Yesterday's Class Certification Hearing in O'Bannon

Steve Berkowitz of USA Today has an article this morning concerning yesterday's hearing before Judge Claudia Wilken in the O'Bannon lawsuit.  Here is an excerpt:

The [defendants'] lawyers also contended that various state laws and legal precedents say that athletes have no property rights for appearing in live, unscripted events – and thus have nothing that the NCAA or the schools are infringing upon when it comes to game telecasts and re-broadcasts.

That led Curtner to state that when it comes to television agreements, schools and conferences were simply "selling access" to their venues.

Wilken appeared to chuckle at the assertion, and after the hearing, Hausfeld attacked it, calling it a "significant admission or acknowledgement" by the NCAA.

"I don't know about any of the broadcasters, but I'm not sure that anyone in their right licensing mind would pay billions of dollars for an empty stadium or an empty basketball court," Hausfeld said. "You're paying for the players, you're paying for the quality of the teams that perform on those courts and in those stadiums. You want and many of the contracts require the conveyance of the name, image and likeness rights of the athletes. So I think the court understood there was a bit of foolishness in that representation." 

Because college athletes have never legally asserted their right to a portion of the live broadcast licensing revenue, the NCAA, conferences and universities decide on their own that they are entitled to keep 100% of the billions in annual revenues generated by simply selling to the networks access to their stadiums.

There are some who question how it is that college athletes could possibly have a legal claim or right to the broadcast licensing revenue.  Perhaps the better question is, what is it that gives the NCAA, conferences and universities the exclusive right to it?   The network is the "author" (and therefore owner) of the broadcast under copyright law.  The NCAA, conferences and universities receive from the networks billions of dollars and an assignment of the copyright in exchange for stadium access, and in the process they have shut the athletes out by not giving them a seat at the negotiating table with the networks.  This lawsuit can be viewed as requesting or demanding a seat at the table.  So what law or case precedent gives the schools the right to exclude them?  What law or case precedent gives the schools the exclusive right to broadcast licensing revenue?  Hint: it cannot be analogized to the professional sports leagues.