If you really want to understand why I think the NCAA’s control over player likenesses is wrong, let me introduce you to my poster boy, Tyrone Prothro.
Three years after suffering a gruesome career-ending injury in 2005, former Alabama star Tyrone Prothro wrote a book, Catch & Hold. He wanted to include some action shots from his playing career, but upon contacting a university photographer he learned he’d have to buy the images from the school’s website for $10 apiece. So he didn’t include them…
… In 2005, however, just months before breaking both legs on a horrific freak play, the receiver made “The Catch,” a spectacularly rare play that won that year’s Pontiac Game Changing Performance award, earning his school $100,000 for its general scholarship fund.
Over the next year, Prothro watched “The Catch” replayed over and over in ads for the award with a Pontiac logo stamped on the highlight. Yet neither Pontiac nor the game broadcasters sought to compensate him for use of the image, because they didn’t need to. If they had, Prothro, who had college eligibility remaining, couldn’t have accepted it.
Even three years later, he learned, he still did not control the rights to his own images as an Alabama football player…
There are so many things wrong with that picture, particularly when you factor this in, it’s hard to know where to start. And it’s why I hope the plaintiffs kick the NCAA’s ass in O’Bannon. Because nobody else in America, including the people who run the athletic departments and the NCAA, has to put up with that kind of restriction on their person.
Get The Picture 
Great example of this issue. I’m with you.
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I wonder how Alabama would react if someone were to reproduce Alabama trademarks and likenesses without paying them? Oh right, they’d spend $1.5 million in court trying to stop it.
http://blog.al.com/spotnews/2013/09/judge_dismisses_trademark_laws.html
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Daniel A. Moore will never eat lunch at Dreamland again
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I was at BD for both the “Catch” and his gruesome injury. Very special player. Would not be surprised if he has lifetime medical issues with that injury. I ‘m with you Senator, NCAA needs to get seriously whoop assed.
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The catch occurred at BD, but pretty sure the injury occurred at the swamp. Either way, if I recall it was not the injury that messed him up so much. He contracted a staff infection in his injured leg, which led to a lot of issues and pretty much ended any hopes of returning to the field.
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Reputedly the injury caused the infection because of the way his leg was exposed to the turf.
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Wrong. They were playing the Gators but at BD. I was there.
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I believe it was several nasty infections. If I recall, they were bad enough to consider amputation. He was a good enough to be a draft pick too. ESPN needs to do a 30 for 30 on this.
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Yeah, he would at least have gotten a chance as a kick returner.
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Did you read the article, linked the other day, that noted that upon his tenth surgery the surgeon told him his university benefits were about to expire? Two things said yesterday about this case that I dispute:
Senator is right. Prothro deserved better.
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I hope the NCAA takes it squarely on the chin here where we get real reform on trading on name and likeness. I wholeheartedly support the ability of a player to be able to endorse a product, sign autographs, etc. for payment as long as it doesn’t interfere with his athletic or academic responsibilities.
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Me too and it’s my hope for tomorrow that someday the feeder schools will get their teeth knocked out for trading on football players who they discard after their usefulness as inventory is over.
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+1 more to both sentiments.
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We all have our opinions, and while I understand I am in the minority on this one, I strongly disagree. The school/NCAA provides the platform for the player’s exposure and is entitled to the goodies. I liken it to a company that requires you to sign away your rights to inventions/products you create while in their employ, using their facilities. I have always supported some level of spending money (say $400-500 per month) to be paid to full scholarship athletes in sports that generate plus revenues, but still feel the full scholly, alone, represents “compensation” enough to make players employees when it comes to the university’s control over situations like this. If the player chooses to market himself another way and not go the college route, more power to them.
I say this not to engage in a debate over this topic, just to state another viewpoint since the vast majority here seems to feel this is unfair to the athlete. I don’t find it inconsistent to feel this way while still supporting the schools’ need to step up on compensation and insurance coverage. I also feel any ruling which opens Pandora’s Box on this issue will contribute to the sport’s collapse. It may not be “pure” amateurism at this point, but adopting pay for image to me puts it significantly closer to the NFL category of professional athlete.
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I agree that the university should be able to trade on the athlete’s likeness as well, but to charge said player for personal use of their own likeness as described above seems ridiculous. We agree on the concept of full cost of attendance scholarships as well. I think the Senator’s stance is pretty reasonable: CAPA’s demands, full cost of attendance and trade on likeness.
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Weak analogy, Mac. But even in that case, you can consult with an attorney before you sign so at least you can make an informed decision. The NCAA won’t even allow recruits that much.
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Ding ding ding.
Employees have representation and options. One company wants you to sign away everything to them, another company says you can keep everything you create. You get to decide which works better for you.
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They often also have…wait for it… a union.
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In addition, and what makes the situation more legally culpable to my (only a legal observer) mind, is that there is no option other than the NCAA.
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Waiting three years for the NFL is an option. It may not be as good an option as the NCAA option but it is an option. So to say that there is no option is really not true. However, saying there is no equivalent option is probably accurate.
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Come on, that’s not a real option. No one’s going to draft a guy who sat out and got soft for three years.
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Yeah, that’s like saying that you don’t have to get an undergraduate degree to be a lawyer, or a doctor. If it is true, it’s only in a technical sense. No medical school, or law school, or NFL team, is going to take a kid that skipped college.
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Under Mac’s analysis the college player would have to be an employee of the college in order for the college (employer) to get the benefit of the player signing away all his rights “like rights to inventions/products” they create.
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If a student writes a best-selling book, I don’t think the University gets a cut, even if it’s about the University. [See, e.g., Scott Turow and “1L”]. If a student stars in a movie or TV show (or doesn’t star, but just appears in), the University doesn’t get a cut. [See, e.g., Joseph Gordon-Levitt or James Franco at Columbia, or Jody Foster at Yale, or Emma Watson at Brown; or any number of kids that went to UCLA, USC, or NYU]. Even if a student invents, say, a social media website that makes him a billionaire using University resources to do it, the University doesn’t get a cut. [See, e.g., Facebook].
These aren’t just examples where the student gets to share in the profits. These are examples where the student gets all the profits. All of them. Even if the University helps greatly in perfecting the work, and even in marketing the work (Kim Wozencraft wrote “Rush” as part of her MFA, and Columbia helped her get it to agents and get it published), the University doesn’t get squat. Only athletes get nothing.
And even in Macallan’s example, the prospective employee has options, don’t they? Real options. Like, they can negotiate for a cut, or they can negotiate to better define what inventions might or might not be covered by the clause. They might even have a union that has hammered that sort of thing out in a CBA. Or they can choose to take their talents elsewhere, to another company that will give them — and is not prevented from giving them — a better deal. For it’s part, the company has no limits other than its own estimation of the employee’s potential worth. It doesn’t have deals with its competitors that it’s only going to offer so much and no more — and if it does, there’s a world of anti-trust law poised to fall heavy on it.
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Mac, as a free market guy, which I think you are as well, my problem with any analogies in that regard is that you are dealing with a protected industry between the NCAA and NFL. This is not the free market, and if they want the protection of the govt then we get to regulate the **@# out of them if we so choose in order to protect the people who this collusion is hurting – the “worker”, or in this case the person who has no choice but to apply his skills in college because the collusion has shut down his free market options by giving potential employers significant barriers to entry to compete with the existing model.
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Which is why I feel there will be a developmental league as an option, or a lawsuit that will forbid the NFL from discriminating on the basis of age. This is why the 3 year rule came into being when Herschel signed with the USFL, imo. It was a negotiated compromise to keep both sides happy. I don’t feel the 3 year NFL agreement would stand up to a court challenge but your current statement regarding the lack of a “free market” is accurate.
Signing away rights of intellectual property is generally a part of an employee contract when new employees are first hired and are just glad to have a job. If it is my company, I would kick both the applicant and the attorney out of my facility if they came in demanding to take ideas that were born on my premises, using my computers, conference rooms, and labs. Generally they are offshoots of ideas from team discussions or conversations at conferences I paid for them to attend, or perhaps from additional courses where I paid their tuition. If they don’t like those rules, they are free to walk.
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I meant to ad, that is very different from where a student creates an idea for a piece of music, art, music, etc. If an idea, outside the area of my business, is developed in their home garage, I would have no say in them keeping all the rewards from that.
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Oops, literature, not the 2nd music. Back to the golf tournament.
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But the analogy still fails because your example is really no different from students creating works of art. There are acting majors, film majors, creative writing majors, music majors, etc. They take classes at the university, learn to be better actors/writers/musicians/whatever. They can sell those skills and make money off of those skills — often with help from the school — and they can pocket all the money. It’s only athletes that get screwed.
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I don’t see it as even remotely close to creating a work of art. Just a difference of opinions, surprised anyone draws that as an example. UGA furnishes a uniform that has been worn by others for decades, perhaps if the player sells a picture of himself in his HS uni he would be entitled to money. I doubt that works though, Georgia owns the uni, and that is why folks buy it. Put him in street clothes and see how many dollars you rack up.
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I don’t think there’s even a remote chance either one of those will happen.
1) The NFL has no need or desire to start a developmental league. It would be a monumentally expensive undertaking in return for minimal (if any) marginal gains. The NFL can already virtually print money under their current system; why make that huge an alteration to it?
2) Even if the NFL’s 3-year rule didn’t stand up in court in principle, it would remain in effect in practice. The chasms between high-school football and college, and college/NFL, are so great that even some supremely accomplished four-year starters can’t make the jump successfully. The NFL could strike that rule tomorrow and I still doubt you’d see more than a handful of college sophomores get drafted, if any — and a fresh-out-of-high-school kid who declared for the draft would get laughed right out of Radio City Music Hall.
The way the system works now, the NFL gets an incredibly qualified and well-trained labor pool to choose from, and they pay that labor pool handsomely. The only reason they would alter that situation, whether it was with a D-league or an end to the age requirement, would be to pull the NCAA’s ass out of the fire. I can’t imagine they feel any compunction to do that, and I still don’t understand why the don’t-pay-players camp continues to try and make this the NFL’s problem.
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You may be right, Doug. I don’t think the NFL wants to change the status quo, but the changes that may come will rock the foundation of the status quo whether they like it or not. Costs can be handled with a potential TV contract in non-competing time slots. There doesn’t have to be but a handful of teams to accommodate the true NFL prospects and pay doesn’t have to be that high. I don’t know how it will be play out but the balls are all in motion and while no one knows what changes will be involved when it settles, CFB and how it handles the high profile players will be very different. I just don’t think the genie can be put back in the bottle. The lawsuits and organization efforts have let the fox into the henhouse, primarily because of lack of action and leadership to obvious needs.
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Maurice Clarett already challenged the NFL’s draft rules that athletes wait 3 years after high school. He lost.
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That won’t change as long as it’s part of the labor agreement.
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True, I forgot about that. Just needed to file that case out west, no way they would have turned that down.
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This situation is utterly and completely wrong from any ethics, fairness and logic perspective. As I’ve pointed out in comments here before, if a fine arts major on scholly created, say, a painting of a player in a casual, non-football pose, and sold it for $50,000, her scholly would be safe, no penalty, nothing. Could the player paint a self-portrait and do the same? If a business student on scholly opened a sports themed restaurant and made big bucks, he’d probably get special recognition for his prowess and keep the scholly–unless he also happened to be a football player and any of the patrons happened to be alums. That makes no damn sense whatsoever.
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Painting of the player could be subject to copyright infringement. Just sayin’…they have laws about that too (don’t go thinking you’re going to get away with that portrait of Mickey Mouse you’ve been thinking of doing).
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(…and that’s why Prothro had to pay UA for pics of himself.)
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This is my issue with the whole thing. Now while the photographer/copyright holder of “the image” IS entitled to being compensated for his/her rights to that image – believe it or not, photography is a job worthy of compensation – in order to license that image for commercial use you have to have written consent from all models in the form of a Model Release. So essentially there are 2-3 parties that have to allow rights to the use of the image – one is a “professional” photographer, the other being an “amateur” football player and possibly the “property” holder (owner of the university likeness – logo, name, etc if these things are prominent in the shot) based on the agreement that the player signs when they become a part of the university that essentially gives the university that release, with all inclusive rights to use the players likeness in any and all media in perpetuity with no compensation.
So it’s essentially a rights grab that is present in no other photo project that I have ever been a part of in 10+ years of licensing photos. It is an agreement that wholly benefits the schools and their relationships with corporate sponsors, and after the players career is over he/she is left with nothing. The solution to the whole ordeal is simple. Allow the players to profit off the commercial license of the images, with a percentage of each commercial licensing agreement being put into the players bank account account (or shit, even an escrow for after the player’s amateur status has been exhausted), and allow them to negotiate further use of the image after this time with the university and photographer. It’s so cut and dry, and there is an industry already developed to handle the needs of this type of agreement (copyright lawyers – yes the lawyers always score), but the University and their corporate sponsors with all of their resources (and PROFITS!) simply do not want to have another party at the table when they are working out their deals.
So instead of paying the players to “play”, what could cut through all of this and absolve the NCAA from lawsuits like O’bannon, would be to allow them, through a representative party, to negotiate fair compensation across the board for the use of their image. So the next time we see those Pontiac commercials with, say Todd Gurley’s name and likeness being used along side a corporate logo, we can say “great job, Todd, you EARNED that dough”. Which he did. Editorial outlets could still use the images to tell a story without having to have a model release, photographers could promote themselves and commercially license the images that they work very hard to produce (with a percentage going to the player and the University), and everyone can profit – with possibly even more profits being generated by having a slew of photogs out there as licensors (read: salesmen).
All the university has to do is change the language in their contract, and allow the players a seat at the bargaining table, and its a win/win/win instead of a win/lose/lose. I know I have rambled a little bit here, so hopefully it makes sense – it sure does to me.
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(and in re-reading your post, I see you making the distinction of “non-football pose…OK, yes, you’re right.)
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yeah, I was cya-ing like crazy in my examples!
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My question is this….if Prothro gets licensing money from “the Catch” (and I think he should) what about the defender in the play? Can he not reap part of that money? How do you distinguish who receives what?
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