Court Hearing Tomorrow in Suit Against NCAA and EA Sports

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Posted February 14th, 2011 at 1:00 pm

A critical hearing takes place tomorrow in the case of Sam Keller vs. the NCAA, Collegiate Licensing Company, and EA Sports. The lawsuit, originally filed in 2009, has reached the Ninth U.S. CircuitĀ Court of Appeals after the argument to dismiss made by EA Sports regarding free speech protection as creative works of art was rejected last February. That First Amendment challenge has been watched closely and supported by Hollywood as it could affect their entertainment-based operations if challenged in the future.

The two most prominent and potentially damaging lawsuits that were filed separately, those being from Sam Keller and Ed O’Bannon, were combined into one large class action suit against the NCAA and its partners. Keller’s side has been arguing for the right to be compensated for having their likeness used while in school, while O’Bannon’s fight has been about paying for likenesses used after the student-athlete has left school. Several other former collegiate athletes have joined the class action including most recently Oscar Robertson.

The final result of the lawsuits will have a huge impact on how video games (amongst many other avenues such as jerseys, memorabilia, broadcast contracts and DVDs) can operate. Should the former athletes win it would lead to drastic changes for the video game landscape. College sports games would become completely generic in rosters and ratings and even the ability to use “roster sharing” would potentially have to be removed. The other option would be with the NCAA actually compensating players and in turn a company like EA Sports paying for full rights to use complete player likenesses even down to real names.

The difficulty in that stems from the costs involved and how the money would be split amongst players. High profile individuals would certainly have more claim to funds than those who barely make the team and never see the field. However that would get extremely messy to determine based on individual exposure, team exposure, and on-field performance. It could end up being a big pot that is split evenly but then there would probably be more lawsuits to come out of that. Regardless it is hard to imagine a company paying a huge sum for player likenesses since that would involve approximately 15,000 individuals each year getting a cut of what would need to be a large amount to be sufficient. The profit margin on college games are so slim to begin with.

If the lawsuit goes in the NCAA’s favor it would be status quo for the time being. Rosters would continue to be partially representative of the real-life players without crossing the boundaries that have been in place in the past. EA Sports has been trying for some time to obtain the rights to use player names in the game and had gained ground on a potential deal with the NCAA but the lawsuits pushed things off track. That discussion could be re-entered if the opportunity arises.

College basketball games have always been weak sellers and no company is going to risk jumping in right now to create a new game with the lawsuits looming. College football seems likely to survive regardless of the final decision as the sales are more significant however it will have a big influence on the direction it goes. Certainly, even as the exclusive license expires after this year, EA is really the only company in a position to make the ongoing investment in an NCAA Football series. Whether they find it fiscally responsible to do so is another question.

Whatever the final ruling this will surely not be the final stop for the lawsuit. It is believed that it will eventually end up in the Supreme Court. That means it could be a few more years before the final ramifications, either way, are felt.

  • Possen

    I so hope they throw this lawsuit out. Even though it would keep going through appeals I dont want to have to worry about college games dying out totally.

  • Coolcam28

    What a jackass….if i was put into a video game, i would be thankful not sue-happy.

    • Anonymous

      That’s the thing none of these clowns are in a video game. Just the jersey # they wore. Its a bullshit suit that should have been thrown out a long time ago. Maybe we should sue EA for using our “likeness” as fans. Any season ticket holder to a college team could then argue that they are being used when EA renders the fans in the stadium.
      That is how rediculous this all is.

      • http://pastapadre.com/ pastapadre

        Remember this already happened. That Browns fan “Big Dawg” sued, the case was dismissed.

      • Anonymous

        None of them are in a video game? Really? It’s just a coincidence that #7 from Florida is a stud runner with the exact same stats/height/weight as Tim Tebow?

        Either you’re lying or you’re an idiot.

        • guest

          Thank you, finally a well thought out comment. Of course these players exact likenesses are used. I always thought it was cheap that EA could get away with making exact player models/stats and everything and it be okay just because they took names out of the game.

        • Guest

          Who cares though? If you were a college football player like Tebow who was on his way to the NFL to make millions, you’re telling me that you would be worried about a few dollars from a video game??? No, it’s the guys that can’t make it in the sport, like Keller, who don’t have a backup plan after football who are suing the company for money. I can tell you from a personal standpoint that if I was a 3rd string position player, and I know Keller wasn’t 3rd string by the way, and was represented realistically with no name, I would think that is pretty cool and have no problem with that. That’s just my opinion. I don’t get what the big deal is or why Keller is sueing, other than to make money that he couldn’t from actually playing the sport.

          • Skihawks

            It was actually a lawyer who initiated the suit and Keller was added on as the poster boy. Also, to say that a guy like Keller who doesn’t have a backup plan is a pretty idiotic statement. There are thousands of college players who don’t go pro who have degrees and a job.

            Put yourself in their shoes. They have an opportunity to possibly get a fat paycheck because a company is making millions off of their likenesses. Again, likeness doesn’t have to be names or just a number. It can be their physical attributes, hometown, etc.

          • Dat boi

            they don’t have the exact attributes and most of the players don’t have accurate hometowns and accurate equipment so i don’t know whats the fuss about

          • Guest

            You’re right. Keller’s plan is to tend bar the rest of his life (unless he wins a boatload of cash in a lawsuit).

          • Gamecocks

            Actually, a lawyer can’t initiate a suit w/o having a client who has standing to bring the suit. The lawyer may have filed the suit, but he had to have Keller’s permission to do so.

            And I agree that Keller is a bum who didn’t make the NFL and is trying to cash in on his faded fame. It’s pretty pathetic, and in the end, he probably won’t end up with that much money now that this is a class action suit. He’ll get more being the class representative, but it wont be the fat payday he thinks it will. He’ll still end up selling insurance or used cars for some Nebraska booster.

      • Anonymous

        None of them are in a video game? Really? It’s just a coincidence that #7 from Florida is a stud runner with the exact same stats/height/weight as Tim Tebow?

        Either you’re lying or you’re an idiot.

  • Guest

    WHAT A DOUCHE!

    • Mykal94

      That happens to people when their life doesn’t turn out the way they want. Sam Keller doesn’t make the cut as an NFL player, so sue. That is the world we live in today.

      How much money to you think Sam Keller directly made EA by having his “likeness” in the game? I’d say about 47 cents.

      • Anonymous

        You’re just showing your ignorance.

        This is a class action law suit. It is by Sam Keller “and all persons similarly situated.” In other words, he’s suing on behalf of every NCAA athlete whose likeness has been used.

        What EA is currently contending is that, even if Keller and his attorneys can prove everything they say they can prove, it won’t matter because EA would still be right as a matter of law. If EA “loses” right now, the case itself can move forward (with Keller trying to get the class certified, some attempt to calculate damages, and likely a settlement paired with an injunction requiring EA to obtain permission from players before using their likenesses.)

        Please, if you’re going to talk about “the world we live in today,” at least make an effort to understand what that world is.

        • Mykal94

          If those people wanted and cared enough to sue, they would. The only reason Sam Keller is suing on behalf of every NCAA athlete is because it strengthens his case exponentially. Like I said before nobody cares about Sam Keller, and I’m sure his lawyers told him that.

          And every time I’ve said Sam Keller, it really meant every person/athlete involved.

      • Anonymous

        You’re just showing your ignorance.

        This is a class action law suit. It is by Sam Keller “and all persons similarly situated.” In other words, he’s suing on behalf of every NCAA athlete whose likeness has been used.

        What EA is currently contending is that, even if Keller and his attorneys can prove everything they say they can prove, it won’t matter because EA would still be right as a matter of law. If EA “loses” right now, the case itself can move forward (with Keller trying to get the class certified, some attempt to calculate damages, and likely a settlement paired with an injunction requiring EA to obtain permission from players before using their likenesses.)

        Please, if you’re going to talk about “the world we live in today,” at least make an effort to understand what that world is.

  • http://pastapadre.com/ pastapadre

    To be fair, Keller is just the face of the lawsuit. If he had not put his name on the suit it would have been some other former player.

  • TheR2KGlitch

    Sam Keller is a bitch. He didn’t make it in the pros so he’s looking for another way to make a buck. Get a job, douche-bag.

    • R_d55

      Let ma put your likeness in a game…profit from it and not pay you a dime. Would that be ok?

      • Guest

        Should I be able to cash a check from EA Sports if I’m one of the drivers of the Sooner Schooner?

      • http://www.facebook.com/people/Corey-Ragland/13752595 Corey Ragland

        Don’t act like these college players get nothing. They get a FREE college education. FREE. There are plenty of people, like myself, that are over $25,000 in debt trying to pay for college. If I could get my schooling paid for but the only thing is I’d have my “likeness” used in a video game then Hell Yes I’d take that. College football players need to quit whining about not getting paid for stuff because they get paid plenty in the form of tuition, room & board, food, and books.

  • Skyflame21

    I have to believe that the players will win this law-suit Maybe not tomorrow, but eventually down the line. Like noted above, it’ll either be a full license with rights to players names or complete generic game. If its a generic game sales will go into the tank, so EA will have to pon y up cash for for the rights or scrap the franchise. A very sad day.

    • http://pastapadre.com/ pastapadre

      I tend to agree with you on that.

      • http://twitter.com/3YardsandACloud JeffHCross

        For me, the breaking point was when Oscar Robertson joined the class action. Kellar and O’Bannon have solid cases, but the weight of Robertson’s name, plus the length of time associated, was too much to think the NCAA would win this.

    • Skihawks

      I don;t think losing “likenesses” will kill this game. They can still have an edit feature although the story goes if EA loses the roster share will have to go. Even then, the game will still have the real schools, uniforms, etc. unlike companies trying to put out a generic pro game.

      EA keeps building on NCAA 11, rosters or not, I will buy it.

  • Keith

    I don’t see EA and the NCAA winning this lawsuit. Nor do I see anybody selling college football or basketball games 5 years from now.

  • Anonymous

    Really?????? So when is a “likeness” the equivalent to a jersey number. Sounds like they are playing word association games here. Either way it is just another example of how our legal system is bogged down with frivolous lawsuit after frivolous lawsuit.

    • http://pastapadre.com/ pastapadre

      The case goes into more on the specifics beyond jersey number. They mention things like skin color, height, hometowns, left vs right handed, ect.

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  • Cbtaylo

    I hate the EA Sports monopoly but I dont want college sports completely eliminated from the landscape of videogaming. I think its a very under served market.

  • NoFro904

    If EA has the NCAA License then how come they cant use the player “Likeness”

    • http://twitter.com/3YardsandACloud JeffHCross

      Because unlike the NFL, there is no “license” for a collegiate player’s likeness. In fact, NCAA licensing rules prohibit any company from making money off of a collegiate player’s likeness. This is why you don’t see jerseys sold with names on the back, and is partially why some players (like Jeremy Bloom) have had issues with the NCAA amateurism rules when they’ve participated in other sports, professionally.

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  • Skihawks

    The one thing people have to remember is that although many of us gamers, former athletes or not, would be happy to be in a video game. However, you have to think of it this way.

    If your likeness was used in a game that generated millions of dollars, wouldn’t you want to get your share? Now you have to remember that “likeness” doesn’t have to be the use of names. It can be height, weight, number, hometown, handedness, etc. Basically, if you see #15 playing QB for the Gators who is left-handed and has the same physical attributes and maybe same equipment, most if not all people would assume that player is Tim Tebow.

    I am not a fan of this lawsuit as a gamer, but as a realist it makes sense for those that feel there “likeness” is being use to generate money.

    This could create issues. The NCAA already has a rule that a player’s likeness cannot be used on t-shirts, calendars, or other merchandise if they are still in college. That is why when you see a calendar of a specific college that many of the numbers are removed or altered.

    This lawsuit goes way deeper than video games….

    • Jig

      OK lets take this a step further, the schools themselves are making money off these kids. I’m sure Keller’s school made money off of him in some way, shape or form. He is not suing them, why? Cuz he got something out of it. So now he wants to get something out of this. Greed. Simple.

  • Sbrady2412

    yeah, i cant imagine EA winning this suit but they have great lawyers, so lets hope as gamers they do…but I believe these players are right, if I was in college and they used my likeness in a game and i could make a buck or two, I would do it for sure

  • Cheese479

    Consider this the NCAA and colleges make millions off of these young men who go out on a weekly basis and they are not allowed to even take a free lunch without risking losing there eligibility.

  • Koachvonner

    Like most on here I do not agree with this lawsuit. I think it is ruing video games at the collegiate level. Especially considering how good NCAA 11 was this year for EA. Killing Madden.
    However, at the end of the day I do believe the players are awfully close to the real thing. Hometown is off and even skin color is off in a lot of cases. Some like skin black guys are way too dark. LOL!!! Anyways, Position, Handedness, Jersey # (in most cases), are close to realistic. That’s why on average when making rosters you have to mess with the freshman. For the most part, the upperclassmen are close. Cam Newton is Cam Newton. We can’t argue with that. LaMichael James is #21. He is fast (Sp – 96) and he is in the right classification. We can’t argue that. I hope Keller losses because I love the game. But that the end of the day, I’m scared he won’t.

    PASTA – We should be talking how to solve the problem on this site. Ideas guys could give to EA (not that they would ever listen) to help out in case they have to make a generic game.

  • Cbtaylo

    The players are getting an education BUT thats all they are getting from Universities that exploit their gifts for MILLIONS$ and then if the player gets hurt or their eligibility to play football goes south…then they are dumped like a hot potato.

  • IhateSamKeller

    These two douchebags are going to ruin college games. The players have not looked like themselves in a while. Probably why game has no dreadlocks.

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