Big payday for ex-college sports stars?
on Oct 2, 2014 at 6:40 am
Two significant First Amendment cases that have been awaiting the Supreme Court’s reaction for a year are on the way to being settled, with the real prospect that former stars in big-time college football and basketball will get a share of a $60 million fund. Of that, $40 million would be put up by the maker of video games about college sports, and $20 million by the National Collegiate Athletic Association — the group that makes policy for competition in collegiate athletics.
The proposed settlements, which will be circulated among collegians who previously played in the NCAA’s Division I (its “major league” for football and basketball competition), are due for a federal district court hearing next May on whether the deal is a fair one. In the meantime, the two sides agreed to end attempts (see here and here) to get the Supreme Court to rule on a claimed clash between the First Amendment and the right under state law giving people of some renown a legal right to exploit financially their own fame (the so-called “right of publicity”).
The NCAA and Electronic Arts Inc. — a video-game developer that has gained its own fame with games under the label “EA Sports” — have been in a running, years-long legal battle with former Division I athletes who gained fame for their playing feats. At issue were television broadcasts of the games in which the athletes had played, and video games using near-lifelike “avatars” of the collegians, with their feats open to manipulation by the players. The NCAA made deals for the broadcasts and the development of the video games.
The settlements that have won a California judge’s preliminary approval involve the class-action lawsuits against the NCAA and Electronic Arts over the video games.
The legal battle is not over yet, at least for the NCAA, because an ongoing lawsuit, now developing in the U.S. Court of Appeals for the Ninth Circuit, grows out of the athletes’ claim that the NCAA violated federal antitrust law by stifling competition for publicity about the stars’ performances on gridirons and basketball arenas.
The same judge who gave at least initial approval in early September to the settlement of the video games had ruled last August that the NCAA had violated antitrust law, and now must put together a fund that would give the athletes covered by the ruling $5,000 for each year they were featured in televised broadcasts of their games.
It has been estimated that the antitrust case could lead to payments totaling $300 million over a four-year period. That would be five times the size of the funds that would be provided to settle the two videogames cases against Electronic Arts. Those are cases about the “right of publicity.” Earlier, Electronic Arts faced an antitrust claim, like that against the NCAA, but that was settled earlier, and the antitrust case moves ahead in the Ninth Circuit only against the NCAA.
Meanwhile, at the National Labor Relations Board, the NCAA is fighting against a lower-ranking board official’s ruling that collegiate athletes are legally entitled to be treated as employees of their institutions, and thus are entitled to form and join labor unions to bargain over pay and working conditions. That dispute focuses on the meaning of federal labor law.
The two cases that were filed at the Supreme Court a year ago by Electronic Arts have been idling away for months on the Court’s docket, with the former athletes getting repeated extensions of time to respond. The issue in both cases — one from the Ninth Circuit, and one from the U.S. Court of Appeals for the Third Circuit — raised the same constitutional question: does the First Amendment right to free speech give video-game developers a right to create visual and sound games, and does that right provide a defense to a lawsuit claiming a violation of the “right of publicity”? Both circuits rejected that defense.
The “right of publicity” — a creature only of state law — dates back to the early 1950s. It got a major boost from the Supreme Court in 1977, when the Justices ruled that a television news organization had covered too much of the daredevil act of a “human cannonball.” That case was Zacchini v. Scripps-Howard Broadcasting, involving an act performed at fairs and carnivals.
However, that ruling did not draw a precise line to define where First Amendment rights end and a “right of publicity” begins, and the two petitions to the Supreme Court argued that lower courts have been developing conflicting constitutional and legal tests to apply to such lawsuits. Electronic Arts, in a petition from each of the two circuits’ rulings against it, asked the Supreme Court to clarify the issue.
Such “rights of publicity” lawsuits have spread rapidly, the petitions said, reaching filmmakers, makers of documentaries, authors, musicians, and others “whose expression includes the depiction of a real person.” The threat to free expression, the petitions contended, has only grown with the development of digital modes of creating real-life images — as in video games.
Because the athletes’ lawyers had not yet filed opposing briefs, they had not put before the Court their responses to the Electronic Arts arguments.
While the cases were awaiting the athletes’ responses, settlement negotiations apparently were going on between the two sides. The Court was notified of the progress toward a settlement on September 10. Then, last week, the two sides agreed as part of their deal that Electronic Arts would drop both of its petitions. When that situation develops, the Court automatically dismisses the case, as it did on Tuesday for both petitions, according to the Court’s docket.
