

While the use of the Jim Brown doppelgänger was held to be relevant, it was ruled that "a leap of logic" would be needed to equate the use of the anonymous, mis-numbered player to endorsement of the game. This seems to be a just ruling based on the Rogers test. In fact, given the aforementioned history of the video game business and that all players used in advertising and marketing of the game are represented in game by their actual names and numbers it does not take a "leap of logic" to conclude that EA is implicitly showing that Brown chose not to endorse the Madden game.

Canadian is slightly different to the law applied in Brown. In order for the tort to be established, the plaintiff must prove that:

1. The exploitation of the plaintiff's identity must be for a commercial purpose;
2. The exploitation must clearly capture the plaintiff.

This brings forward a much different issue than the Rogers test. The endorsement question is absent from this evaluation. Using the Canadian standard, the Brown case would turn on whether the replica player "clearly captures" the plaintiff. It seems that Brown would have actually succeeded, as the judge seemed prepared to concede that an avid football fan would be able to recognize the great Jim Brown as the running back on the historical teams of which he is a part.

In an interesting development, several former NCAA football players have suit against EA and the NCAA for using their likeness in EA's college football game. Because the claim was made based on the "illegal profit" made by the NCAA rather than Brown's "false endorsement" argument, the players' lawyer does not expect the First Amendment to apply. Their claim may be stronger than Brown's because EA uses their actual jersey numbers and EA even has a where the user can download the players' actual names. Some argue that the NCAA has long departed from amateur ideals and has turned into a professional sports organization that does not pay its athletes. These people claim that the NCAA unfairly exploit their unpaid student athletes by collecting vast amounts of money from ticket sales, TV rights and jersey sales. Thus, this is a huge case for the NCAA for if they lose, it may open the floodgates for likeness claims regarding jersey sales, promotional materials and more.

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