EA, NCAA Lawsuit Could Be HugePosted May 12, 2009 4:00PM By Clay Travis (RSS feed)
On May 5, 2009 former Arizona State and Nebraska quarterback Sam Keller filed a class-action lawsuit alleging that EA Sports and the NCAA unlawfully used player images in their NCAA football and basketball video games. The lawsuit (read it here) received quite a bit of initial attention, but no one pointed out the most fascinating angle of the case, the NCAA is being accused of violating their own rules of amateurism, selling the rights to the players that they're supposed to protect.
Yep, the NCAA, baronial ruler of the collegiate landscape, investigator of impropriety from sea to shining sea, protector of amateur athletics, may be in need of investigation themselves. Oh, the delicious irony. What's at stake in Sam Keller's lawsuit? Only every game and every record featuring NCAA athletes in football and basketball over the past decade. Thankfully, this lawsuit falls right in my legal expertise; I'm a lawyer with a decent knowledge of NCAA regulations and a great knowledge of NCAA video games. As I read this lawsuit, I began to realize that it's much bigger than a video game, the lawsuit makes a really bold statement, it accuses the NCAA of violating their own rules of amateurism.
That's a huge story that no one is talking about.
Here's the crux of the matter in four sentences: The NCAA prohibits players from being paid anything for their participation in collegiate athletics. Yet if the NCAA appropriated player likenesses on these video games then they must pay something of value to the players whose images they appropriated. Only then they'll be paying players for their participation in collegiate athletics. Yep, the NCAA will be violating NCAA rules on amateurism.
Let's unpack that further.
First, take a step back and explain what these video games do for people who don't play them. The NCAA video games seek to replicate the college game in as vivid of a fashion as they possibly can. As anyone who has ever played the game can testify, the reason you buy them is so you can play with your team and the players on your team. The player names are not used, but top players are identified by height, weight, jersey number, visible appearance -- skin color for example -- and, most importantly, talent. Fast and shifty running backs are fast and shifty, strong-armed quarterbacks can complete laser passes, dominant wide receivers are impossible to cover with only one defensive back. You get the picture. So does every college football player when they gather in their dorm rooms and at team facilities to play against each other. In fact, the games are so accurate that EA even designs training programs for college athletes to use for perfecting their own offense and to prepare for opponents.
The only fig-leaf for the protection of player amateurism is that the NCAA video games don't use the actual player names. But, as you can see, we all know who those players are. It's why we buy the games. Last week I wrote about how ludicrous sellings college jerseys is. Namely, that the universities and their sponsors make so much money off the players by not putting their names on the back. The NCAA collects the money for licensing the rights to the teams and the players, but the players get nothing. So they remain amateurs.
This is a false and hypocritical system that coincidentally benefits the NCAA.
Lots of attention has been focused on Sam Keller for filing this lawsuit. People have ridiculed his college career, even opined that the court filing will be intercepted on the way to the courthouse. But what all that mockery has missed is that Keller is just the tip of the player iceberg, the named plaintiff in a potential class-action lawsuit. How many players is that? Well, if this class-action suit is certified, Keller is seeking to include every player on every EA game that has had their image, number, and likeness used. Most media accounts have solely focused on the football game, but what's at stake here is every major NCAA athlete for the past decade or so in football and basketball.
So what happens, if Keller et. al. are right and the NCAA is appropriating the player likenesses to make more money than they otherwise would? Then the NCAA has violated their own rules of amateurism. Think the NCAA and their lawyers aren't extremely nervous about this suit? Think again.
Their legal options are limited. They'll fight the class-action certification and attempt to get the lawsuit dismissed via summary judgment. It's my legal opinion that they'll fail in both arguments. Typically, if the class-action lawsuit is certified and the lawsuit isn't dismissed, parties enter into a protracted litigation that takes years. But here's the deal, do the NCAA and EA really want to go through discovery when it can potentially reveal how much they conspired to create this game? Generally when they fear what might come out through discovery, settlement becomes the goal.
Only, say the NCAA and EA decide to pay out $20 million (this number is hypothetical, any sum would suffice) to settle this lawsuit. There are at least 10,000 or so players (85 scholarships multiplied by 119 top division schools) on every NCAA football game, at least 4,000 on every NCAA basketball game. Figure that your average player is being reproduced on four different games over the course of his career. EA's NCAA Football series, for example, began in 1998. So you're talking about 11 years worth of players being eligible for the class-action settlement in football alone. (Basketball is more complicated because there were competing games from different companies. But if I'd filed this class-action, I'd amend my complaint to include Take-Two Interactive and other companies that have signed licensing deals with the NCAA for basketball games.)
But, as we've stated, the NCAA forbids the use of player images for commercial gain. So current players would have a settlement from the NCAA that they couldn't accept if they wanted to remain eligible under NCAA rules.
Even if the payments went to the players after they graduated, they'd be retroactively rewarded for their play. That, too, is still illegal, because they're being paid for something they did while playing the collegiate sport. What's the end result? If the NCAA follows their procedures, the entire NCAA record book for the past 11 years would have to be wiped clean because every player featured on the video games accepted improper benefits.
You want to go even further down the rabbit hole? How about the NCAA being forced to investigate the NCAA for violating NCAA rules? How delicious would college coaches find this? Fans? Everyone who has ever thought that the NCAA rules on amateurism didn't make a lick of sense?
So I don't think the NCAA and EA can settle and I don't think this case will get dismissed. Meaning gird up for an interesting ride on the class-action express. After all the outrage provoked by their policies over the years, wouldn't it be the ultimate dose of irony if being greedy over a video game upset the NCAA apple cart? If the NCAA itself became the most egregious violator of NCAA amateurism rules?
That's why this case matters. A ton. Even if no one is yet taking note.
