Last Thursday, EA Sports and College Licensing Company reached a preliminary settlement in the "Ed O’Bannon" class action lawsuit over the use of college athletes' names, images, and likenesses. The terms of the settlement have not been disclosed, but reports suggest that the figure could be upwards of $50 million. Not surprisingly, EA Sports announced that it will no longer produce its popular “NCAA Football” franchise beginning in 2014. If the settlement is approved, more than 100,000 former and current student-athletes may be eligible for varying amounts of compensation depending on the specifics of each class member’s claim, including the prevalence of the individual in the game.
It is well known that NCAA rules prohibit student-athletes from profiting off their name while in school and violators of this rule risk the loss of NCAA eligibility (for student-athletes) and potential sanctions (for member institutions), but now, some current student-athletes are in a position to receive a damages award stemming from the commercial use of their image, even though they are still enrolled in school. The NCAA has thus far declined to comment on whether current student-athletes will be entitled to collect damages without risking their eligibility until after the terms of the settlement are revealed. However, last year, Texas A&M quarterback Johnny Manziel likely set a precedent that will allow these current NCAA student-athletes to recover damages without jeopardizing their eligibility.
In the Fall of 2012 after a series of breakout performances, Manziel trademarked his nickname “Johnny Football.” Later that same season, a vendor began selling t-shirts with the phrase “Keep Calm and Johnny Football.” Manziel’s company, JMAN2 Enterprises LLC, filed a suit for damages as well as an injunction calling for the vendor to stop producing the t-shirts. The suit posed the question of whether a current NCAA player could be entitled to collect legal damages for the misappropriation of likeness and retain eligibility. The NCAA ruled that Manziel would be entitled to retain his eligibility and recover damages provided the trademark violation was not an intentional violation aimed at funneling money to the player. While the O'Bannon/EA Sports case is not a trademark case, the NCAA test established in the Manziel ruling should apply because both cases center on the misappropriation of a student athlete’s proprietary interest. Whereas Manziel can be awarded damages for the misappropriation of his intellectual property, current students would be entitled to compensation for the misappropriation of their names, images, and likeness. The NCAA has refused to comment on the ability of current student-athletes to receive settlement money, but the precedent of the Manziel ruling will make it difficult for the Association to deny student-athletes’ recovery. As a result, current NCAA student-athletes may be able to receive compensation from the O'Bannon/EA Sports settlement without risking their eligibility, even though they would not have otherwise been able to do so under NCAA Bylaws. 
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