A lawyer representing Ed O'Bannon and other former college athletes in its lawsuit against the NCAA and Electronic Arts over their rights to use players' images without compensation said Thursday that the University of Louisville shouldn't be able to sell a Kevin Ware tribute shirt.
"If the university is benefiting in any way by commercially exploiting a student-athlete, it is a right of publicity violation," said Rob Carey, a partner of Hagens Berman Sobol and Shapiro and co-lead counsel on the case.
Representatives for the NCAA did not immediately return messages seeking comment. The page with the shirt on it on Louisville's website noted on Thursday afternoon that the item is "sold out." On Friday, Louisville sports information director Kenny Klein said that the school does not consider the shirt to violate NCAA rules.
On Wednesday, the school announced it was selling a shirt that was a takeoff of Adidas' postseason "Rise To The Occasion" shirts that players on its sponsored teams had been wearing during the tournament. These shirts, selling on Louisville's website for $24.99, replaced the "S" in Rise with the No. 5, the number of Kevin Ware.
The school admitted that the shirt was indeed meant to honor Ware and said it was not profiting off the shirt because it had waived the typical licensing royalty that the school collects. For its part, Adidas said in a statement that the shirt was created as a request to the team and the school.
"We are happy to support Louisville fans who wish to honor a player and rally around the team during the most important moments of their season," the statement said. "The shirt was intended as a respectful tribute and because of that, a portion of every sale will go to the university's scholarship fund."
"The fact that there is money going to the scholarship fund doesn't change things," Carey said. "If they didn't ask for Ware's permission, they can't sell the shirt, and if they did ask for his permission and he said 'yes,' that would be an NCAA violation and he would no longer be eligible."
In the lawsuit against the NCAA and EA, the student-athletes argue that rights associated with their likenesses have been used without their permission or compensation in video games and other materials that the NCAA says it owns. EA says it has a first amendment right to use what it has, and the NCAA argues, among other things, that it has never licensed a specific collegiate player while in school.
The NCAA also has maintained that college players do not deserve royalties from jersey sales because the player's name is not on it. It has been suggested that the number associated with a school could be for any athlete, past or present, but in this case the school and adidas acknowledged it was specifically doing this for Ware.
"Just because he's injured doesn't mean they gain the rights to publicize his image and likeness and use it to make money," Carey said. "And the unfortunate part of this is that he's in no position to say anything. But this is taking away his rights."