Since 1993, the NCAA has had a deal with EA Sports to allow EA to produce a college football video game, first called Bill Walsh College Football and then switched to NCAA College Football in 1997. This week, the NCAA cancelled its deal with EA because of several lawsuits filed by former and current NCAA athletes that are going to trial, showing us that the amazingly arrogant NCAA is feeling some heat and perhaps knows it’s in the wrong from a legal standpoint.
Former UCLA basketball player Ed O’Bannon filed the first lawsuit in 2009. In it, he alleges that the NCAA profited from using his likeness in video games and other marketing endeavors. O’Bannon played for UCLA in the mid-90s, and well after he was out of basketball and selling cars for a living, he was informed that his likeness was in the EA Sports March Madness basketball game, a cousin of NCAA College Football. Coincidentally, EA Sports discontinued the March Madness game in 2010. Sure, O’Bannon and every other college athlete signs a waiver that allows the NCAA to use his likeness – but that’s while he’s playing. O’Bannon was long gone and still in the game. Not only that, but he now has enlisted six current college football players for the suit, claiming the NCAA and EA Sports fixed prices and therefore violated anti-trust laws.
O’Bannon has included former college stars Bill Russell and Oscar Robertson, who also were featured in the game, to the lawsuit. The six current players were added as plaintiffs after a federal judge in Oakland earlier this month allowed attorneys to update their suit to fix legal technicalities, including adding at least one active player.
Apparently anticipating the worst, the NCAA ended its relationship with EA, saying in a statement that “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.” The NCAA will claim that it only sold its logo and names, and that it had nothing to do with EA using player likenesses in the game.
Not only are EA Sports and the NCAA defendants, but a judge has also ruled that any business that utilizes the likeness of a player can be included in the O’Bannon suit. You see a player’s likeness, or image, every time you watch a college game on TV. Yes, ESPN, FOX, CBS and ABC can be added to the lawsuit. You see players’ likenesses on the Big 10 Network, the Big XII Network and even for banners before the Missouri Valley conference tournament. Every conference can be added to the lawsuit. Any time you see a picture or an on-screen image of a college athlete, they haven’t been paid for it, and if someone did profit off of that image, they can be sued.
The sides are awaiting a ruling from the presiding judge in the case to determine whether or not the case can move forward as a class action, which could add thousands of plaintiffs to the case. Any player whose image was ever on TV while they were playing for an NCAA school would be able to join, and if thousands of players do, the impact of a victory for them would be enormous.
According to Andy Staples of Sports Illustrated, a victory for O’Bannon and his co-plaintiffs could spell disaster for the NCAA. He wrote “the NCAA could lose a jury trial, and the jurors could award the plaintiffs everything they want. If this held up on appeal – remember, damages in antitrust cases are tripled – it likely would bankrupt the NCAA and force schools to form a new governing body. It also would force schools to negotiate a better deal for athletes, who would now be legally entitled to a share of television revenue. This would result in more money for the players, less money for coaches and administrators and less spending on stadium additions and fancy weight rooms. It also likely would require the cutting of some non-revenue sports as departments adjust to decreased revenue. This wouldn’t be a sudden change. The appeals process would take years.”
I’ve seen enough of the NCAA’s greed, of its taking advantage of athletes over the years to line its pockets with cash. It’s ridiculous that members of the Fab 5 could see all of their jerseys for sale in a sporting goods store, but not see a dime from the profiteering off their likeness. Last year, Texas A&M didn’t even print No. 2 jerseys – Johnny Manziel’s number – until he burst into the nation’s consciousness in November. Originally, Adidas only printed No. 1 jerseys, which every school does, and No. 12, for the 12th man at A&M. When he got rolling, they made tons of T-shirts and jerseys, and sold them, with Manziel not seeing a penny. That’s just wrong. It’s so obvious, and it’s ridiculous that players can’t benefit from being so good for a school, and the school can clean up financially.
The bigger issue is that TV provides billions of dollars in revenue for college football, much more money than jerseys bring in – and once Manziel became a TV star and a ratings draw, he became a moneymaker for the networks that showed him.
I have to admit, I love the fact that the NCAA seems to be on the run, and I’m rooting for O’Bannon and his co-plaintiffs to bring them down.