Dear Mr. Tebow,
Congratulations on winning the Heisman Trophy Saturday night, and you most certainly deserve it. I have been waiting for the appropriate time to discuss something with you (and similarly-situated high-profile collegiate athletes). Did you happen to catch the Associated Press release last friday, "Florida threatens legal action against sites selling Tebow items"? Your school has sent cease-and-desist orders to various web sites that are selling pictures, autographs, T-shirts, license plates and others items with your name on them, asserting that the web sites do not have your permission nor your school's permission to do so. It is understandable that your school would do that, because it does not make any money every time a non-licensed company sells something with your name or picture on it.
Third parties (including your school, the NCAA and EA Sports) are profiting immensely from the commercial use of your identity and celebrity status. But the NCAA and its member schools want you to think that you do not have a right of publicity in your identity. They accomplish this by telling you, and third parties using your name and/or likeness, that the NCAA bylaws prohibit you from profiting in this context. Buried in the current version of the 453-page NCAA Bylaws Manual contains the following pertinent provisions:
12.5.2.1 Advertisements and Promotions After Becoming a Student-Athlete. After becoming a student-athlete, an individual shall not be eligible for participation in intercollegiate athletics if the individual:Obviously, I understand the vital importance of maintaining your eligibility, and that your eligibility is determined by compliance with NCAA bylaws. These bylaw provisions make it clear that you may not accept payment for the use of your name or picture to advertise, recommend, promote or endorse the sale of commercial products and services, and that you and your school must try to prevent the use of your name or picture on commercial items. So the NCAA takes the position that it is o.k. for it and other licensed commerical entities to profit from jersey and video game sales because your name and picture are not being used in violation of these bylaws, and that, by them not using your name or picture, it also preserves the concept of "amateurism".
(a) Accepts any remuneration for or permits the use of his or her name or picture to advertise, recommend or promote directly the sale or use of a commercial product or service of any kind; or
(b) Receives remuneration for endorsing a commercial product or service through the individual’s use of such product or service.
12.5.2.2 Use of a Student-Athlete’s Name or Picture without Knowledge or Permission. If a student-athlete’s name or picture appears on commercial items (e.g., T-shirts, sweatshirts, serving trays, playing cards, posters) or is used to promote a commercial product sold by an individual or agency without the student-athlete’s knowledge or permission, the student-athlete (or theinstitution acting on behalf of the student-athlete) is required to take steps to stop such an activity in order to retain his or her eligibility for intercollegiate athletics.
However, the fact that your name and picture are not being used by these entities in violation of NCAA bylaws does not mean that your identity is not being used in violation of your right of publicity. When my son put together his Christmas wishlist this year, he wrote down, "a Tim Tebow jersey." He did not say, "a Florida Gator jersey with number 15 on it." He also knows that the computer image of a UF player with #15 that has your build, hair color, facial features and skill level in the video game I paid $50.00 for, is in fact YOU. I can assure you that there is plenty of legal precedent establishing that the identification element is clearly met for a right of publicity claim.
So who do you enforce your claim against? Suing the NCAA after you just won the Heisman is probably not a good PR move. Besides, the NCAA would probably take the position that it and its member schools own the rights to the logos, team names, colors and numbers, and that those are the only rights they have licensed for use by third parties. If you sue the jersey and video game manufacturers, they will assert that they are not using your identity, but no court would buy that argument. And, in the alternative, they will assert that the NCAA granted them a license to use your identity. There are two problems with this argument. For one, the NCAA did not grant them a license to use your identity, they licensed the logos, team names, colors and numbers. But more importantly, the NCAA cannot grant such a license because it does not own the rights to your identity, and thus does not have the right to assign those rights for use by any third party.
That takes us back to the eligibility issue. If you sue these commercial entities, it should not affect your eligibility. By filing a lawsuit, you would not be accepting payment for the use of your identity in violation of the bylaws; you would be protecting your property rights in your identity from theft. Once you ultimately obtain a judgment, the NCAA could take the position that receipt of a judgment constitutes acceptance of payment. But by the time you receive that judgment, you will have already exhausted your eligibility. Your lawsuit could be the impetus for the NCAA to begin negotiating with its licensees for an annual royalty to be held in trust for the benefit of collegiate athletes in the future, without destroying their eligibility.
Sincerely,
Rick Karcher
Sports Law Professor
UPDATE 12/10:
P.S. Timing is everything. Last Wednesday, the NCAA formed a presidential task force to examine limitations on the future use of your name, image and likeness by your school, conference and the NCAA to promote the competition and events in which your school participates. You are the ideal person to suggest that this task force be adequately represented by student-athletes to ensure that this task force considers your interests in addition to the NCAA's interest.
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