Research “Trilogy” shines light on O’Bannon case and NCAA amateurism model

Caution: You are about to enter the “No Spin Zone.” This is not exactly light reading, either. If you’re a compliance geek and you’ve been closely following the O’Bannon case, then you’ll find this interesting and informative.

If you’re not familiar with O’Bannon, here are the Cliffs:

Ed O’Bannon is a former UCLA basketball player who sued Electronic Arts and the NCAA over their use of his likeness in video games without compensating him. O’Bannon got former Alabama receiver Tyrone Prothro and others to join his lawsuit, and together they attempted to get their case certified as a class action lawsuit. O’Bannon has the potential to completely unravel the financial model of the NCAA as well as bring an end to their amateurism model as well. It is a case that’s closely followed by the media, the legal community and those who make a lot of money on college athletics.

Dr. Anastasios “Tassos” Kaburakis is a practicing attorney and Professor of Management & Sports Business for the John Cook School of Business at Saint Louis University. This blog as often relied on Tassos for expert guidance on NCAA compliance matters and the law. He’s conducted extensive research into the subjects at the heart of O’Bannon and his publications shed a lot of light on the background, foundation and potential consequences of the case.

Approximately nine years since a fateful meeting in a doctoral student’s office at Indiana University Bloomington, when the seeds were planted for this research stream, it is necessary and somewhat fulfilling to reminisce and reflect on the collaborative work that has taken place. I feel truly fortunate to have run into the research questions graduate students and I handled back then, and immensely grateful for the opportunity to serve conscientious and inquisitive young minds, while developing an empirical legal studies’ line of inquiry, which yields several useful contributions to both scholarship and practice.

Quite a bit has happened since those early days of the initial examination of NCAA student-athletes’ rights of publicity, the use of their likenesses in video games, and the various claims the three participants in that fall 2004 meeting and several coauthors in ensuing work forecasted. After some fundamental intellectual property theory and NCAA amateurism concepts’ analysis and presentations between the time of the initial meeting and the spring of 2009, in an eerie twist of fate, as the first paper from this stream was under review, the first case (Keller) was in fact filed, in May 2009. Weeks later the first part of our trilogy was published, and a few weeks subsequent to our first publication from this stream the O’Bannon complaint followed. Our research team continued working along this intellectual property and empirical legal research stream, and in the fall of 2011 we were happy to receive our second article’s acceptance.

Finally, almost four years since the commencement of the research investigation focusing on video-games’ consumer surveys and NCAA student-athletes likenesses, we have closure. This last paper marks the final part of our trilogy, encompassing the 2009 intellectual property theory piece, the 2012 student-athlete survey empirical article, and the latest manuscript featuring the consumer survey, published this spring. In the process there were a few interesting procedural lessons and insight gained (more analysis on academic research and third-party subpoenas, unretained experts, and scholars rights, will ensue in forthcoming scholarship).

Again, this isn’t light reading at all. But if you’re concerned over how O’Bannon could forever change college athletics, you should take some time to skim the findings. Generally speaking, Tassos believes that the NCAA may ultimately prevail, “if courts are convinced that a generic release signed annually by student-athletes encapsulates the underlying commercial use of their likenesses and identities at the heart of the pending litigation. If, on the other hand, courts hold that the particular use goes beyond what has been regulated by NCAA amateurism policy and embedded in student-athletes’ annual releases heretofore, then plaintiffs’ rights of publicity burden of proof will be partly met (i.e. they did not consent to such use).

This is the result of nine years of extensive research and includes the results of surveys administered to student-athletes and the video game consumer market, along with an extensive empirical legal analysis. I’m only part of the way through it all, but what I found most interesting were the differences between the two surveyed populations. Student-athletes think they should be compensated for the use of their likeness beyond their athletic scholarship, while consumers seem unaware that they aren’t.

Watching O’Bannon unfold will be interesting. More so after understanding the issues and underpinnings of the case.

Here’s the link to Tassos’ article again.

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