The plaintiffs in a federal antitrust lawsuit against the National Collegiate Athletic Association presented documents on Thursday showing that television networks appear to obtain the rights to athletes’ names and likenesses for use during live sporting events.
Lawyers for the plaintiffs believe the documents, which were presented at a trial here involving Ed O’Bannon, a former UCLA basketball star, will help convince the judge overseeing the case that big-time college athletes deserve a share of the vast television revenue in college sports.
The plaintiffs showed a 2011 contract between the Big 12 Conference and Fox that included language suggesting that the league had handed over the name and image rights of players, a key issue in the O’Bannon case, which concludes its fifth day of testimony on Friday. Mr. O’Bannon and other current and former players have sued the NCAA over its limitations on the commercial use of players’ images.
The NCAA disputed the meaning of the language, saying that it was not necessary for the association and its member conferences to acquire the name and image rights of athletes because the players don’t legally have those rights.
Neal H. Pilson, a former president of CBS Sports and an expert witness for the NCAA, said that while many television agreements mention athletes’ names, images, and likenesses, the contracts do not include the transfer of players’ rights.
Mr. Pilson said that sports broadcasters negotiate for “exclusive access” to televise events, not for the right to show the players. Even though the contract language might suggest otherwise, he emphasized that, in his nearly 40 years in the television industry, he has never been part of a negotiation in which a broadcaster needed to obtain the rights of participants.
“There’s an understanding that that’s not necessary,” he said.
Contradictory Testimony
Ed Desser, who has negotiated hundreds of sports agreements, testified for the plaintiffs that sports entities grant the rights to show the games, not an empty stadium, and that it is impossible to televise a game without showing images of the participants.
The Big 12 agreement, which was shown briefly on video monitors in the courtroom along with various other NCAA and major-conference agreements, contained language describing the right to broadcast the performance. The excerpts did not appear to mention access to facilities.
The contract gave Fox the ability to use “all name and likeness rights of all participants, officials, competing teams, and any other persons connected with the events that are reasonable or necessary for the telecast.”
The contradicting testimony highlighted one of the many challenges of this case, which tests the NCAA’s rules on amateurism. Antitrust claims are among the most difficult to understand, and college sports is a complex enterprise, even for a federal judge.
Several times here this week, Judge Claudia Wilken, of the U.S. District Court, has raised questions about witnesses’ testimony, looking to understand, among other things, difficult economic concepts and the flow of money in college sports.
Each side has a different set of burdens to prove, and it’s still early in the trial, which is expected to last three weeks. Legal observers say it’s difficult to know how the judge will interpret the issue of players’ names and images.
Thursday’s testimony may have looked damning for the NCAA. But in an interview after the proceedings, Donald Remy, the association’s top lawyer, suggested that it had adequately shown the difference between networks’ having the ability to televise athletes’ images and needing or having the rights to those images.
“It’s clear now that what happens in these license agreements is not the licensing of name, image, and likeness rights of individuals,” Mr. Remy told reporters. “What’s happening in these agreements is providing the exclusive access to the facility to allow individuals to bring in their equipment and broadcast the game.”
‘A Land Rush of Agents’
Michael D. Hausfeld, the lead lawyer for the plaintiffs, saw it differently. The NCAA has tried to show that the names and images of athletes have no value, he said. But the fact that there are even license agreements suggests otherwise.
During his testimony, Mr. Desser, the plaintiffs’ TV expert, said he could not remember a time during his 37 years in the business when a broadcaster asked about permission to use participants’ name and image rights. That discussion doesn’t even take place, he said, because of indemnification clauses in TV contracts that guarantee broadcasters that the NCAA or its conferences have all the necessary participant rights.
Whether or not broadcasters have the rights to athletes’ names and images, NCAA officials made it clear on Thursday that they do not believe that athletes deserve a share of the revenue produced in television broadcasts.
Allowing players to enter group-licensing agreements would “change the fabric” of major-college football and basketball, said Mr. Pilson, the NCAA’s television expert.
“It would have a negative impact on the public’s perception of those sports,” he said.
He also cited recruiting concerns, saying that it would be “distressing” to high-school athletes to be recruited so aggressively. And he suggested that it would lead big programs to turn the game into a money grab.
“You would have a land rush of agents and big money,” he said, “chasing high-school seniors and juniors to get them to play at given schools.”
He testified that he had concerns about high-profile players’ receiving million-dollar compensation.
When a lawyer for the plaintiffs asked him what amount of compensation would make him uncomfortable—"Does the number 25,000 bother you?"—Mr. Pilson said it would depend on which team was giving the money and how it was allocated or decided upon.
Then he said something that the plaintiffs will probably seize upon when they make closing arguments to the judge.
A $1-million payment to a player would trouble him, he said. But $5,000 wouldn’t.
