OTish: Spielman class action suit may be expanded.

Submitted by 74polSKA on November 29th, 2017 at 9:52 AM

On Tuesday, Chris Spielman's attorneys asked the federal judge to expand his claim against Ohio State to include 89 universities with IMG and Nike contracts. This would include many big name programs, including U of M. What do the MGoLawyers think? Does this lawsuit have legs? This was discussed in July when the original case was filed, but this adds a pretty significant dimension to the lawsuit.

https://www.10tv.com/article/chris-spielman-widens-lawsuit-over-commercial-use-player-images

Here is the original class action complaint:

https://www.courthousenews.com/wp-content/uploads/2017/07/OhioStateFootball.pdf

I know nothing about IMG other than their HS sports factory in Florida. Here is a list of their properties according to their website:

http://www.imgcollege.com/our-properties/colleges-universities

Comments

Blue in Paradise

November 29th, 2017 at 10:02 AM ^

What other group of people in the U.S. do not own their own image rights?  Can someone think of another group?

I literally can't think of any group of Americans other than university scholarship athletes who are not able to control / benefit from their image rights. 

The Mad Hatter

November 29th, 2017 at 10:33 AM ^

but they can also use any photo posted to their site for their own purposes, without compensating the person in the photo or the person who uploaded it.

Maybe that has changed, but I know it was the case a few years ago.  It was in their ToS and there were a few stories of people being pissed that their images were being used in advertisements.

Brian Griese

November 29th, 2017 at 11:11 AM ^

But I thought the specific issue was OSU used Spielman’s image in conjunction with a sponsor company to make an advertisement. Again, going off memory, I thought he said he didn’t care if OSU alone used his image, but did take issue with them using his likeness with a company he got no kickback for.

Edit: I think the company was Honda?

Blue in Paradise

November 29th, 2017 at 10:48 AM ^

FB can't stop you from profiting from your image on FB or anywhere else.  Just because they can also profit from your picture, doesn't mean that you can't profit yourself.

If Nike wanted to pay me to wear Nike shoes in FaceBook pictures or anywhere else on tv, internet, etc.., FB can not stop that.  The NCAA doesn't just stop players from selling images while in uniform, they also stop them from selling their image to ANYONE, ANYWHERE.

Do you get the difference now?

Blue in Paradise

November 29th, 2017 at 11:48 AM ^

But the overall point is the ownership of the image rights.  If Spielman owns the image rights, then this is not an issue.  If he agreed to turn over the rights to these images in exchange for equitable compensation, then OSU or whover can use them as they wish.

You are talking about the specific trees, I am trying to look at the forest.  You have a choice as to whether to post on FB or any other internet site.  Chris Spielman had to play in the NCAA in order to advance his career.

Not the same when you look at the issue in its entirety.

1VaBlue1

November 29th, 2017 at 12:02 PM ^

Now I get your point!  OSU already 'owns' the image they used.  Had they used something more recent (say, from the NFL), he'd be the clear winner.  Okay...  Yeah, this should be an interesting case - does the scholly agreement include perpetual ownership of any and all imagery from your college days?

Now I understand why the suit was expanded to include collegery across the lands...

NRK

November 29th, 2017 at 1:15 PM ^

The "right to play" argument I think you're advancing here was rejected by the 2nd Circuit in the Clarrett case when he tried to challenge the NFL eligibility rules:

 

Clarett, however, stresses that the eligibility rules are arbitrary and that requiring him to wait another football season has nothing to do with whether he is in fact qualified for professional play. But Clarett is in this respect no different from the typical worker who is confident that he or she has the skills to fill a job vacancy but does not possess the qualifications or meet the requisite criteria that have been set. In the context of this collective bargaining relationship, the NFL and its players union can agree that an employee will not be hired or considered for employment for nearly any reason whatsoever so long as they do not violate federal laws...."

 

Clarett v. Natl. Football League, 369 F.3d 124, 141 (2d Cir. 2004)

 

Outside the protections found in various labor & employment laws you don't get a "right" to a job.

pescadero

November 30th, 2017 at 7:57 AM ^

"You have a choice as to whether to post on FB or any other internet site.  Chris Spielman had to play in the NCAA in order to advance his career."

 

False.

 

Playing college football is a choice. One can advance their career by playing in the CFL or numerous semi-pro leagues around the USA/World without ever playing a college football game.

Blue in Paradise

November 29th, 2017 at 10:40 AM ^

from a legal standpoint.  I am a lawyer, but I have a lot of experience dealing with contractual legal issues through work.

Here is why:
 

1. An athlete cannot walk on to a team and then sell his image rights.  So the restriction is tied to playing for an NCAA team, not to the scholarship per se.  

Example: Rashan Gary, Nick Bosa, Jalen Hurts, etc... could simply give up their scholarship, try out as a walk on and then sign million dollar endorsement deals.  Either nobody has ever thought about that (unlikely) or it is not allowed.

Additionally: I do not know of any other type of scholarship that restricts image rights (ie. academic scholarships).

2. In the case of athletes at highly visible football programs (Michigan, OSU, Bama, Clemson, FSU, etc...), it is not an equitable contract.  Meaning that the athletes are giving up image rights worth MILLIONS of dollars for a scholarship that is worth maybe $30k -100k per year depending on the school.

3. You could say that the athlete is making a choice to play for their team, so who cares if the trade off is equitable.  My response would be that they are being induced to play college football as there is no other reasonable path to the NFL.

If there was a minor league of football, like baseball, then I think the NCAA would have a stronger footing in their argument as athletes woudl have two good choices in the advancement of their career.  But there is nothing reasonably available to prospective pro football players other than college football.

 

NRK

November 29th, 2017 at 1:01 PM ^

While this is all logical and practical, it's not necessarily correct from a legal perspective.

On Point #1 - Technically, and athlete could sell his/her likeness rights if the athlete has not traded them, waived them, etc. The issue is that it would make the player ineligible to play due to NCAA rules by doing so (O'Bannon ruling changes this a bit).  Prior to O'Bannon the NCAA required a waiver, but they scrapped it during the O'Bannon case. However, most schools still require players to sign waivers that waive likeness rights. See, e.g., Illinois' waiver or Missouri's waiver

On point #2 & #3 - This is really a question of whether or not the contract is enforceable. Those are all arguments as to why such a contract will be unconciousable, but the truth is these type of contracts exist all over the place and are regularly enforced. If you want a good example, think of an actor/actress in a movie - promos, posters, TV spots, etc. - all handled through similar types of waivers. Publicity rights are routinely, validly, contracted away.

Of course, there's way more to it than that, and maybe the schools' waivers go to far - at which points your arugments about the unconciousability of the contract take on more weight.  (I'll put aside some of the issues with the argument on #3 on proving a potential possibility for a future contract with an unaffiliated organization (the NFL)).

For now, however, this is still a big grey, and believe it or not a rapidly developing area of law.

Blue in Paradise

November 29th, 2017 at 1:10 PM ^

I would be surprised if the image rights issue still exists in 10 years.  They can probably limit sale of image rights when in uniform / school branding - but it is truly unconscionable that Rashan Gary can't get paid to do a commercial when literally any other non-athlete college student can do so without restriction.

NRK

November 29th, 2017 at 1:20 PM ^

I completely agree it's a system that is really unfair to the players, and I'm all in favor of making a change for the better.

I think a lot of people are there in terms of morally, ethically, fairness, etc., Unfortunately the law tends to the move a lot slower - but claims like this help push it forward.

I do suspect we'll see some major changes to this over the next decade.

yourpaltal

November 29th, 2017 at 10:08 AM ^

This bs idea that somehow the NCAA owns your likeness in perpituity is ridiculous.  The whole thing started with a Honda banner at ohio stadium that showed Spielman in his playing days.  He currently shills for a local Suburu dealer, so that is clearly a problem for him.  

DCGrad

November 29th, 2017 at 10:14 AM ^

Or any other kind of athlete unless pick-up basketball at the CCRB counts, but giving up ones likeness might be part of the scholarship requirements. The scholarship should (for purposes of defending this lawsuit) state that a player gives up his or her right to receive payment for likeness used by the university and its partners (Nike, Moe’s, EASports, etc.). I have no idea if that’s included or not.

That’s not to say I don’t think players should be able to profit off their likeness because I believe they should and I think it’s a way to pay players while skirting Title IX issues. But if there are going to be lawsuits like this going forward, I see no reason not to include a clause that covers the issue. Not sure what to do about walk-ons though. Maybe they just sign a different contract with the same language.

Chuck Norris

November 29th, 2017 at 10:19 AM ^

I know that it specifies that athletes give up the rights to their image while they are at school, and that the university owns those rights. I believe that the lawsuit is about schools using athletes' likenesses without permission after they graduated. For instance, murals in stadiums with old players and stuff, those players aren't getting any money from their likeness being used.

DCGrad

November 29th, 2017 at 10:33 AM ^

For things like pictures and murals I would think it’s difficult to show damages or economic harm, although likeness without permission is definitely actionable. For jerseys and shirts with names they should just follow the professional sports model. Like if the Howe family gets a percentage of all #9 sweaters sold. Numbers are difficult because they aren’t player specific. UM sells #16 jerseys, we all know it’s for Denard, but it could be any other Michigan player who wore 16 either before or after Denard.

war-dawg69

November 29th, 2017 at 11:49 AM ^

Speiman does not have any problem with his former team paying homage to him. His problem is with the ad for Honda especially because he is allready raking in money from subaru. He is not harming osu and any money gained is going right back into their athletic department.

So in reality he is after Honda to benefit osu. I highly doubt he could care less except the company that is paying him is another car company and I am sure they have a problem with it.

If he was after personal gain and was sticking it to osu I would like this lawsuit much more. When I found out he really wasn't, that was the point of who cares, so why am I commenting?. Back to Michigan football stuff. Oh ya FUCK osu.

Michigan Philosophy

November 29th, 2017 at 10:15 AM ^

but I do know enough to say that if they are expanding the class size it is a bad sign for the collegs. Usually the first thing lawyers will try to do is make the class as small as possible or better yet proove there is no class and make it a personal lawsuit. If the class is expanding I would take that as a good sign for Spielman's case.

NRK

November 29th, 2017 at 12:45 PM ^

To be clear, this is just a motion to expand the class by Plaintiff's (Speilman's) counsel, not any sort of ruling that it will be expanded or that the class is correct.

 

To clarfiy your statement: "Usually the first thing defense lawyers will try to do is make the class as small as possible..." (Maybe not the first thing, but just defining the difference between whose counsel is seeking to expand the class). Here we're talking about plaintiffs attorneys who want the class as big as possible, so this is not a surprising motion at all.

mGrowOld

November 29th, 2017 at 10:34 AM ^

When I was a senior at Cranbrook a lot of my friends were either going out of state or to private colleges and when I started looking at those schools my dad said "Donald, I will pay for four years of education at the University of Michigan.  If you want go anywhere else I will give you the money it would cost me to send you to U of M as an in-state student and you can take out loans, work two jobs, whatever you need to do to make up the rest."

I went to Michigan.

saveferris

November 29th, 2017 at 12:56 PM ^

My father made a similar deal with me.  He would cover me for any school in the state of Michigan.  If I decided to go out of state for college, I'd have to come up with the difference to what in-state tuition would be.

I chose the University of Michigan.  I chose well.

The Mad Hatter

November 29th, 2017 at 10:39 AM ^

I remember him on TV just completely despondent at the state of our program a few years ago.  He was as angry as any Michigan fan/alum that we weren't holding up our end of the rivalry.  He wanted us to be good again.

Not sure I can agree with you about the dad's influence in his college decision.  I pushed my daughter strongly to Michigan and discouraged MSU.  Although I didn't threaten to disown her.

xtramelanin

November 29th, 2017 at 10:43 AM ^

wasn't this something real recent, or did i miss it? 

hopefully she choose wisely, as mgrowold did. 

we put some parameters around first/oldest child's decision (she's a freshman), parameters that she knew ahead of time and totally agreed with.  michigan was an option for her, but she wanted a smaller school, faith-based, and wanted to play basketball there.  she was not good enough to play D-1 ball.