Guest Post - Rex Shield
Since the U.S. Court of Appeals for the Ninth Circuit handed down their decision in O’Bannon v. NCAA, the discussions surrounding college athletes’ name, image, and likeness have come to the forefront, and rightfully so. As such, a former University of Central Florida football player, Jah Reid (not to be confused with Jah Rule, of course) sued the university’s athletic department — formally referred to as the UCF Athletics Association (“UCFAA”). His attorney filed a complaint with the Orange County (FL) Circuit Court on May 12. Additionally, Reid named Rise and Conquer LLC (“Rise and Conquer”) as a defendant. Scott Frost, UCF’s Head Football Coach, serves as Rise and Conquer’s de-facto CEO, according to online records.
For some quick, yet important background details on Reid as a football player, the Baltimore Ravens selected him in the third round of the 2011 NFL Draft. Days after being released by the Ravens in 2015, Reid signed with the Kansas City Chiefs and received a three-year extension later that season, which is set to expire after the 2018 season. Thus, Reid has accumulated over $7 million in total cash earnings over six seasons. Reid’s total cash earnings are pertinent to this discussion because his original complaint sought $200,000 in royalties and $600,000 in punitive damages.
Nevertheless, Reid and his attorney argued that UCFAA and Rise and Conquer violated Florida Statute § 540.08, which directly implicates one’s name, image, and likeness. Specifically, under Florida law, it is illegal to “publish … or otherwise publicly use for any commercial or advertising purpose the name, portrait, photograph, or other likeness … without the express written or oral consent.” Clearly, UCF used an image of Reid for advertising purposes in its recruiting brochure, which is seen below. (Image of recruiting brochure = attached to my original email)
However, in their Motion to Dismiss filed on June 9, the defendants argued that Reid lacked standing related to his claim. Plancher v. UCF Athletics Ass’n Inc., 175 So.3d 724 (Fla 2015) held that UCFAA was afforded limited sovereign immunity under § 768.28. The statute also outlines that the at-issue State Agency — here, UCFAA — and the Department of Financial Services must be put on written notice of the plaintiff’s claim, to which there shall not be any suits filed until the six-month investigation (180 days to be specific) ends. The earliest the investigation could have started was May 18, which was when UCFAA was officially notified of the statutory violation. Therefore, 180 days has not elapsed and, as the defendants pleaded, Reid lacks standing.
The defendants further argued that Reid’s claim for punitive damages should not go forward as is because Reid did not follow the requisite procedural requirements. That is, as a prerequisite to filing a claim under § 540.08, the plaintiff must first show that there is evidence of a reasonable basis for recovery of punitive damages. This principle is required by § 768.72. Thus, because Reid has yet to provide a reasonable basis for recovery, the defendants pleaded that “any claim for punitive damages should be stricken.”
An image from the UCF Recruiting Brochure at issue.
In regards to how the public may perceive the lawsuit, did Reid put himself in a no-win situation? I do not believe there is a straightforward answer to such question. Reid was – and still probably is – upset that UCFAA simply did not ask for permission to use his name, image, and likeness, which was blatantly used as a recruiting tactic. And I, along with several others most likely, would be upset, too, if my former institution did not even have the audacity to ask for my consent, let alone notify me that my name, image, and likeness was going to be used in such a way. Not to mention, it is not like Reid played one or two seasons in the NFL; he is going on his seventh year as a professional football player, meaning that he has built up quite a bit of good will and brand equity.
To the contrary, the public may perceive that Reid has an axe to grind with UCF and/or that this matter should have been dealt with behind closed doors. However, Reid’s attorney, Mark Bloom, refuted those sentiments. “This isn’t a personal attack against the university. This is strictly him believing in regards to the kids — that it’s wrong and that wasn’t the right thing to do,” Bloom told the Orlando Sentinel.
It is important to note that this situation is not uncommon in college athletics. Put another way, athletic departments use ex-players’ names, images, and likenesses rather frequently in a wide range of promotional materials and other various endeavors. However, former student-athletes may be finally recognizing this and growing tired of being exploited by their former institutions. In fact, on Friday, July 14, several media outlets reported that former Ohio State Buckeyes player Chris Spielman filed a class-action lawsuit against the university, among other named defendants and co-conspirators like IMG College, Honda, and Nike.
According to the complaint, which you may find here courtesy of Eleven Warriors, Spielman et al argued that the defendants and their co-conspirators, among other counts: (1) unreasonably restrained trade, a violation of § 1 of the Sherman Act; (2) participated in a group boycott and refused to deal with the former athletes, another violation of the Sherman Act; (3) violated the Lanham Act; (4) engaged in deceptive trade practices, as defined under Ohio law (R.C. 4165, et seq.); and (5) violated the former student-athletes’ rights of publicity, as defined under Ohio law (R.C. 2741, et seq.).
Altogether, it does not seem right or fair that the student-athletes cannot profit off of their name, image, and likeness at all during their college years, given their respective athletic departments can and do make money from the student-athletes’ names, images, and likenesses. Of course this is evident both during the student-athletes playing careers and after they leave campus. At some point, and hopefully sooner rather than later, the hypocrisy must go to the wayside.