In a victory for college athletes, a federal court of appeals ruled in favor of former Rutgers University starting quarterback Ryan Hart in his case against gamemaker Electronics Arts (EA) who used his likeness in its popular NCAA Football video game without his permission.
A divided decision by the 3rd U.S. Circuit Court of Appeals overturned a dismissal of Hart’s case, affirming his right to challenge the use of his likeness without permission.
The court ruled that EA games did not sufficiently transform Hart’s likeness for the 2004-2006 versions of the game, and replicated his actual skills, appearance, physical features, and statistics in order to appeal to consumers.
In its ruling, the court determined that Hart’s right of publicity outweighed EA’s First Amendment right to freedom of expression. In short, Hart’s lawyers argued that EA stole the identities of players like Hart for profit, without permission or compensation for the athletes. "It's a wonderful precedent-setting decision for college athletes, professional athletes, and other well-known individuals who seek to protect their hard-earned fame and reputation against commercial exploitation by others for profit," Hart’s attorney said in an interview.
This is not the only case of its kind. In the high-profile case Ed O’Bannon v. NCAA the former UCLA Bruins star challenged the NCAA and EA’s right to profit off the use of players' and former players' likenesses. The class-action suit, which will likely be determined in June, has attracted a great deal of media coverage. It not only raises the legal question of whether or not a company or organization’s First Amendment right to freedom of expression can conflict with an individual’s right of publicity, but challenges the NCAA’s much-criticized policies regarding student-athletes at their core.
The NCAA, which is notorious for its questionable rules and practices, has received criticism over the years for its strict signing rules for its players, which many believe monetarily benefit the league at the expense of its players.
According to SBNation, Ed O’Bannon alleged that the waiver the NCAA requires athletes to sign “forking over” their names and images for use by the organization is a “contract of adhesion,” or a contract signed without negotiation. It seems clear in these cases that the organization and companies involved are hiding behind a loose interpretation of freedom of expression in order to keep profiting off of players. Perhaps these two cases will help pave the way for institutional change within the NCAA.