A California judge just tossed a class action suit which had been filed by PGA caddies, claiming that the bibs which they wore, which displayed product logos and endorsements mandated by the PGA tour, violated their NIL (Name, Image and Likeness) rights. (See other article reporting on this decision.)
This is an important case for college athletes. Though few of them know it, and most college sports administrators, including coaches and AD’s, would never admit it, college athletes are ‘billboards’ for what I call the ‘Big-Foots’ — the shoe and apparel manufacturers.
Back in the late 1970’s, when Nike agent Sonny Vaccaro began soliciting to promote Nike shoes, he began signing NCAA head coaches to contracts which obligated those coaches to insist that their players wear Nike shoes, but which also paid those coaches some whopping fees to get them to do so.
And in 1978, the NCAA, in a state of typical moral and intellectual paralysis, opined that the wearing of the Nike (and other) logos did not constitute ‘promotion’ which would violate the NCAA’s proscription against player promotional activities, or the NCAA proscription against the ‘exploitation’ of players.
The silliness of the NCAA’s position became quickly apparent, based upon the standard clause, since inserted into every Nike contract with every school, to provide shoes and apparel: those contracts explicitly stated, and still state, that the placement of the logo on the items which would be worn by the player was the “essence of the agreement.” Players have, it is obvious, functioned as ‘billboards’ for Nike and other apparel manufacturers since the late 1970’s.
But the display on a player’s body, of any kind of corporate logo, represents, in some respects, the utilization of that player’s own Name, Image and Likeness.
The Point?: The California court asked by the Caddies to provide them an avenue to challenge the use of the bibs they are required to wear refused to even entertain their suit — based upon a written contract which the caddies had signed, with the PGA, which required them to display them. And the court found that the caddies knew what they were getting into when they signed the contract.
NCAA players have all signed — whether they know it or not — a contract which similarly surrenders their NIL rights to the schools and conferences. Until August of 2014 — when a cranky Judge Wilken at the federal District Court trial of the O’Bannon antitrust suit made it clear that the she thought that the player’s apparent surrender of NIL rights in Paragraph IV of their ‘Student-Athlete Statement’ was invalid — the players had been required to sign away their rights to their own NIL rights. Even though that waiver has been excised from the Student-Athlete Statement, the NCAA consitution, and most conference rules, mandate that the player surrender those same rights. And that surrender is confirmed, contractually, by the NCAA’s demand that the player sign the NIL and SAS, which includes the player’s affirmation that he will abide by each and every element of the NCAA bylaws and constitution.
The dismissal of the PGA caddy’s case suggests that the NCAA player may be faced with a similar dismissal, based upon his signature on the SAS and NIL. That being said, the players retain an argument that the waiver required of them is neither knowing, or obvious, and should be invalidated.
The case points out the central importance of the player getting legal and other advice before signing his NIL and SAS, and the need for the player to consider whether any such agreement might be void or voidable, on a number of grounds.