College Athletes Take ESPN, Broadcasters to Court for Share of TV Bounty

The movement to compensate college athletes took a twist recently when a group of 10 collegiate football and basketball players sued not just athletic conferences, but ESPN and the broadcasters that reap a growing windfall from televising their games.

A key hearing is scheduled in a federal court in Nashville on April 13, when a judge will hear arguments on whether to dismiss the class action suit brought by the athletes or to allow the case to proceed. If it does move forward, that will be a victory for the players, who are bolstered by a federal court decision last year in which a judge concluded that the NCAA couldn’t block former UCLA basketball star Ed O’Bannon and 19 others from receiving compensation for the use of their images in videogames and certain types of broadcasts. The 9th Circuit is considering an appeal.

The case against the broadcasters and ESPN, says Glen Rothstein, partner at Greenberg Glusker, is a step in the evolution of litigation surrounding compensation for college athletes. “This is the next case that is going to push the envelope,” he says.

In their lawsuit, the athletes argue that their likenesses, names and images are broadcast as part of a multibillion-dollar business enterprise, yet they receive no compensation. Among other things, they cite a right of publicity law in Tennessee, as well as violation of antitrust and trademark laws.

They say their situation is “akin to that of a movie production in which the parties involved (including the director, the casting agent, the film company and the distributor) share millions, and perhaps billions, of dollars in compensation, while the actors receive nothing.” Also named as defendants in their lawsuit are licensing agents WME Entertainment and IMG Worldwide.

The networks argue that they did not create the NCAA’s amateurism rules that prohibit payment, and have no ability to eliminate them. They also challenge the effort to pursue the Tennessee right of publicity claim, pointing out that the law excludes rights claims based on sports broadcasts. And they offer an analogy of their own: “Professional athletes negotiate their compensation for playing games (including the broadcast of those games) with the producers (their teams of leagues); broadcasters purchase rights from the teams or leagues as producers.”

Broadcasters also take aim at the O’Bannon decision. In an amicus brief filed for the NCAA’s appeal, they argue that the judge’s decision raises the prospect that every participant in a sports or entertainment event could control the way they are depicted or even mentioned in a telecast.

Even if the lawsuit against the broadcasters is thrown out, the debate over payment for college athletes will continue. Even President Obama, in an interview with the Huffington Post, has weighed in on the need to take “better care” of student athletes. NCAA exec Oliver Luck recently told an Indianapolis Fox station that while the NCAA believes it would be detrimental to pay athletes to play college sports, there is a question as to whether athletes should be compensated for the use of their name and likeness.

Notes Rothstein: “I think the tide of public opinion is going to be on the side of the athletes. There is so much money made by broadcasters and everybody else.”

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