One shining moment to a dark unknown future: how the evolution of the right of publicity hammers home the final nail in the NCAA's argument on amateurism in collegiate athletics.

• Author: Cox, Wayne M.

1. INTRODUCTION

   On the night of March 26, 1979, a truly momentous event captured the imagination of Americans and unexpectedly forced its way into millions of homes nationwide. (1) This television occasion failed to involve royalty, politicians, or even a critically-acclaimed scripted television program, but instead focused the spotlight onto a couple dozen college students. (2) Taking place in Salt Lake City, Utah, basketball teams representing Michigan State University and Indiana State University, featuring two players not yet known simply as "Magic" (3) and "Larry Legend," (4) squared off for the 1979 NCAA (5) Division I Men's Basketball Championship. (6) Broadcast live on NBC, the finale of the 1979 NCAA Men's Final Four saw a twenty percent increase in viewership over the previous year's championship game and managed to garner forty million pairs of eyes in eighteen million different homes even though the Spartans of Michigan State spent a majority of the second half leading by double-digits. (7) While NCAA Tournaments and Final Fours since 1979 have managed to attain higher viewership ratings due to a widespread increase in both population and television sets throughout the United States, (8) no NCAA basketball championship game has since come close to the television ratings and viewership share of the 1979 championship game. (9)

   Believe it or not, despite the fact that the phenomenon today known as "March Madness" (10) captivates the hearts and minds of millions of Americans each spring, the last two games of the Division I Men's Basketball Tournament were not referred to as the "Final Four" until attributed as such in the NCAA's 1975 Official Collegiate Basketball Guide. (11) To top it off, the first time that the phrase "Final Four" was even capitalized occurred in the 1978 NCAA media guide. (12) Jumpstarted by the 1979 Division I Men's Basketball Championship between Michigan State and Indiana State, the concept known as March Madness experienced an absolute explosion in popularity over the ensuing decades. (13)

   Following this groundbreaking television event featuring little-known collegiate athletes, the NCAA tournament field rapidly expanded from forty to forty-eight teams in 1980 and then again to sixty-four teams in 1985. (14)

   Together with the increase in both popularity and the amount of tournament-bound teams, the rights fees charged by the NCAA to allow networks to broadcast the event on television also jumped from a mere $5.2 million in 1979 to $96 million by 1985. (15) As more people glued their eyes to the television to watch a basketball tournament quickly growing into a month-long national event and more money poured into the NCAA's coffers, broadcast rights fees continued to skyrocket and the NCAA decided to move its Final Four from basketball arenas to football stadiums full-time after 1996 to allow for ticket sales to double and eventually triple. (16)

   Eventually, a growing number of student-athletes began to question the ethical implications of the NCAA's refusal to share an expanding windfall with the players. In July 2009, former UCLA Bruin Ed O'Bannon (17) shined a glaring spotlight on the NCAA's not-for-profit business model by filing suit against the NCAA and the Collegiate Licensing Company ("CLC") (18) in the Northern District of California. (19) O'Bannon alleged in his suit that the NCAA engaged in restraint-of-trade tactics which violated the Sherman Antitrust Act and deprived former and current student-athletes of their individual right of publicity. (20) O'Bannon felt spurred on to file this lawsuit after spending time at a friend's house in 2008 when his friend's son showed him an Electronic Arts-produced basketball video game that featured a UCLA player sharing the same former jersey number, handedness, shaved head, and complexion as that of O'Bannon during his UCLA career. (21) In March 2010, the Northern District of California consolidated O'Bannon's lawsuit with that of former University of Nebraska quarterback Sam Keller, (22) who originally levied suit against Electronic Arts ("EA") ("EA Sports") (23) for violating the individual right of publicity of each and every student-athlete to have appeared in an EA Sports video game licensed by the NCAA and the CLC. (24)

   Six years after the consolidation of the two suits, the issue of sharing NCAA revenue generated by the effort and likenesses of the NCAA's student-athletes with those same players continues to rage on in the public between staunch opponents on each side. This article will examine and analyze the development of the sports video game licensing craze, the rapid rise in popularity of and revenue earned by NCAA Division I men's basketball and football, the growing emergence of the intellectual property right known as the "right of publicity," and how the right of publicity might finally turn out to be the proverbial wooden stake to the heart of the NCAA's vampirical argument clinging to the history of amateurism and the student-athlete.

2. THE RISE OF SPORTS VIDEO GAMES AND THE ASSOCIATED LICENSING CRAZE

   1. The Emergence of Video Games: From a Distraction to a National Obsession

      In 1958, an American physicist named William Higinbotham, who helped develop the first nuclear bomb, (25) took his talents to an extremely different stratosphere while employed at Brookhaven National Laboratory. (26) In an effort to liven up the tour of the laboratory for visitors, Higinbotham took several weeks to create an analog computer connected to an oscilloscope (27) with two paddles attached. (28) Entitled Tennis for Two by its creator, the game allowed two human players to adjust their paddle dials so as to angle their respective virtual tennis rackets in order to knock the ball back over the center line displayed on the screen in front of the players. (29) Over time, Tennis for Two gained recognition both as the first sports video game and perhaps the first video game of all time. (30)

      Despite the fact that Tennis for Two laid the groundwork for the future of video games to come and became the original landmark for sports video games, it still failed to make an immediate impact on the public and even its creators. (31) While the 1960s saw a number of inventors attempting to electrify the commercial possibilities of the arcade and home console markets, no one truly managed to break through to widespread success until Atari's release of Pong in 1972. (32) Bearing similarities to forbearers such as Tennis for Two and Ralph Baer's Table Tennis, (33) and now known as "the first video game to be mass-produced and successful," the release of Pong sparked a worldwide video game revolution on its way to grossing $40 million in sales by the end of 1975 thanks to the game's easy-to-grasp features along with a deal with then-department store giant, Sears. (34) While Atari co-founder and Pong co-creator Nolan Bushnell (35) sold Atari for millions just four years after he founded the company, the video game market boom was only in its earliest stages. (36)

   2. The Sports Video Game Sector Develops an Insatiable Appetite for Licensing Material

      In 1983, a little-known publisher named Electronic Arts (37) changed the course of sports video games forever by delivering the computer game, One on One: Dr. J vs. Larry Bird ("One on One"), to the public. (38) A basketball video game featuring graphics and gameplay features well before its time, One on One represented the very first time in which a sports game licensed the likenesses of individual professional athletes. (39) The success of One on One inevitably boosted this licensing approach and saw everyone from Wayne Gretzky to Joe Montana and John Madden agree to plaster their names on video game covers in order to boost sales. (40)

      By finding a way to accurately replicate the likenesses of both Julius "Dr. J" Erving (41) and former 1979 NCAA March Madness star Larry "Legend" Bird along with each star's respective abilities and usual on-court movements with such limited technology, the creators of One on One hit an absolute home run with consumers. (42) On top of replicating Erving's and Bird's respective abilities and likenesses, One on One also stuck with gamers and continues to be held in high regard thanks to additional flourishes such as the ability to dunk the basketball so hard that the glass backboard shatters, revealing an irate janitor on the scene to clean up the mess. (43) Since technical limitations of early video games generally prevented the possibility of accurately portraying famous athletes, the combination of exceptional game development and marketplace affordability inherent in One on One single-handedly created an entirely new sports-centric segment of the video game market.

      Before long, American professional sports leagues and their respective players unions were willing to cut licenses with any game developer willing to meet their price since consumers quickly grew enthralled with playing simulated games as their favorite real-life athletes and franchises. (44) To further illustrate this sports game licensing phenomenon, 1989 saw the widespread home release of Tecmo Bowl and NFL, two football video games based on the National Football League ("NFL"). (45) The biggest difference between the two titles rests in the fact that Tecmo Bowl's production company, Tecmo, acquired the right to use the names and likenesses of real NFL players through its licensing agreement with the National Football League Players Association ("NFLPA"). (46) On the other hand, Atlus's NFL game featured the NFL shield logo on the cover of the game along with the real names, logos, jerseys, and helmets of the NFL's twenty-eight member franchises at the time. (47) Since the NFL and the NFLPA had licensed their respective rights to different games, this meant that Tecmo Bowl featured only city names instead of actual team names and logos while NFL allowed the user to only play as nameless and...