Oscar Robertson is asked to affix his autograph to various items every day and he recently discovered a new one being pushed in front of him by fans – trading cards featuring him as a player at the University of Cincinnati. Some come with a swath of his “game jersey” attached. Others have him in his freshman number, 22.
This was not a product he recalled approving for his likeness to be used. He tried calling the trading card companies (Upper Deck, Donruss) for an explanation yet couldn’t get a response.
The answer was the NCAA had signed licensing deals with the companies without Robertson’s direct consent. The association maintains it has the right to control a player’s likeness in perpetuity.
In the case of the 72-year-old Big O, that means 51 years and counting. He left UC in 1960.
“The arrogance of the NCAA to say, ‘we have the right to do this,’ … is what troubles me the most,” Robertson told Yahoo! Sports on Wednesday. “The University of Cincinnati gets a fee each time my picture is used on a card. I don’t. When I played there, there was nothing like this ever agreed to.”
Robertson put his considerable reputation on the line Wednesday and joined a 2009 class action suit against the NCAA, first championed by former UCLA Bruin star Ed O’Bannon, as a name plaintiff.
The new complaint (750k PDF), filed in the United States District Court in San Francisco and obtained by Yahoo! Sports, argues that, “Mr. Robertson’s collegiate image continues to be licensed without his consent to this day … and sold for profit without approval by Mr. Robertson, and without any opportunity for him to participate in the licensing opportunity generated by the use and sale of his own collegiate image.”
Joining Robertson in the additional complaint is former Connecticut player Tate George, whose buzzer-beating shot over Clemson in the 1990 NCAA tournament has been resold in DVDs and featured in advertising campaigns for Vitamin Water, McDonald’s, Burger King, Buick, Chrysler, and Cadillac. It was recently used in an online advertising campaign to sell Egg McMuffins.
Also now on board is former Ohio State football player Ray Ellis, who starred in the 1980 Rose Bowl. A number of games he participated in are being sold on commemorative DVDs or rebroadcast on the Big Ten Network.
The O’Bannon suit, which is progressing through the courts, argued the NCAA “has illegally deprived former student-athletes” from “myriad revenue streams” including “DVDs, video games, memorabilia, photographs, television rebroadcasts and use in advertising.” You can now add trading cards to the list.
The lawsuit does not question the NCAA’s ability to market current players, but argues that the NCAA should not be able to maintain control over people forever.
The plaintiffs’ case is being argued by a slew of law firms, including the renowned Washington-based Hausfeld LLP, which specializes in difficult class action suits, having previously secured reparations for Holocaust survivors from Swiss banks.
“Oscar’s participation shows that even the greats of the game don't have any power to control their image,” Jon King, co-lead attorney, told Yahoo! Sports. ‘The NCAA has just assumed it.”
The NCAA has argued they maintain the rights to a players’ likeness forever in legal briefings. It believes it, its marketing arm – Collegiate Licensing Company – and partner companies Thought Equity Motion and Collegiate Images, LLC are compliant with the law. The organization did not immediately respond to an inquiry about the additional complaints, although it traditionally rejects comment until it has time to review legal documents.
Former UCLA Bruins star Kareem Abdul Jabbar recently filed suit against the NCAA in California state court based on the same trading cards featuring Robertson.
At stake is a share of the estimated $4 billion market for collegiate licensed merchandise, a business that has exploded over the last 15 years.
If the NCAA were to lose the case it would not only face a potential initial punitive ruling, it may be forced to begin sharing with former players. Athletic departments are already scrambling to meet soaring costs by cutting teams. Just 14 of the 120 athletic departments that play major college football turned a profit in 2009 according to the Department of Education.
Robertson casts a powerful presence on the side of the plaintiffs. He’s not only considered one of the greatest basketball players of all-time, he’s served as a positive and popular role model in the community for decades. Next month, the local Chamber of Commerce will honor him as one of its “Great Living Cincinnatians.”
He’s not new to groundbreaking lawsuits either. He was the president of the NBA Players’ Association in 1970 when he sued the league for player rights including free agency, the presence of a doctor at all games and various other benefits.
Robertson is troubled by the NCAA’s recent behavior in a number of rulings. In the case of the trading cards, he said he was particularly insulted he was never contacted by either the NCAA or the University of Cincinnati and believes it's part of a larger problem when it comes to the rights of players.
“I’m really shocked that the university is involved and never said, ‘you know, Oscar, they’re using your likeness,’” he said. “Instead they just made the deal without asking or even telling anyone.”
- University of Cincinnati