With college football season underway, so is Fort Lauderdale-based CBSSports.com’s college fantasy football game, which comes with a new option this year: the opportunity to draft players by name, rather than position.
Instead of picking Florida QB, you can actually draft Tim Tebow.
The move has already ruffled those looking to ensure college athletics maintain the amateur label and meant more players of the game.
The NCAA’s bylaws are aimed at preventing the commercial use of players’ likenesses –their names and images – to protect their athletic eligibility.
CBSSports.com has interpreted a court ruling earlier this year that baseball players' names and statistics are in the public domain to also apply to college athletes. The Eighth Circuit Court of Appeal ruled a fantasy company’s use of baseball players’ names and stats was a right of publicity, but was outweighed by the First Amendment. The U.S. Supreme Court refused to hear the case.
“As the leader in the fantasy sports business, we’re constantly looking for ways to distinguish our service from the competition,” CBSSports.com General Manager Jason Kint said in a statement, adding that he expected the change to increase the game's popularity.
And that’s troubling the NCAA and the Knight Commission on Intercollegiate Athletics. CBSSports.com doesn’t charge for the college game or award prizes, but does sell advertising to support the game. If players’ names make the game more popular, no doubt other fantasy providers will add names.
Will that lead to expansion of college athletes’ names in other merchandise? Will video game manufacturers add in players’ names and likenesses, rather than just Tebow's No. 15? Will jerseys be sold with players' names already on them?
The NCAA, which CBS is paying $6 billion for 11 years to broadcast the Final Four, says it must comply with the court ruling, but board members don’t want to see further erosion of the amateur bylaws.
“We’re monitoring it carefully,” NCAA President Myles Brand said in a conference call this month. “We do know there will be further activity in the fantasy league area. We think what has occurred has been a modest change from the current situation, but one of which we’re greatly concerned and we will look to see what our options are in the future, if there are further developments in the future.”
Rick Karcher, associate professor of law and director of the Center for Law and Sports at Florida Coastal School of Law in Jacksonville, thinks the NCAA needs to take a firmer approach.
“It’s hard to draw a logical line between the use of names in fantasy leagues and the use of names in video games ... It’s a slippery slope. They’re all commercial uses whether you’re talking about jerseys or trading cards," Karcher said.
“I don’t have a problem with the concept of amateurism. I’m not of the view they need to be compensated or paid, I understand amateurs and I get it, but this is different,” Karcher said. “When you’re talking about a third party outside of the NCAA and its member schools profiting off the athletes, to me it’s the NCAA’s job, if their mission is amateurism, it’s their job to prevent it as much as possible.”
Steve Peretz, an intellectual property lawyer in Miami, disagrees, saying the fantasy decision is isolated.
“The difference in the fantasy league is the player’s name is not being used to endorse a product. It’s being used as part of a gaming activity. It’s not being used to endorse Nike. It’s being used for this derivative purpose," Peretz said. “I don’t see this ruling as changing those sorts of merchandising rights. This decision is not allocating who has a proprietary right. It’s in the public domain … it would diminish proprietary rights, not expand it.”