Sports & Entertainment Beat

When UCLA basketball star Ed O’Bannon saw his avatar used in an NCAA-branded video game for which he received no compensation, he decided to take action, and agreed to serve as lead plaintiff in a class action challenging NCAA rules prohibiting student-athletes from receiving a share of revenues earned from use of their names, images and likenesses.  The suit alleged that the restrictions constitute an unreasonable restraint on trade in violation of antitrust laws.

On Thursday, the NCAA Board of Directors voted to allow Notre Dame and the top five conferences in Division I - Atlantic Coast, Big Ten, Big 12, Pacific-12 and Southeastern Conferences (collectively known as the “Big 5”), to create their own rules in the following 11 areas affecting student athletes (the “Autonomy Measures”):

• Athletics Personnel;

• Insurance and Career Transition;

• Career Pursuits Unrelated to Athletics;

• Recruiting Restrictions;

• Pre-Enrollment Expenses and Support;

• Financial Aid;

• Awards, Benefits and Expenses;

• Academic Support;

• Health and Wellness;

• Meals and Nutrition; and

• Time Demands.

Professional athletes spend considerable time working with sports equipment.  Baseball players, for example, use different types of shoes, various protective equipment (such as helmets), devices to block the sun (such as bills of hats), and devices to otherwise improve performance (such as batting gloves to better grip a bat).  In part because of the time they spend using such equipment, and the time they spend on a field or court in front of a large crowd, not to mention the impact equipment can have on their athletic careers, professional athletes can recognize the desire for improved equipment to meet a need and can envision such improvements.  In at least a few situations, professional athletes have conceived of new ideas and have applied for and received patent protection for their inventions.

The National Labor Relations Board (“NLRB”) ruled on March 26, 2014 that Northwestern University football players who receive scholarships from the University are employees of the University and are eligible to unionize.

The NLRB cited several reasons for its decision, including that the University benefits from the players’ services through the compensation it receives for those services in the form of advertising, sponsorships, media buys, ticket sales, etc.  Additionally, it found that the University controls how and when the players perform their services and that these football players receive compensation for their services in the form of scholarships. The NLRB determined that football players receiving scholarships from the University are not “primarily students” and that their activities are rather economic ones that benefit the school.