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The Tulane Law School Sports Law program provides students with the background necessary to understand and handle problems unique to the sports industry.

Tulane Sports Law Blog

College Athletes and the Right of Publicity, Part 1

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Written By: Andrew Sensi

In the past few years several lawsuits have been initiated by former collegiate athletes seeking compensation for the alleged use of their likenesses in video games and other products licensed by the National Collegiate Athletic Association ("NCAA") and its member institutions. From lesser known athletes such as Sam Keller and Ryan Hart, to well-recognized athletes such as Oscar Robertson, Ed O'Bannon and Bill Russell; former student athletes have alleged various violations of their right of publicity. Sam Keller and Ryan Hart's claims stem from the video game series NCAA Football produced by Electronic Arts ("EA"). Likewise, Bill Russell's claim stems from EA's alleged use of his image in an NCAA basketball video game. Meanwhile, Oscar Robertson and Ed O'Bannon claim that the NCAA, EA and the Collegiate Licensing Company ("CLC") have (1) conspired to fix prices for the use and sale of their images at zero dollars, and (2) engaged in a group boycott by requiring student athletes to relinquish publicity rights in perpetuity.

This post is the first of several which will examine the history of the right of publicity, the justifications for and criticisms of the law, along with the potential success or failure of these recent suits. This post will focus on defining the right of publicity, and tracing its history.

The right of publicity is "the inherent right of every human being to control the commercial use of his or her identity," and until recently was generally successful in securing to persons the commercial value of their identities. In general, the elements of a right of publicity claim are (1) use of a person's identity, (2) for a commercial purpose, (3) without their consent. The term identity is broad and includes, but is not limited to a person's name, nickname, photograph, voice, likeness, and persona. Two commonly asserted defenses to a right of publicity claim are copyright preemption and the First Amendment.

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Disturbing Trends in Stadium Safety

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Written by: Emma Stendig
With Research Assistance by: Eric Ferrante

Brian Stow, the San Francisco Giants fan beaten at Dodgers Stadium early this baseball season, was finally released from the hospital and into rehab this month.  But the debate about stadium safety, especially in professional baseball and football, continues to make headlines.  Leagues and stadium operators face a myriad of issues; including pat downs, tailgating, intense regional rivalries and unsafe conditions.  In an era when live-game-attendance is in serious competition with television broadcasts, leagues and teams must make a concerted effort to ensure the safety of their stadiums if they are to stand a chance in attracting spectators to their events.  Yet, it remains to be seen how leagues and stadium operators are going to deal with these ongoing problems.  One thing is clear though, no matter what they decide to do, they have to address the role that alcohol plays in the majority of the incidents that have rocked the sports world.
Long before Brian Stow, the NFL instituted mandatory pat downs at all games.  Shortly after 9/11 the league recognized football games and stadiums as "soft targets" for terrorists, highly visible events followed by millions that also uniquely embody American values and celebrations.  As the only league with mandated pat downs, the NFL looks to shield itself, host teams, and stadium operators from massive tort liability in the event of an attack.  While most fans are accepting and understanding of the pat downs, constantly reminded by signs and stadium personnel, there is a minority who strongly oppose the pat downs.1
An ACLU representative has described the pat down as "essentially being groped by a stranger." Others cite the 4th amendment which requires physical searches by government personnel to be reasonable.  Critics of those who oppose the pat downs say the criticisms are unfair and fans consent to them by entering the stadium and attending the game.  Nevertheless, the California Supreme Court decided a case in March of 2009 holding that ticket holders adequately alleged a legally protected interest and a reasonable expectation of privacy not to be subjected to pat downs when attending a football game.  Still, violence at football games persists despite the pat downs.  A little over a month ago, on the ten-year anniversary of 9/11 a fan attacked another fan with a taser during the Jets home opener against the Cowboys at New Meadowlands stadium in New Jersey.2   The man was charged with aggravated assault and weapons possession charges; he was later released on $22,500 bail.  Despite increased security for the anniversary, no one could explain how the taser made it past security during the pat down and into the stadium.

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