On day four of the O’Bannon case, the dual between the athletes and the NCAA over the players’ rights in their names, images, and likeness or NIL took place. The players argued that they own their NIL rights and the NCAA misappropriated those rights while the NCAA argued the players do not have such rights, at least in the context of live broadcasting of the games.
The plaintiffs presented several TV broadcasting contracts, including one between the Big12 and Fox. The relevant provision says, “The conference shall be solely responsible for securing all clearances with respect to all [participants] connected with each event, and such clearances shall include Fox having . . . all name and likeness rights of all participants.” Further, the NCAA’s deal with CBS and Turner had a provision essentially indemnifying the broadcasters against any legal claims originating from the deal. The provision in the CBS/Turner contract stated that “[t]he NCAA represents and warrants that the recording and capturing of the Game and distributing the actual video of the live action . . . does not violate any statutory or common law rights of privacy or publicity of the individual participants . . . .” The plaintiffs’ witness Ed Desser, a sports TV consultant, further commented that NIL rights
“are at the heart of what’s being conveyed . . . [because] [n]o television network wants to show an empty arena or blur out the players taking part in it.”
On the other hand, on cross-examination by an attorney for the NCAA, Kelly Klaus, Dresser admitted that some telecast contracts do not mention NIL rights. Moreover, Klaus argued California does not recognize NIL rights in the context of live sports broadcasting.
Next, the NCAA called Neal Pilson, the former CBS Sports president, to the witness stand. He testified that compensating those players for using their NIL rights in live telecast would turn those sports into “just another professional sport” and that the fans would not like it. He further said that the broadcasters typically consider that NIL rights are included in their “exclusive access to sports events.
Previously, the presiding Judge Wilken had said that the student-players must establish that they “would have a cognizable right of publicity in the use of their NIL in live game broadcasts.” Thus, the players’ success likely hinges on their argument showing that such rights do exist.