At the professional league level there is a long history of disputes and court challenges over property rights in the live game broadcasts. However, the interest of the NCAA, conferences and universities in live game broadcasts from a property rights perspective has never been challenged in court. Who owns the copyright to the broadcast of the live game? What is the origin of the legal right of the NCAA, conferences and universities to the billions in revenue generated by their licensing of the right to broadcast the live games? Assuming the NCAA, conferences and universities do in fact have some sort of property right or other legal right to sell these rights to networks, should they be recognized as the exclusive rights holder? Do college players also have some sort of property right or other legal right to a portion of the licensing revenue based upon their substantial contribution to the broadcast of the game? Afterall, the players are the sine qua non of the broadcast because it obviously does not exist, and it would not generate billions in revenue, without their contribution and year-long preparation.
My article published this fall in Cardozo Law Review traces the historical development of broadcast rights in the professional sports leagues. In essence, the courts have held that professional clubs have a quasi-property interest in the right to license the broadcast rights to the networks. The network is the author of the broadcast and assigns to the league its ownership in the copyright to the broadcast pursuant to a provision in the broadcast licensing agreement. And college sport has followed on the coattails of the professional sports league model. Basically, the network pays the NCAA, conferences and universities billions of dollars to let their camera crew enter the stadium door and capture the game being played. Yet nobody has challenged this exclusive putative quasi-property right of the NCAA, conferences and universities.
There are legitimate reasons to recognize an exclusive right for the professional clubs that arguably do not apply to tax-exempt public universities. While difficult to explain in any detail in a blog post, a couple distinctions are worth mentioning briefly. For example, professional clubs are for-profit entities with individual owners who put substantial private investment at risk through their purchase and operation of a team. Also, professional players are employees of the clubs, which is legally significant in evaluating the property right because the Seventh Circuit in Baltimore Orioles v. MLBPA held that the players' claim to a portion of the licensing revenue was precluded on the basis of copyright law's "works for hire" doctrine and the players can negotiate with the clubs over the value of their individual contributions to the broadcast. College players, on the other hand, cannot be subject to the works for hire doctrine simply because, well, college sport has consistently maintained the position that the players are not employees or independent contractors who can be hired. Viewed within the construct of common law unjust enrichment which is premised on the idea of distributive justice, my article argues that universities obtain an unjust benefit at the players' expense by retaining exclusively for themselves the portion of the increasing rights fees that would normally and equitably be paid to the players for their substantial contribution to the value in the live game broadcast. My article also addresses whether copyright law preempts an unjust enrichment claim in this context and I explain why I do not believe that it would.
In the O'Bannon litigation, the class did not assert a claim to live broadcast licensing revenue in its complaint. Just last month, however, the class filed a motion seeking to revise the class definition to include live game broadcast licensing revenue. If the court ends up denying their request, I nevertheless expect to ultimately see this case coming soon to a theatre near you....