ST. PETERSBURG — They see their old numbers on replica jerseys still worn proudly by fans at college football and basketball games. They see their likenesses used in successful video games and their biggest college games rebroadcast on channels like ESPN Classic.
And a group of former college athletes have a question for the courts: Why aren't they being compensated when others are making money off their college playing days?
"It's compelling because it's one of the last vestiges of abuse in terms of exploitation of people's work performance," said Michael Hausfeld, a Washington, D.C., attorney representing 15 former athletes in a class-action lawsuit filed two years ago against the NCAA and its licensing representative, Collegiate Licensing Company.
The case — known publicly as O'Bannon vs. NCAA because the best-known plaintiff is former UCLA basketball star Ed O'Bannon — is expected to continue in the discovery phase until late this year, with a court trial possible by next summer. Another lawsuit was filed by former Nebraska quarterback Sam Keller (who was on the Bucs' roster in 2008 preseason) specifically against video game giant Electronic Arts Inc.
The issue was brought up in May by ESPN analyst and former Heisman Trophy winner Desmond Howard when he spoke at the national convention of Black Coaches and Administrators at the Vinoy in St. Petersburg, with NCAA president Mark Emmert present.
"My fight is that if you use my likeness, I should be compensated," Howard said. "If you sell a jersey with my number or my name on the back, I should be compensated. I think it's wicked that you have 17- and 18-year-old kids sign scholarships that give their rights to the NCAA far beyond their playing days. Really?"
The NCAA reiterates that it does not acquire or license student-athletes' likenesses or prevent them from doing so — in most instances, the national letter of intent signed by athletes includes only a clause that allows the NCAA to use their name or picture to promote NCAA championships or other events and activities.
The perception is still there that athletes deserve more than a degree to show for their college careers. Howard wasn't done railing against the money being made off the accomplishments of former college athletes.
"I think … it's damn near indentured servitude," Howard told his Vinoy audience. "You control my likeness forever. How did we sign a deal where you get something forever and I get something on a year-by-year basis? If I want to go get my Ph.D. from Michigan, you should pay for it. You should be committed to my education for the rest of my life."
Moments after that, Emmert was asked about the case, and while measured in his words, he seemed to show sympathy to Howard and other athletes who feel the same way he does.
"I have to be very careful with my responses, because we do have an active lawsuit going on," Emmert said. "I won't talk at all about the specifics of the likeness case. I will say it is a complex issue that has gotten and will continue to get more complicated. Media rights change very rapidly, and the need to respond to those changes is acute. We certainly need to think carefully about all those policies. I'm trying real hard not to get myself in trouble with my lawyers: Desmond didn't say anything that offended me."
The lawsuit's scope has since expanded, with cease-and-desist letters being sent to ESPN and other major networks that broadcast college sports, suggesting they do not have the right to show archived images, names and likenesses without the athletes' permission. Royalties that go to the NCAA and CLC would be placed in escrow, according to the letters, asking that networks negotiate contracts with individual athletes.
The logistical challenge of tracking down every player participating in a football game, for instance, would seem an insurmountable challenge, let alone the task of deciding how compensation is determined over the course of 100 or so individual negotiations.
"The exact same practice is prevalent in professional sports," Hausfeld said. "The broadcasters pay a licensing fee for the use of those names, likenesses and images, which goes to the athletes themselves. … That portion of the license fee rightfully belongs to the athletes themselves and no one else."