OTish: Spielman class action suit may be expanded.
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
November 29th, 2017 at 9:55 AM ^
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.
November 29th, 2017 at 10:21 AM ^
Every single person that posts a photo to Facebook.
That picture now belongs to them.
November 29th, 2017 at 10:25 AM ^
You may have given up the right to a particular picture - but that is not the definition of image rights.
FB can't control what you do in terms of your use of image.
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.
November 29th, 2017 at 10:38 AM ^
But it has nothing to do with NCAA players not being able to use their own image rights.
November 29th, 2017 at 10:42 AM ^
is the NCAA restricting former players from using their own images for profit?
I guess I should read the case complaint before running my mouth.
November 29th, 2017 at 10:45 AM ^
Speilman filed the lawsuit against OSU because they used his picture in a program poster without his consent. And they refused to remove it when he asked them to do so, or pay up.
They used it just last year, or a couple of years ago - long after he left the school and retired from the NFL.
November 29th, 2017 at 11:11 AM ^
November 29th, 2017 at 11:13 AM ^
I believe this is correct. In any case, he believes that neither OSU, nor the NCAA, should be able to use his image without permission because he is no longer on scholarship. I agree with him unconditionally.
November 29th, 2017 at 11:19 AM ^
I agree also, but he went to the wrong university and his dad is fuckin weirdo, like most osu fans. That I believe unconditionally.
November 30th, 2017 at 7:54 AM ^
AFAIK - they were using a picture of him while he was an OSU player.
He has no right to limit their use of that picture, and he is going to lose.
Just like pictures you use on Facebook can be used by Facebook for advertising, even years after you quit the site.
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?
November 29th, 2017 at 11:11 AM ^
This is not the basis of his lawsuit, though. He sued because they used his image without his permission - long after he had left school (expired eligibility) and retired from the NFL. His contention is that OSU (or the NCAA at large) no longer has any permission to use his image.
I agree with him...
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.
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...
November 29th, 2017 at 12:18 PM ^
It is the right to play for an NCAA sanctioned team. Otherwise Rashan Gary could give back his scholly and play as a walk on - then he could start signing endorsement deals.
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.
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.
November 29th, 2017 at 10:22 AM ^
Any group that has signed them away through a contract or other legal document?
I've not read any athletic scholarship paperwork because I paid for my education and am now paying through the nose for my two kids, so I don't know if it includes perpetual use of image, but if it does that would explain it to me.
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.
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.
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.
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.
November 29th, 2017 at 11:56 AM ^
November 30th, 2017 at 6:59 AM ^
All photos/videos shot by military photographers are public domain.
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.
November 29th, 2017 at 11:25 AM ^
I'm willing to bet the Honda dealer thought it was cute - tweaking the Subaru dealer...until the lawsuit was filed.
November 29th, 2017 at 10:14 AM ^
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.
November 29th, 2017 at 10:33 AM ^
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.
November 29th, 2017 at 11:05 AM ^
It is the right to play for an NCAA sanctioned sports team.
Otherwise, Rashan Gary could give up his scholarship with Michigan (I am pretty sure he would make the team as a walk on) and then go sign a $5 million contrace with Under Armour.
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.
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.
November 29th, 2017 at 10:20 AM ^
Whats in the contract? I.E. What is the player/person signing when he puts his/her name on the scholarship papers...
November 29th, 2017 at 11:13 AM ^
It is the right to play, otherwise the top players would become walk ons and then sell their rights for millions.
November 29th, 2017 at 10:23 AM ^
Spielman had gone to Michigan. I think he's my favorite buckeye.
November 29th, 2017 at 10:27 AM ^
November 29th, 2017 at 10:31 AM ^
Sometimes parents know best. See Malik McDowell.
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.
November 29th, 2017 at 10:46 AM ^
is 2x higher than it is at Michigan. Your poor dad was probably broke by the time you graduated HS.
November 29th, 2017 at 10:49 AM ^
Tell me about it. When we lived in Ann Arbor, my wife was really pulling for Greenhills (holy shit, elementary school was going to cost more than college). I went to CC back in the day, and tuition was under 5k per year at the time. No longer...
November 29th, 2017 at 11:05 AM ^
According to the recent donantion communications, it is $12,000+ now.
November 29th, 2017 at 10:49 AM ^
Other than calling me Donald, my father gave that exact speech to me and my siblings when it was their time for college. I also ended up in Ann Arbor somehow.
November 29th, 2017 at 11:06 AM ^
My daughter went to Michigan. My son got a scholarship to attend ASU, so the full cost is less than U-M.
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.
November 29th, 2017 at 10:36 AM ^
I don't think that you mean "influences". It is a parent's job to coach, advise, and help a son or daughter discern an important decision like this (which is what I would consider influence).
If you mean "dictates" then I agree completely.
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.
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.