There was one moment last Wednesday during the morning session in the trial of O’Bannon v. NCAA in which my head popped up like a Dalmatian in the backseat of a car. James Heckman, a Nobel laureate economist who was testifying on behalf of the defendants, was asked by Judge Claudia Wilken, the remorselessly efficient federal jurist who is presiding over the trial, to clarify something he’d said. Heckman had just answered a question about the central issue of the case: whether NCAA athletes like the plaintiff, former UCLA All-American Ed O’Bannon, have signed away the rights to their names, images, and likenesses to the NCAA based on its purported code of amateurism, and whether, by enforcing that purported code — even after athletes’ eligibility has ended — the NCAA has been acting in restraint of trade and in violation of antitrust laws. Wilken was curious about one point.
“Are you saying,” she asked Heckman, skepticism edging every word like a razor, “that being paid for your name, image, and likeness is the same as being paid for the activity itself?”
I nearly sprained my neck. Jesus, I thought to myself, this thing may have been over for weeks.
If Wilken believes that payment for an athlete’s name, image, and likeness is something different from being paid simply for playing the game — that it constitutes something not in violation of the rules regarding amateurism, but rather something outside of them — then that’s the ballgame. Everybody can grab a beer and go home. If Wilken is entertaining serious doubts on that point, then the NCAA is going to be lucky to get out of Oakland with its (undoubtedly sponsor-logo-festooned) underthings.
Wilken is an interesting case. Originally from Minneapolis, she went to Stanford, and then to Boalt Hall at Cal for law school. She was appointed to the federal bench by President Clinton in 1993 after a career as a public defender in the federal court system. She is thought to be liberal, as is the case with most judges sitting in the Northern District in California. Her record bears that out, but she is not flamboyantly so. She runs her court briskly and by the book, without saying or doing anything that could remotely be called imperious. And while she seems extraordinarily well versed in the facts of the case before her, she doesn’t appear to know all that much generally about sports. At one point on Thursday, she seemed not to be entirely sure what a “conference” was.
This is very bad news for the NCAA because, with her outsider’s eye, Wilken is immune to the threadbare piety in which it wraps its heedless commercialism. All the usual buck-and-wing that works on elements of the kept college press is completely lost on her. In fact, she seems to be quite aware of — and, occasionally, quite amused by — the fundamental absurdity of much of the defense’s case. This was what was behind her question to Heckman. It was also behind an interesting colloquy the next day between Wilken and NCAA president Mark Emmert.
Emmert was being cross-examined by Bill Isaacson, an antitrust specialist working for the plaintiffs out of David Boies’s law firm. Emmert was trying to make the case that the NCAA’s “core value” of amateurism actually protects college athletes from commercial exploitation. Whereupon Isaacson displayed on the dozen or so video screens scattered throughout the courtroom example after example of college athletes being used in NCAA promotional material, as well as example after example of college athletes during postgame press conferences, sitting in front of huge banners thick with the names of the NCAA’s various “corporate sponsors.” Wilken found this display far more intriguing than was comfortable for Emmert, whose testimony eventually came down to nothing more than a paraphrase of the discussion of hazing from Animal House: “He can’t do that to our pledges. Only we can do that to our pledges!” Wilken looked very bemused by this argument.
More than anyone else in the courtroom, Judge Wilken seems to grasp not only the basic legal principles at issue here, but also the underlying moral and ethical debate. This is an antitrust case, to be sure. And it is an exploration of whether amateurism is a noble concept, or just monopolism in Adidas-embroidered sheep’s clothing. But beyond the legal concepts at war with each other is a deeper, but simpler, question. This is a debate over who owns not merely an athlete’s work, but also his face and his name. The litany of “names, images, and likenesses” is sufficient for legal purposes in this case, but there is more than that going on here. At the end, it is a question of personhood.
Personhood is at issue in so many courtrooms and in so many places these days. Corporate personhood was enshrined in our political system, probably for the foreseeable future, by the Supreme Court in its Citizens United and McCutcheon decisions. Anti-abortion advocates are pushing what are called “personhood amendments.” At law and in our politics, “Who (or what) is a person?” seems to be one of the most malleable questions of the day.
So here we are, then, in a trial about video games. As near as I can tell, the video games in question were created by taking game films from various NCAA football and basketball games and then transferring them technologically until actual players found themselves with NCAA-licensed avatars that live forever. It was seeing his avatar that prompted Ed O’Bannon to launch his lawsuit in the first place and, having done so, he opened up a number of interesting questions about who he is, both in real life and in virtual reality.
Is Ed O’Bannon’s avatar really Ed O’Bannon, or is it an Ed O’Bannon made by someone else so that a lot of someone elses could make a whole lot of money? Isn’t that a fundamental looting of one’s fundamental identity? Doesn’t the real Ed O’Bannon have a say in the use of his name, his image, and his likeness? After all, that’s him in that game. The avatar runs the court like he did. It shoots the way he did. It passes the ball the way he did. There doesn’t seem to be any moral basis for an argument that Ed O’Bannon doesn’t have the right to control — let alone profit from — all the Ed O’Bannons that have been created out of the work that the real Ed O’Bannon did as an athlete. How can an actual person find himself an indentured servant in virtual reality?
Make no mistake, that is what the NCAA did to Ed O’Bannon, and that is what the NCAA does, more or less, to all the athletes under its control. It markets their personhood for its own benefit. It sells that personhood to its own corporate sponsorship for its own financial benefit. If you are a college athlete, you must — willingly or unwillingly — help the NCAA and its member institutions keep faith with Coca-Cola. One of the ugly moral truths about all our sports is that athletes represent one of the categories of Americans who can be legally and publicly treated as commodities, and nowhere is that truth more obvious, and more ugly, than in college athletics, where the athletes are not only forbidden from profiting from their own commodification, but also required to help the institutions they represent to profit from it. Then they have to hear the people who profit most from the commodities who play ball for them tell a judge that they’re doing it only for the athlete’s own good. This trial is about the NCAA’s desire to maintain that arrangement forever. Unless you’re afflicted with a kind of moral myopia, this is no less than grotesque.
Ed O’Bannon is a person who played four years at UCLA, won a national championship, and was the 1995 Wooden Award winner as the college player of the year. He helped UCLA to enrich itself. He helped the NCAA to enrich itself. (Even Mark Emmert admitted repeatedly on the stand that college athletes help their institutions, and the NCAA, to finance their operations, as well as function as high-level marketing tools.) You can argue — I wouldn’t, but you can — that O’Bannon’s compensation for his work at UCLA was his athletic scholarship. But if you do, then you have to admit that, by the end of O’Bannon’s college career, all the books were in balance. Nobody can possibly have the moral, ethical, or legal right to take that work and create their own private Ed O’Bannons for their own profit forever. There is a piracy of personhood in that exercise that cries out for relief. Ed O’Bannon deserves to be free to profit from himself in the real world, and in any other world that technology allows him to visit. He is his own avatar.