Everyone remembers Kevin Ware's unbelievably painful-looking broken
leg right? If not, Google it. Be warned; it's awful. I'm intentionally not linking to the video since it seems that Ware prefers that it not be played over and over.
Apparently, Ware's team rallied around him following his injury and won the game. That kind of excitement is what college sports are all about, right? The NCAA sure thinks so; it has decided to sell t-shirts commemorating the injury and Louisville's subsequent victory. The shirts will have Ware's number on the back and the words "Ri5e to the Occasion" on the front and will sell for $24.99. The Nation reports that Ware and his family will receive no compensation from t-shirt sales, which especially smarts because college athletes aren't entitled to worker's compensation meaning that the NCAA probably won't have to pay Ware's long-term rehab costs.
Maybe Ware should consider an appropriation claim to collect some of the proceeds from those t-shirts? Even though it sounds appealing, this may be a legal dead end. Ware's face and name aren't on the shirt, which might mean that Ware can't show that his "likeness" was appropriated (see White v. Samsung Electronics finding that a robot designed to look like Vanna White and used in an advertisement was not a likeness such that White could support an appropriation claim under California law).
Ware may have to wait for the resolution of a current case, O'Bannon v. NCAA, which seeks compensation from the NCAA for the advertising use of student-athletes' names and images. Stay tuned!
I also wouldn't be surprised if college athletes have to sign a waiver form to the NCAA upon participation giving NCAA rights to jerseys and other memorabilia.
ReplyDeleteFair enough, Ian. Maybe that's why O'Bannon brings anti-trust and unjust enrichment claims instead of appropriation or publicity rights claims.
ReplyDeleteNo real privacy interest here. The injury occurred on national television, and his statements while getting carted off (along with the fact that they rallied his team) were very widely reported. And as you say, his actual image and name aren't used.
ReplyDeleteI hate the way the NCAA works, but that of course is a completely separate issue. I think it's an integrity problem (selling the shirts without offering Ware some of the money), but unfortunately a lack of integrity doth not a lawsuit make.
Clearly, the consent issue would be a major problem for players considering bringing appropriation claims. But it seems there's an underlying structural issue here that an appropriation claim couldn't address: currently, the NCAA can effectively force players to either consent or opt-out (not play) because for any player who refused to play under the existing system, there would be several more willing to take his place. The possibility of a lucrative pro career would surely be sufficient to induce enough kids to play that the NCAA could continue to thrive, even if it lost an appropriation case.
ReplyDeleteSo I guess what I'm saying is that, even if a court found that players hadn't consented to use of their likeness (however unlikely that might seem) and the NCAA lost an appropriation case, the current structure of the NCAA would have been left effectively untouched (because any finding that the athletes had not consented would tell the NCAA how to get adequate consent in the future). The O'Bannon plaintiffs don't want tort damages -- they want a way for the players to get a cut of the NCAA's business forever. So they needed something like an antitrust claim that could unsettle the existing structure of college athletics.