NCAA Ordered to Talk Settlement in O’Bannon Case; Eventual Resolution Will Determine Future of College Sports Video Games

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Posted March 3rd, 2014 at 1:30 pm

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Last week the judge in the Ed O’Bannon class-action case vs the NCAA ordered the two sides to enter settlement talks. Naturally questions have started to come in about whether this could accelerate a return of college football (and other sports) video games.

There is no longer a video game element to the case – although Sam Keller has continued to argue that he was not a part of the earlier settlement that got Electronic Arts and Collegiate Licensing Company out of it. A conclusion to litigation that would provide an outline for players to be paid (whether from share of broadcasting rights, personal endorsements, and/or merchandising) could open the possibility of video games back up. 

It’s very unlikely that a settlement will be reached which would mean the case proceeding through the lengthy process that with appeals could be five years away from a conclusion. There is no requirement that the sides attempt to reach one in good faith – just that they attend the required mediation. Even if a the two sides came to a settlement the specific terms would be critical.

EA could manage paying collegiate athletes $50-$100 a season. That’s essentially what they did with the $40 million settlement. With NCAA Football establishing a successful Ultimate Team mode they could afford additional costs especially when being able to promote real players officially in the game would likely increase sales of the product. Going much higher than that though, or having a system where players negotiate their own appearance fees, could make it more difficult to financially justify.

Earlier/Summary Below

The player likeness lawsuit against the NCAA, CLC, and Electronic Arts is the culmination of two high profile filings that were combined as led by Sam Keller and Ed O’Bannon (and O’Bannon now heads it up). It alleges improper use of player likeness through various forms of merchandise and media including video games in which the parties in question conspired to avoid paying players for their rights. Some interesting details and claims regarding the case at hand were revealed when EA was reentered as a defendant after initially being dismissed.

EA originally won a previous case regarding player likeness with the courts ruling video games are artistic works rather than commercial speech and therefore protected by the First Amendment. The Supreme Court in 2011 established forms of media, producing expressive works of art, are not subject to judgments based on incorporating someone’s name or likeness. That dismissed case however, involving Ryan Hart, has resurfaced after an appeals court reversed a decision based on that argument.

Recent uncovered emails have shown that NCAA representatives were well aware that players in games were based off real-life players. At one point the NCAA and EA had nearly reached an agreement to have actual player names included in the products. The EA Locker / Roster Share feature was a fallback option. With momentum clearly on the plantiffs’ side NCAA reps have begun to publicly express concern over the future of collegiate sports. A former EA Sports producer admitted players in NCAA games were based off real athletes.

The discovery of Tim Tebow’s name being in NCAA Football 10 could throw another wrench into EA’s series of arguments. Depositions from former Alabama wide receiver Tyrone Prothro and UConn basketball guard Tate George support the defendant’s reasoning for denying class action certification. The class action hearing resulted in the judge heavily questioning the legitimacy of a potential class and insisting a current athlete be involved. The judge required current athletes be added as plaintiffs for that party to have representation if the case is certified as class action. Six current college football players were added as plaintiffs in mid-July.

EA is now arguing to be dismissed as a defendant in the suit. A major defense for the company however was recently struck down by an appeals court.

This consolidated case in California if certified as class action would go to trial – barring a settlement – and ultimately be the determining factor of how the NCAA proceeds in the future handling broadcasting rights, merchandising, and video games. Should a negative result come down, which one analyst has pegged as being a potential loss of $1 billion for EA, it would likely not just end the NCAA Football series but also with it any realistic possibility of college sports games being made in the future. The trial now is slated to begin June 9, 2014. Appeals following a decision could extend the fight through 2020.

[RESOLUTION] EA and the CLC have settled the lawsuit. EA Sports will no longer produce a college football game. Getting out of the lawsuit only cost EA and CLC $40 million.

  • Keith.

    I’ve got to tip my cap to Jon Solomon, the reporter at Al.com who’s been consistently breaking most if not all of the news stories for the case. Without his reporting, we’d all be pretty much in the dark as to what’s going on.

    “EA could manage paying collegiate athletes $50-$100 a season.”

    If a settlement is reached, there will be more companies other than just EA stepping up to the plate to make a college football (and basketball) game. Remember, EA had to agree NOT to obtain any more exclusive NCAA licenses as part of its settlement of the Madden Monopoly lawsuit. And if EA has to face competition in video game football, it won’t be long until they’re left in the dust, just like they have been with basketball. So I’ve got my fingers crossed for a successful mediation.

    • http://pastapadre.com/ pastapadre

      I don’t think that would be the case at all. The investment to create 100+ teams, stadiums, and other authentic touches to all those programs would be enormous. There isn’t much room for profit even with EA’s model where they didn’t have to do a whole lot year to year to keep up.

      • Keith.

        I was able to make a decent looking Pittsburgh Steelers’ uniform in about 15 minutes, using BackBreaker’s uniform making system 5 years ago. I’ve got to believe some talented developers, using today’s tools, could get the full slate of college teams done in no time at all.

        And watching how easy it is to make beautiful looking golf courses in no time at all using The Golf Club’s course creator, I can’t imagine it would take a good set of developers all that long to bang out college stadiums either.

        • http://pastapadre.com/ pastapadre

          You say this, but then would also cite how a single stadium in MLB The Show has been said to take months for them to build.

      • Kevin C

        Exactly. EA has spent years building up the stadiums, uniforms, playbooks, program ratings, etc. To do all that from scratch would be nearly impossible. Any competitor would have to start slow and build up with 3/4 of the teams having generic stadiums and only one default home and one default away uniform. THEN you have to generate the rosters for 120+ teams. Have you ever sat down and just typed in the names of a single team? I have a keyboard and It’s mundane and time consuming. Imagine having to do height, weight, jersey number, home state AND ratings, too.

        • Iown You

          It wouldn’t be even nearly impossible. I think it’s good that people realize how hard it is to make a football game, but I think it’s taken a bit overboard at times. Difficult? Yes, but so goes the way of game development in general. The issue is not so much about difficulty as it is about cost. Eventually some company would step up to the plate, but that company would likely have a strong development history to draw from, and a lot of money to spend.

          Doesn’t matter though, I just consider NCAA video games dead. Too much legal BS behind the situation and I can’t foresee the outcome of this all being the end of it.

        • bdjoe845

          It’s actually much easier than it would be to develop a game in many other genres. After the first team is done you aren’t going to be making anything else from scratch as every team would draw from the same asset pool. This isn’t like working on, lets say Dawn of War where it was necessary to model and animate dozens of unique creatures, buildings, and weapons for each faction. You also don’t have to work out dozens of unique maps either as the differences in college stadiums with these games is cosmetic.

          This is not some insurmountable task and never has been. Up until EA got the idea to snag up every license they could plenty of developers stepped up to the plate.

          • Iown You

            The crux of what you’re saying is true, the only part I take exception with is the idea that making a football game is easier than other genres. Sure, the typical football game doesn’t have a story or a massive open world, but properly crafting A.I. that satisfactorily simulates the thinking of a human for 22 characters all at once (or more if there is any A.I. with sideline characters), is no an easy feat which is why only a few companies have ever done it well enough. Then you have to make the A.I. work with hundreds of different plays, and then make that work in a countless number of scenarios to yet again satisfactorily simulate the sport of football. And you have to make all of that run properly while having resources tugged in a totally different direction: running graphical assets for an entire stadium, 22 players, and thousands of fans.

            Then you need to tie continuous commentary into it so that it too simulates a broadcast, so here comes more A.I. headaches. Then you need stats to register properly almost in real-time as the game goes along, and then you have to create an elaborate database to hold all of that information for tons of teams over the course of a season, career, dynasty, etc.

            In light of all of that, I think making a football game is the most difficult thing to do in gaming. The only thing that gives some relief is that annual sports games like football are more inclined to build off of prior assets, whereas other types of games can’t just reuse and rehash everything without getting trashed by its fanbase and the media.

  • clintbeastwoods

    I wish someone would just burn the EA headquarters down! They are the most pathetic company in America and somehow have exclusive rights to the Nfl! I think it is time to boycott all EA games!

  • http://www.thebossboard.com Snake Eyez

    2020. The return of college sports video games :(

  • giantsap

    In all seriousness though, I don’t think an ankle is supposed to bend that way.

  • http://pastapadre.com/ pastapadre

    That’s essentially what has been questioned in the lawsuits and there has been no clear resolution. One side says video games should be like movies and other forms of art. The other side says their likenesses should be fully protected and compensated for. Rulings have favored both in different instances.

    • Rebel

      I would’ve figured at some point the courts would have nailed down what truly encompasses a likeness, but I guess that was too much to expect.

  • http://pastapadre.com/ pastapadre

    I didn’t mean to imply you said that, SCEA reps have said that. A month or more to create a stadium from scratch.

    • Keith.

      If a Show rep actually said that, then it must be true. But again, I’m assuming then that they’ve got more than one guy on the job, or else it would take several years to make all 30 MLB stadiums, which isn’t the case. No reason to think that a talented dev team, working with today’s tools, couldn’t do the same thing with college football. It’s not exactly like Tiburon’s been blowing things out of the water in the presentation/stadiums/atmosphere aspects of their NCAA games anyways. By year 2 or 3 of competing, Tiburon would be left making excuses and in the dust.

    • gamerk2

      Remember that Baseball stadiums, even the playing surface and dimensions are different. Its a different beast then a football stadium, where you only have to modify a handful of things (grass color and the stadium seating). Once you have to dev tools in place, you could knock off a stadium a weak.

  • Mike

    Just the though of the chance that 2k could make another NCAA basketball game makes me excited.

    • Rebel

      Didn’t they stop making College Hoops before all this broke because the costs outweighed the benefits for them? I know they stopped making their game a couple of years before EA stopped and I was thinking that was the reason, although I could be wrong on that.

      • http://pastapadre.com/ pastapadre

        Yes. 2K dropped out cause sales didn’t justify developing the game any longer – particularly with a second college basketball game on the market. A couple years later EA followed for the same reason. Even one game couldn’t draw enough support. The lawsuits were a secondary consideration.

        • BoomerSooner78

          Anyone Interested in making current rosters for NCAA 13? I have OU, Miami, and Notre Dame finished.

          • Wally West

            Yes, can someone please make rosters for the upcoming year.. And does anyone know when they will shut down the severs

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