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NCAA Players Can Profit From Video-Game Likenesses: Dist. Court

By Mark Wilson, Esq. on August 11, 2014 | Last updated on March 21, 2019

The NCAA has been on the receiving end of a lot of criticism lately -- and rightly so. The NCAA, which has a stranglehold on the top college sports in the United States, sets out rules based on the fiction that college athletes are students first and athletes second, and that they play college sports simply for the love of the game. The rules are also based on the fiction that college sports are not a business. In the meantime, college athletes aren't permitted to earn any money from their athletic skills outside the scholarships their schools offer.

Former UCLA basketball star Ed O'Bannon represents a group of college athletes who are a little peeved that NCAA is making literally millions of dollars licensing their likenesses to anyone with a pulse, including TV stations, merchandise manufacturers, and video game companies. On Friday, Judge Claudia Wilken of the U.S. District Court of the Northern District of California agreed, finding the NCAA's rules were an unreasonable restraint on trade.


Through 47 pages of facts (out of a 99-page opinion), Judge Wilken was unpersuaded by any of the same reasons the NCAA offers to explain why it either can't pay athletes or can't permit them to at least receive some portion of royalties or endorsements. The NCAA failed to provide credible evidence that its numerous justifications for its restrictive rules -- maintaining the amateur nature of the game, appealing to consumers, maintaining competition in college sports, and putting academics first -- were necessary to achieve those ends.

Judge Wilken also found that the NCAA's practice of limiting the amount a player can receive in scholarships amounts to price-fixing, and emphasized "the commercial nature of the transactions" between colleges and players. Players get remuneration, though in an amount set by NCAA, which undervalues the market price for the players' likeness rights.

NCAA Can't Stop Players From Obtaining Royalties From Video Games

To that end, Judge Wilken enjoined the NCAA from enforcing its rules prohibiting players from licensing their likenesses, though only as it applies to video games. The court wasn't persuaded that the NCAA's actions were unfairly restraining players' trade in their likenesses in the market for television rebroadcasts or archival footage.

The important part of Judge Wilken's order is her extensive fact-finding, which put to rest all of NCAA's bromides about why it can't, at the very least, allow college athletes to make some money off their likenesses. As NCAA student athletes attempt to gain more rights in a recognition that they're university profit centers, not just folks who like to play the occasional game of basketball in between assiduous study sessions, this opinion goes a long way toward giving athletes the economic recognition they've been long denied.

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