O’Bannon Wins Case Against NCAA

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Posted August 8th, 2014 at 3:45 pm

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The judge in O’Bannon v. NCAA has ruled that the NCAA violates anti-trust laws by preventing players from being paid for their name and likenesses.

This does not appear to be a ruling however that threatens the core of the NCAA – one in which some surmised a more devastating ruling could bring down the organization entirely. It’s certainly far from the worst case scenario for them. That could be a good thing for the future of college sports video games depending on how the NCAA attempts to proceed. 

In a 99-page opinion, U.S. District Judge Claudia Wilken issued an injunction “that will enjoin the NCAA from enforcing any rules or bylaws that would prohibit its member schools and conferences from offering their FBS football or Division I basketball recruits a limited share of the revenues generated from the use of their names, images, and likenesses in addition to a full grant-in-aid.” Wilken said the injunction will not prevent the NCAA from implementing rules capping the amount of money that may be paid to college athletes while they are enrolled in school, but the NCAA will not be allowed to set the cap below the cost of attendance.

The injunction will also prohibit the NCAA from “enforcing any rules to prevent its member schools and conferences from offering to deposit a limited share of licensing revenue in trust for their FBS football and Division I basketball recruits, payable when they leave school or their eligibility expires,” Wilken wrote. Her injunction will allow the NCAA to set a cap on the money held in that trust, but prohibits the NCAA’s cap to be less than $5,000 for every year an athlete remains academically eligible to compete.

Essentially EA could now negotiate with the NCAA for rights to all athlete names and likenesses by paying a lump sum that would then be directed in part to the trust for the players. Athletes who enroll at universities before July 1, 2016 are excluded from the injunction however, which could make it difficult if that means EA wouldn’t be able to get any current players in a deal and would have to wait for future classes.

The NCAA can appeal but the injunction will not be stayed during that process. It’s unclear then for now whether EA Sports would be able to secure the rights they had before, and obtain those of the players, immediately so they could begin production on a college football game for next summer. It may be a bit optimistic to expect that to happen with legal hurdles still in place but it now appears to be a real possibility within the next few years while a more unfavorable ruling for either side likely would have pushed that window back much farther.

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.

[SEMI-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. The NCAA also settled their part in the video game aspect of the lawsuit for $20 million.

EA Sports testified in the case that the company would like to make college football and basketball games in the future. The case concluded in June with a ruling expected in August.

  • Mark Britten

    They wont, but 2k Sports should bid for the license if and when it becomes available again.

    • http://pastapadre.com/ pastapadre

      College still doesn’t make enough money to justify a new entrant in the space. Maybe 2K goes back to college basketball instead…it would make a lot more sense for them to develop that alongside NBA. There’s probably too much to build from scratch with football. I’m not sure EA would even start a brand new college game if they didn’t have a lot already in place and Madden to share resources and costs with.

      • Keith.

        Nonsense. Natural Motion was able to make a quality football game with a handful of devs and a shoestring budget. It’ll behoove all involved to arrive at a financial model that makes sense for everybody, and get competition among games again in the college football video game market. And the EA Madden Monopoly settlement guarantees us just that — competition and no more EA exclusive licenses.

        • http://pastapadre.com/ pastapadre

          If you’re suggesting the small team at NM (or a comparable team for another company) would have been able to develop a competent college football game with 100+ teams and stadiums, hundreds of uniforms, recruiting and progression, and everything else that goes into college football…yeah good luck with that. Going to be a whole lot more money spent building a licensed college game from scratch than an unlicensed game with no expectations. Would be a MASSIVE undertaking. Backbreaker was a failure for NM, it didn’t even sell their tech like was the intention. Completely irrelevant to how a company would judge whether to jump in on a college sports game.

          • Keith.

            I’m suggesting that 2K has more than enough resources to stand and compete on an even playing field. If EA used their college football stuff from last gen or from Madden and 2K started from scratch, 2K would be doubling them in sales in a couple years.

        • Mark Britten

          YMMV on the definition of “quality” there. As much as Backbreaker was a cool concept, that’s all it really was, a concept. The game was to put it mildly, dire. And I say that as someone who was on there forums and whose name is the game thanks to their “poster into players” program lol.

      • Mark Britten

        That makes sense for sure. I’d definitely buy a 2k college basketball game (would probably have to import a US copy, since no way would it get a PAL release, but anyway…), so I for one hope they do that.

        More 2k football is a pipe dream for sure, but I would like it for nostalgia purposes (although because of how nostalgia is, it would never beat NFL 2k5 anyway, of course).

  • Keith.

    “Essentially EA could now negotiate with the NCAA for rights to all athlete names and likenesses by paying a lump sum that would then be directed in part to the trust for the players.”

    Who cares about the hacks down in Orlando making another NCAA game. I haven’t read the opinion yet, but part of EA’s settlement of the Madden Monopoly lawsuit involved EA agreeing not to seek another exclusive NCAA license for years to come. So, if anybody has a shot of getting back into NCAA video games (again I haven’t had a chance to read the opinion), 2K I’m sure will be right there at the front of the line.

    • kenmid

      I care, but I guess i’m a nobody

    • Mark Britten

      Who said any license had to be exclusive? They’d be nothing at all, except financial considerations that Pasta mentioned in reply to my earlier comment, to stop both EA and 2k pursuing college licensing. I wouldn’t bet on 2k doing so however.

      • http://pastapadre.com/ pastapadre

        Yeah, cause it’s fairly questionable the profitability of a college football game for EA on their own. The idea that someone else would build from scratch spending years just to produce the first game which wouldn’t necessarily be good, just for the opportunity to fight for sales against the established college product, is even more difficult to imagine.

    • bltzkrieg666

      “Hacks down in Orlando”. Seriously Keith you should learn to stay in your box. What exactly is it that you do for a living? Your childish bias war between EA and 2K shreds any bit of credibility you have.
      Your just a disgruntled 2k fanboy who is still butt hurt over the fact that 2k will NEVER make another football video game again.
      Im also pretty sure that you are a little worried that your precious NBA2k is in jeopardy as well. You can keep pontificating all you want about the big bad EA, and you can reference VG Chartz unsubstantiated data all day, but the bottom line is this. EA is the one who is on top, whether you like it or not.

      • Gary Keith

        I don’t understand the love for the 2K games, I think they sucked. Try out NBA2k, it is decent, but far from amazing.

      • Gary Keith

        I don’t understand the love for the 2K games, I think they sucked. Try out NBA2k, it is decent, but far from amazing.

    • Gary Keith

      I loved the NCAA football games made by EA, please speak for yourself.

  • MBird

    I guess I never understood why EA just did not completely randomize the rosters. They could have then offered a DLC roster with the real names and likeness of the players and compensate them from that pool of DLC. Yes, I know this technically would have been against previous NCAA rules, but since I don’t think there really are any rules anymore, why could this not have worked? Also, I know I am talking about paying for DLC which some disagree with, but nonetheless, outside of the dwindling sales, I don’t see how this couldn’t have worked.

    • http://pastapadre.com/ pastapadre

      They didn’t think they needed to randomize them. I mean, they were very close to an agreement with NCAA where the names would have been added to the game too. If they had randomized them they believed sales would have taken a hit (and they probably were right in that regard).

  • Tony

    THE NCAA AND THERE SNEAKY WAYS BEEN A JOKE FOR YEARS USING THESE KIDS TO GAIN A PROFIT, BRING BACK COLLEGE SPORTS GAMES (football,basketball, and the possibility of LAX) IJS

  • little britches

    EA could make a new College game easy, just port over the 360/PS3 version like they did Madden 25. Other than 1080P graphics it was the same game with a little tuning. People would be so happy to have a new NCAA game it would sell.

  • LenInFlux

    It’s really nice to think that this would open the door to a game in the near future but that’s wishful thinking. No game developer is going to risk getting sued again and the results of this lawsuit does not guarantee that. We may see a game again some day but that is going to be many years from now.

    • JC

      What’s to stop a future developer from releasing a game with completely random rosters that can still be edited? Couldn’t one argue that you can have the ability to edit not so you can re-create the starting QB at your school but you as the QB? I am sure there are some roster gurus who will edit the rosters to our liking!

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