it be "proven" that it is a likeness of either player?
specifically when the entire figurine is really just repurposed from another player/likeness completely and repainted.
no matter what you "name it" at the time...it's basically just a generic BYU football player wearing #45. it's not a likeness of harvey unga any more or less than it is of 20+ other BYU players who have ever worn that number.
so, how could harvey unga sue for mis-use of his likeness?
the ed o'bannon case was very specific...they WERE using his likeness...but futureAD? not so much.