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Ed O’Bannon, a marketing director for an auto dealership in Las Vegas, may play a pivotal role in forever changing how the NCAA does business. O’Bannon was a star basketball player for UCLA in the mid-1990s, and now he’s at the forefront of a class action antitrust lawsuit against the NCAA for its use of his likeness (and those of other athletes) in NCAA-licensed products, particularly video games. Several related claims by other former NCAA athletes have been added to the class action, including the lawsuit filed by former Nebraska and Arizona State quarterback Sam Keller seeking compensation from the NCAA and EA Sports for using his image in a college football video game. Granted, being the target of litigation is not an unfamiliar position for the NCAA, and it has successfully defended several legal challenges. Following a recent court ruling, however, O’Bannon’s class action is suddenly getting more attention.
On February 8, a U.S. district court in San Francisco denied the NCAA’s motion to dismiss the lawsuit. The court’s ruling could have wide-ranging implications for the future of the NCAA. In the short term, it “leaves the NCAA’s licensing contracts open to discovery.” These contracts probably contain closely-guarded financial information that will shed some light on the value of NCAA licensing, estimated to be as much as $4 billion. Any discovery that the NCAA is reaping giant profits by licensing the images of current and former student-athletes would cut against the very values of amateurism it professes to uphold. More generally, the lawsuit targets all NCAA-licensed products; and, if successful, could drastically affect how the NCAA generates revenue, or even jeopardize its tax-exempt status.
One of the most prominent mediums in which athletes’ likenesses are allegedly used is in NCAA-licensed video games produced by EA Sports. They feature “virtual players” that copy many of the characteristics of their real-life counterparts, with one obvious exception: the athlete’s name. Even though the NCAA prevents the use of athletes’ names in its licensed video games, the virtual players are generally recognized by consumers as being modeled after the actual athletes themselves. It may be that EA Sports’ game development has been too good. To make the video games as realistic as possible, EA Sports has paid attention to detail, incorporating certain player-identifying features that go well beyond jersey numbers. Indeed, a virtual player will often match the athlete’s “height, weight, skin tone, hair color, home state [and] even . . . playing style.” While these features may not serve to identify every player in the video game (sorry, linemen), many athletes are readily associated with their virtual player, even in the absence of names.
The NCAA claims that a release signed by virtually all student-athletes gives it the rights to the promotional use of their images. And, despite the court’s adverse ruling, the NCAA may still ultimately prevail in the lawsuit. If not, however, the NCAA-licensed video games may become extinct. Because paying the current and former athletes represented in a video game is in direct conflict with the NCAA’s professed values, most notably the protection of amateurism, it’s hard to imagine such a course would be pursued. Any potential response is more likely to focus on the licensed products themselves. The NCAA and EA Sports could modify the video games in a way that qualifies them as a transformative use–presumably, less attention to detail (think Tecmo Bowl!). If such modifications are not viable, the alternative response may be the elimination of NCAA-licensed video games altogether. EA Sports has reportedly stopped developing college basketball games, but insists the newest version of its popular NCAA Football will still be released later this year.
Given the popularity of these video games, any recovery by the plaintiffs may come at the expense of many fans. As a former college athlete who was ecstatic to be depicted in a video game, I hope the opportunity for future athletes’ to enjoy that same experience is not endangered by a few individuals’ pursuit of compensation.
– Ethan Flatt
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