Antitrust, Intellectual Property, Sports, Video games

Current Real Players Join The Lawsuit Against NCAA, They’ve Always Been In The Game

There have been a couple of major developments this week in the ongoing lawsuit that pits Ed O’Bannon, and a group of other former college athletes, against the NCAA, Electronic Arts, and the Collegiate Licensing Company. If you are not familiar with O’Bannon v. NCAA, Sports Illustrated has a good primer. O’Bannon is suing the NCAA for antitrust violations stemming from the NCAA’s alleged licensing of players’ likenesses.

If you can’t understand that in sports terms, South Park has you covered in moral terms.

The NCAA has been operating with impunity, profiting on the backs of an unpaid labor force, for decades. I cannot think of a worse organization in the country right now, and you know I don’t say that idly: not the ABA, not Sallie Mae, not the Catholic Church. No organization seems more dedicated to directly profiteering off of young people without providing for their best interests as the NCAA.

But finally, the law might step in and stop this very powerful organization from taking complete advantage of their “student-athletes”….

If you’ve never played the EA college football game, let me explain how it worked this year for me.

  • I bought NCAA Football ’14 at my local Gamestop.
  • I started a “dynasty” with Michigan (GO BLUE!)
  • In the game, Michigan’s starting quarterback is named “QB #12″ He’s a 6’4”, 210 lbs, black dude with short black hair.
  • In real life, Michigan’s starting quarterback is named “Devin Gardner” He’s 6’4”, 210 lbs, black with short black hair, and wears #12.
  • The game also gave me the option to “download rosters” by entering in somebody else’s Playstation address. There’s no earthly reason I’d want to download my friend’s rosters. I went to Harvard, most of my friends think “college football” is like ultimate frisbee for jocks.
  • But there is a reason I’d want to go online, find a “friend” who had meticulously gone through and changed “QB #12″ to “Devin Gardner” and done so for every other anonymous player and download his roster. And that’s what I did.
  • Devin Gardner is now enjoying a Heisman-worthy campaign.

There are lots of people who got a cut of my purchase of NCAA Football ’14: Gamestop, EA, the NCAA, Collegiate Licensing Company (who handles the licensing for many individual universities), the Heisman people, the University of Michigan, and probably some people I’m forgetting. You know who didn’t get a cut? QB #12, whoever the hell he is.

So that’s why former players are suing. It started out as a few players suing the NCAA, but earlier this year Chief District Judge for the Northern District of California, Claudia Wilken, gave the players leave to seek class status against the NCAA and everyone profiting off of the likenesses of players — including athletic conferences and television networks.


That means there are now billions and billions of dollars at stake.

In response to all this, the NCAA this week cut ties with EA. Not that they are admitting guilt or anything. Here’s the NCAA statement about the decision, from Deadspin:

We are confident in our legal position regarding the use of our trademarks in video games. But given the current business climate and costs of litigation, we determined participating in this game is not in the best interests of the NCAA.

So the NCAA is getting out of a profitable business because it didn’t do anything wrong? It just looks bad?

No, you know what looks bad, selling this #2 Texas A&M jersey at the NCAA store for $64.95, when the Heisman trophy winner Johnny Manziel, who wears number 2 at Texas A&M, could literally get in trouble for receiving his own jersey as a gift!

In any event, six current players have now joined the former players in the O’Bannon lawsuit. Including current players increases the possible damages for the NCAA. Judge Wilken will rule on the class status of the players later this summer. From ESPN:

Beyond adding the six current players, the amended complaint filed by lawyers sharpened and consolidated some of the allegations they had made in previous filings. Among those is the claim that late NCAA president Myles Brand ignored internal concerns about violations of the player rights in the creation of video games by EA Sports.

“Numerous NCAA employees — including those that were technically in charge of approving EA’s video games — knew that the video games were depicting real (student-athletes), but were overruled by Brand …,” the complaint reads.

NCAA spokeswoman Stacey Osburn said the NCAA would reserve comment until it has had time to read the amended complaint filed Thursday.

If certified as a class-action, thousands of current and former athletes will enter the lawsuit unless they opt out. Such a ruling would be a significant legal victory for the players and place pressure on the NCAA to settle the lawsuit as a means to avoid potentially huge damages tied to television revenues, which account for more than 90 percent of the money at stake in the dispute. The plaintiffs now demand the NCAA find a way to give players a cut of the billions of dollars earned from live broadcasts and memorabilia sales, along with video games.

If the players get class status, it’s game over for the NCAA (pun very much intended). They won’t need to litigate the rest of this, the NCAA will settle. Remember, some of the large universities are already ready to give players a nominal cut of their massive profits. Even more would rather give the players something than risk everything. I’m sure a large well-funded school like Michigan would be willing to pay their players (Ohio State already does, zing). The people holding up the process are small schools who want to invest as little as possible in FOOOTBALL while still massively profiting from it, and some university presidents who have a romanticized view of “student athletics.” Kind of like Confederate sympathizers have a romanticized view of the antebellum South.

Trust me, the SEC, which has been positively progressive on issues of athletes and pay, is not going down so that schools in the MAC can continue to make money off of a free labor force.

I think the NCAA is going to lose. And if the NCAA can lose, then maybe every other organization that profiteers off of students can lose, someday.

6 current players join NCAA lawsuit [ESPN]

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