Sports

The Complexity Of EA Sports College Football Without Athlete Group Licensing In Place

EA Sports may have a problem with anything less than action by Congress.

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EA Sports will not be coming out with a new college football video game in 2021, but the company has promised that such a game is in the works. It will be released “at some point,” per EA Sports Vice President Daryl Holt and, as of now, the plan is to launch the game without any players’ names, images, or likenesses.

Why is EA Sports ready to bring back the college football franchise after a hiatus of more than eight years? There are a couple of explanations.

First, EA Sports was able to enter into an agreement with CLC, which is the licensing division for Learfield IMG College. It provides EA Sports with the ability to utilize the intellectual property of more than 100 teams. That was certainly a prerequisite to today’s announcement.

Second, EA Sports is reading the writing on the wall and is likely taking the approach that there will be an eradication to the NCAA’s current prohibition on college athletes commercially exploiting their names, images, and likenesses by the time that a game is available for ordering. EA Sports can take the approach that it has the ability to create and sell a game with players who do not resemble the real-life athletes at universities across the country but, in reality, it is well aware that it needs to create virtual athletes who have the same or similar attributes as their real-life counterparts.

Therein lies a legal dilemma for EA Sports. Create a game that includes virtual players who look and feel nothing like the real players on a team, and consumer interest will be lost. Launch a game with players who are nameless, but are as heavy and tall as their real-life equivalents, are of the same race, and wear the same jersey number, and it will cause a frenzy among consumers itching for a return to EA’s college football franchise, but also opens the door to exposure for misappropriation of athletes’ publicity rights.

That is why group licensing remains an important piece to making this a successful reintroduction of the college football video game for EA Sports. It is also why nothing less than action by Congress or the NCAA will be sufficient for EA Sports to acquire these important licenses. EA Sports would need to contract with individual players, starting with Florida athletes as of July 1, 2021, unless publicity rights are granted for college athletes across the nation. That is neither feasibly nor manageable.

But EA Sports may have a problem with anything less than action by Congress. The NCAA has previously taken the public position that it is not in favor of permitting group licenses of athletes’ names, images, and likenesses. If the NCAA does not change its stance, then EA Sports could also be lobbying Congress for a law that places no limitation on group licensing, allowing EA Sports to push forward with a game that EA Sports, consumers, and the college athletes will benefit from. It would be about time.

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Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at [email protected] and follow him on Twitter at @DarrenHeitner.

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