Right of Publicity and Amateur Athletes

There is currently pending in a Northern California Federal Court a dispute between college athletes and Electronic Arts, the NCAA, and the Collegiate Licensing Company a right of publicity suit over the use of a college athlete's name and likeness in video games.  Collegiate athletes are not allowed to receive certain types of benefits for playing.  However, many states recognize the ability of a person to use their name and likeness, or more appropriately, to prohibit others from using their name and likeness.  The right of publicity stems from a person's right to privacy.

On the other side of the coin is the venerable First Amendment.  Oftentimes, the First Amendment is a valuable tool in combating against claims of theft of intellectual property (trademark, copyright, right of publicity).  To overcome the First Amendment defense, those seeking to assert their right to publicity will need to show that their right trumps the defendants' right to Free Speech.

It seems to me that the way forward for the athletes is to convince the Court that the use of the likenesses of the athletes is a significant aspect of defendants' ability to profit from their endeavors.  Of course, the schools and the NCAA already profit greatly from exploiting their athletes, but that is a blog for another time.