Former College Quarterback's Touchdown At The Third Circuit Renews Debate About Whether College Athletes Should Share In The Commercial Success Resulting From Their Athletic Achievements
College Football is a huge business. According to the Forbes list of College Football's Most Valuable Teams (link: http://www.forbes.com/sites/chrissmith/2012/12/19/college-footballs-most-valuable-teams-texas-longhorns-still-on-top/), the nation's most lucrative college football program, the Texas Longhorns, is worth a staggering $133 million. According to the referenced Forbes article published at the end of 2012, the Longhorns generated $104 million in revenue in 2011, the first time a college football team has ever cracked nine figures. Yet, unlike their professional counterparts, college athletes are prohibited by NCAA rules from individually profiting from their programs' successes, even in ancillary ways such as from merchandizing. College athletic programs benefit from all of the merchandise sales of their professional counterparts (some to an even greater degree than smaller market professional franchises), yet many college athletes cannot even afford to purchase a replica of their jerseys at the college bookstore. No matter what your position is on whether student athletes should be permitted to be compensated for certain aspects of their success like merchandizing, a recent decision from the United States Court of Appeals for the Third Circuit casts a portion of the debate under a new legal framework.
In Hart v. Electronic Arts, Inc., decided May 21, 2013, the Third Circuit Court of Appeals held that the use of an athlete's likeness in a NCAA Football video game violates the athlete's right of publicity. The factual underpinnings of the of Third Circuit's decision undoubtedly will have successful college athletes from top programs across the country scrambling for legal advice. Ryan Hart, a former Rutgers University quarterback, filed suit against Electronic Arts, Inc. ("EA"), a leading videogame franchise developer that has developed some of the most recognizable (and profitable) sports videogame franchises in the world, such as the annual Madden NFL game and countless others, for appropriating his likeness in EA's NCAA Football video game releases in 2004-2006. During those years, EA's NCAA Football video game included an avatar that resembled Hart. The computer animated figure also shared Hart's biographical statistics. Although users can alter certain characteristics of the animated figure, the Third Circuit noted that the NCAA Football video game's realistic features contribute to its commercial success.
The District Court...
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