College Athletes Finally Sue Electronic Arts/NCAA for Misappropriation of their Likenesses

EA lawsuit.jpgLet me give the uninitiated a brief rundown of how the NCAA (National Collegiate Athletic Association) deals with student athletes. (If you already know this, feel free to skip ahead to the jump.) Universities make tons of money on college sports. Athletes receive a free college education. Universities make tons of money selling paraphernalia associated with popular teams and players. Athletes are not allowed to profit off of their skills while still in school. Universities = tons of money. Athletes = pretend to go to school. College sports programs = big business. Athletes = unpaid interns.
As Smilin’ Jack Ross would say: “There are the facts, and they are indisputable.”
Let me give the uninitiated a brief history of sports video games. (Again, the jump is right there.) People used to play video games using fake teams and fake players. Then professional sports leagues figured out that they could make a lot of money by licensing out their teams’ logos and jerseys. Then labor unions realized they could make a lot of money by licensing out the likenesses of their players. Then sports video games became cool. Then Michael Jordan decided he could make even more money for his specific likeness (because he was Michael Jordan and nobody else was). Then video game makers allowed people to create their own players, so everybody made their own version of Michael Jordan (mine … played for the Knicks). Now professional players get their video game money through their union and everybody is happy.
Everybody still with me? Okay, so you can see the obvious problem with college sports video games. Everybody wants real teams and real players, but the game publishers can’t use the likenesses of actual college players. That would be stealing! But since it’s perfectly legal for the NCAA to prevent kids from earning money for playing college sports, there’s not really anybody video game publishers can pay for the rights. Except the colleges and universities themselves. Who, again, make a metric ton of money off of college sports.
So, game publishers like Electronic Arts, essentially, cheat. If you pick up the copy of a college sports game, you’ll see all the players, with their accurate numbers, positions, player attributes, pretty much everything except the players’ actual names. Luckily, you can change the names of players, and every year hundreds of users sit there and change all of the names of all the players to their real life counterparts. Then people like me pay for the “updated rosters” (back in the day) or simply download them for free.
And everybody is happy.
Except, of course, the college athletes. Especially the college athletes that have only a limited chance of going pro but are very popular college athletes and want to get a little more than a diploma out of it.
Okay, enough set up, let’s get into what Nebraska QB #9 (Sam Keller) and others are doing about it.

Sam Keller lawsuit.jpgNebraska is a big time college football program (at least, it used to be). Their players are local heroes and often become national stars while still in college. Sam Keller is a former Nebraska Quarterback. But he doesn’t have National Football League talent. So, he’s looking for a little back pay. Bloomberg reports:

Electronic Arts Inc. and the National Collegiate Athletic Association were sued by a former college football player who claims athletes’ images are used in video games without their permission and in violation of NCAA rules.
Electronic Arts, the second-largest video-game publisher, circumvents the rules by allowing customers to upload player names directly into games and creating images that closely resemble student athletes to increase sales and NCCA royalties, according to the complaint filed by Sam Keller, a former quarterback for Arizona State University.
The practice is sanctioned by the NCAA and a licensing company for the association, Keller said in his complaint filed yesterday in federal court in Oakland, California. Keller seeks to represent all NCCA football and basketball players featured in Electronic Arts’ NCAA video games.
“Electronic Arts is not permitted to use player names and likeness,” Keller said. Yet the company “with the knowledge, participation and approval of the NCAA and Collegiate Licensing Co. extensively utilizes actual player names and likeness.”

Meanwhile, the NCAA counters with:

The NCAA denied that athletes’ images were used in the games.
“Our agreement with EA Sports clearly prohibits the use of names and pictures of current student-athletes in their electronic games,” said Stacey Osburn, a spokeswoman for Indianapolis, Indiana-based NCAA. “We are confident that no such use has occurred and that we will ultimately be dismissed from this lawsuit.”

Look, if Napster can go down, so can the NCAA and EA.
Of course, it is not entirely fair to Electronic Arts is it? EA is willing to pay whomever they are supposed to pay for the rights to college football players. The problem is with the NCAA’s ridiculous prohibition against student athletes profiting off of themselves. Keller puts the situation plainly:

“With rare exception, virtually every real-life Division I football or basketball player in the NCAA has a corresponding player in Electronic Arts’ games with the same jersey number, and virtually identical height, weight, build and home state,” the lawsuit said. “In addition Electronic Arts often matches the player’s, skin tone, hair color, and often even a player’s hair style.”

When I have Michigan sack the little weasel Ohio State QB eight times in the first half, I’m not simply taking out my frustrations on Ohio State, I’m specifically satisfying my bloodlust for Tyrell Pryor. Everybody knows this. Why can’t Toilet Paper Pryor make a little money off the exchange?
You can read the full complaint here.
The NCAA should be careful. Treating college athletes as second class citizens is not a constitutional right. If Electronic Arts, and Microsoft, and even ESPN ever get on the side of the players, there aren’t going to be a lot of courts eager to uphold an unfair restraint on trade.
Ex-NCAA Quarterback Sues Electronic Arts Over Games [Bloomberg]
Sam Keller Takes On ‘The Man’ [Nebraska State Paper]
Keller v. EA/NCAA.pdf

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