Legal Protection Shouldn’t Stop When One Hits Field
Black’s Law Dictionary defines appropriation or misappropriation as an invasion of privacy whereby one person takes the name and likeness of another for commercial gain.
For generations, a person’s right of publicity has allowed them to profit, often quite handsomely, from their name or likeness in movies, advertisements and video games. If a film producer wanted to make a biopic on an individual, they would have to pay that individual to use their name and/or likeness on screen.
If the theory of misappropriation is a well-established law in the United States, should college athletes have to forfeit their constitutional right just by accepting an athletic scholarship or walking on to a university’s football or basketball team? Although current NCAA rules strictly prohibit athletes, and the NCAA itself, from profiting from their name and likeness while in school, others like sports memorabilia dealers should not be able to break federal law at the expense of sometimes disadvantaged college students.
Many sports lovers believe that football is a year round sport, with the NFL Draft, mini camps, OTAs and preseason games, and that same mentality is true for college football, especially this summer.
Star athletes like Heisman Trophy winner Johnny Manziel of Texas A&M and all-everything defensive beast Jadeveon Clowney of South Carolina have recently had their eligibility questioned because of allegations that they profited from their name or likeness in their dealings with autograph brokers.
According to the Houston Chronicle, “The allegations from multiple autograph brokers, according to ESPN, are that Manziel accepted payments for autographs, and one of the network’s reporters, Joe Schad, said he watched a secretly recorded video of Manziel signing helmets for a broker in Connecticut. The reports cite no evidence of an actual money exchange.”
But if money was exchanged, would it be so wrong?
Now, rules are rules and if Manziel (Clowney was recently cleared of any wrongdoing) broke those rules he should receive punishment from the NCAA, because those rules are in place for a reason.
However, is it possible for the NCAA to tweak the rule and not allow the misappropriation of their college athletes by apparel companies, brokers or video game companies? Definitely.
The NCAA would argue that they do not allow misappropriation of their athletes because they do not allow jersey or video games to have the player’s last name listed.
But if I’m playing a college football video game and the quarterback of the Florida Gators is left-handed and wearing the number 15, I probably would think that he is Tim Tebow, not my cousins “Hootie” or “Boo-Boo.”
Most importantly, misappropriation laws prohibit people or entities from using look-a-likes or sound-a-likes if it causes confusion or if it makes people think that it’s the actual celebrity.
Furthermore, a description of that person is enough to cause misappropriation.
Anyway you slice it, the NCAA is liable for misappropriation of its players and that is why former college athletes like UCLA basketball standout Ed O’Bannon are suing the NCAA, and if the law is true to its word, the NCAA should prepare to write checks.
Paying college athletes is always a polarizing debate. Should stars receive more than walk-ons and how would smaller schools be able to afford to pay their athletes?
My solution to this problem is not to outright pay the athletes for their name and likeness while they are playing, but to set up a trust fund so that the money they would be paid goes into a pot and allow them to cash in on the proceeds in the pot when their playing days are done.
If we do not reward them financially for their sacrifice and hard work, we are simply teaching the next generation that it is OK to get rich off of someone else’s work, while the people who truly deserve the finances get nothing.