Discovery Phase of Keller/OBannon Case Calls Future of NCAA Video Games in Question - RaychelSnr's Blog

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Discovery Phase of Keller/OBannon Case Calls Future of NCAA Video Games in Question Stuck

Posted on September 19, 2012 at 05:17 PM.

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There's just so much to this story, and the whole definition of college athletes and what it means to be one and what rights you have just gets more and more interesting.

This all stems from the Sam Keller/Ed O'Bannon case which was filed against EA and the NCAA for allegedly profiting off of student athlete likenesses. I have been writing about this story for over two years now, and we're just now getting to the juicy details of this case, which will go on trial starting next year.

There's no coincidence EA negotiated an end to their NCAA Exclusive license in the Madden Monopoly Lawsuit -- the end date happens to coincide with the trial date.

What we have learned today is that while College Admins and NCAA brass typically present a unified front on the definition of student athletes, what goes behind closed doors, is a little less certain:

"This whole area of name and likeness and the NCAA is a disaster leading to catastrophe as far as I can tell," wrote Perlman, a former member of the NCAA Board of Directors and law professor specializing in intellectual property. "I'm still trying to figure out by what authority the NCAA licenses these rights to the game makers and others. I looked at what our student athletes sign by way of waiver and it doesn't come close."

Wallace Renfro, a senior policy adviser for the NCAA, suggested that the term "student-athletes" be dropped in lieu of all of this. "Just refer to them as students."

The Keller/O'Bannon lawsuit claims the NCAA violates anti-trust laws by preventing universities from allowing athletes to be compensated above the value of a grant-in aid room, board, books and fees. The discovery phase (ongoing) made the NCAA hand over e-mails and confidential documents which basically shed the light on the organizations finances and communications.

Simply put, we're finding out how big of a shell game the student-athlete picture is.

"I'd rather not comment on the evidence itself," said Michael Hausfeld, lead attorney for the plaintiffs, when contacted Tuesday by ESPN. "But I will say the documents expose how the principle of amateurism was not a bedrock against the NCAA's commercialization of college sports."

Part of the argument in the case is that EA and the Collegiate Licensing Company (the NCAA's licensing arm) use player likenesses in games. EA and the NCAA contend that's not true because names aren't used, despite the likenesses within the game being close to their real-life counterparts.

From the discovery cache, you see the CLC commenting about EA using real-names in a pre-release edition of the game:

"Just a heads up, in case schools ask you this all of EA's latest 2008 March Madness basketball submissions have current players names on the jerseys in the game," wrote Wendy Harmon, a CLC marketing coordinator. "I have called Gina Ferranti at EA about this (she submits all of these basketball ones) and she assured me that they will not be using those in the final version. She said they have to put the players names in so it will calculate the correct stats but then they take them off. Just don't want the schools to freak out she said a few have already commented on it in their approval."

About an hour later, CLC senior vice president Derek Eiler forwarded the email from Harmon, notifying other top executives at the CLC. He wrote, "Just an FYI on this in case word reaches the NCAA. This is exactly the type of thing that could submarine the game if it got into the media."

Another interesting tidbit from the ESPN article is that real names almost appeared within the game anyways:

"The primary purpose of this meeting was to lobby for the rights to use rosters in video games, including the names of players on jerseys within the game. While it will still take some time (probably 12-18 months) to go through the NCAA legislative process, Greg is now confident that we will get this done. That will be a huge win for us and EA."

As of 2012, that proposal was long dead.

I can confirm as well that EA has hired big name roster editors from the community for their NCAA Football series to basically ensure roster accuracy compared to the real players. There is zero doubt that EA has indeed hired people to edit rosters for them in their NCAA Football game to make them close to player likenesses.

The question the courts will have to decide at this point is how much did EA and the NCAA violate and to what extent does this end the NCAA's claims of student athletes amateurism.

In my mind, this is a case that is going to be a landmark ruling. It's too early to say which way the courts will go, but the momentum seems to be on the side of the athletes for now.

It also makes me question the future of the NCAA Football series, as licensing costs will almost certainly radically spike (much less the amount that will have to be paid at the end of the case) in the coming years given a favorable ruling for the players. In that instance, I don't know if EA will have the stomach to continue the NCAA Football series, which has always sold well behind Madden's pace.

Comments

# 1 Bmore Irish @ Sep 19

the problem, jerseysuave, is that would never happen. if the universities cared to help out their players more, then they would already give them some kind of stipend for total living costs. its been estimated that a full athletic scholarship is about $2,000 short of what it really costs to go to school each year. and most athletes cant just take out student loans as these privatized loans would nullify their scholarships.

its interesting, cuz we were just talking about this case in my sport law and policy class today. there is actually a divide between university presidents and chancellors today on whether the ncaa should allow players to market themselves for their own benefit. in other words, they would get paid for their likenesses in video games, they could get paid to do some sort of local tv commercial, or even possibly a larger endorsement, etc. right now, the word thats used is exploitation. many are saying the ncaa is exploiting these "student-athletes". i believe there is a quote out there from an official at nebraska, i forget if its the president or ad or whatever, but hes essentially agreeing with this idea that athletes are being exploited and deserve to market themselves.

# 2 kingsofthevalley @ Sep 19

Them lames about to fudge up NCAA before it can get back to its former glory. I'm definitely NOT rooting for them lames.

# 3 bigdoc85 @ Sep 19

Thanks for this. To me, this is a primary reason we shouldn't expect an NCAA basketball game anytime soon. Now I'm wondering if I should buy NCAA 13 Football while I still can!

# 4 inkcil @ Sep 19

Athletes not getting paid by a multi-million or billion dollar companies for using their license is a complete joke.

# 5 smithdynasty @ Sep 19

SMH... I just want a college hoops game

# 6 Greatness @ Sep 19

Well, it's about time! I hope Sam Keller, Ed O'bannon and all of the other athletes student or other wise get the maximum amount awarded to them by law. I hope those thieves at EA get the bank broken on them for this low down, dirty and underhanded tactic!

# 7 K0ZZ @ Sep 19

So when I played high school football I should've receive a check because the school sells tickets and they profit off the use of 'me' as an athlete to bring in revenue? EA isn't at fault at all and it's obviously just the plantiff's reaching out to try and snag as much money as possible. The NCAA can reasonably be pulled into question but at the same time, these student athletes are being given money in the form of a scholarship, the scholarship also entitles them to an education that millions around the nation are fighting to just get accepted into, at the least eliminating the rule about being not allowed private loans in conjunction with the scholarship to accommodate minor living expenses, but no, if this lawsuit wins, than it's going to trickle down the system until you have high school athletes working out where they can be paid the most to play.

Use the education they are being handed to the fullest and they will be much better off than someone who might've not gotten into college, or even their fellow college students as they won't have piles of debt to fall into. Keep money out of college athletics, it ruins the professional game and it'll easily ruin the college game if they can add pure cash as an incentive.

Should they be given more leg room to create some money of their own? Sure. Should it be a weekly [or any time period] paycheck for a school athletic event? No.

# 8 BSchwartz07 @ Sep 19

What blows my mind is how "student athletes" have pretty much no rights. If I were attending Big time U as a music major and receiving scholarship money to do so as well as played in the band, I can spend my summer playing concerts for money. I can even release my own album and collect any profits from that. Yet Joe Athlete so much as gets a cheeseburger for free and he/she is subject for loss of eligibility and scholarship. Meanwhile they can walk into any local store and see their jersey hanging in the window.
My solution to all of this would be to just allow the athletes the rights to their own image. If Matt Barkley wants to do a Nike ad, let him. If Geno Smith wants to do ads for a local restaurant, then fine. For a lot of these kids this is the only chance they will have to capitalize on their talents, and as of now Nike, ESPN, EA Sports, and the colleges are raking in HUNDREDS OF MILLIONS why not let the students go out and make some money for themselves?

# 9 BSchwartz07 @ Sep 19

Chicagopax, you really must have no idea what the life of a student athlete is like. For most football players their major is selected for them, as are their classes. They are kept in "rocks for jocks" classes which allow them to apply minimal time to school work while still remaining eligible to play. By the time the kid realizes that they aren't going pro in whatever sport it is far too late to change majors. That is assuming that the school retains their scholarship, NCAA athletic scholarships are a ONE YEAR contract which are at the discretion of the coach and AD to renew. Many SEC schools over recruit and cut upper class-men who have not lived up to potential. Leaving these kids out.

# 10 RandyBass @ Sep 19

Quote:


	"But I will say the documents expose how the principle of amateurism was not a bedrock against the NCAA's commercialization of college sports."

Don't need documents. Even a blind man could see this. It's been happening for decades now.

Quote:


	I can confirm as well that EA has hired big name roster editors from the community for their NCAA Football series to basically ensure roster accuracy compared to the real players. There is zero doubt that EA has indeed hired people to edit rosters for them in their NCAA Football game to make them close to player likenesses.

The most amazing part about this to me is not that it happened, but that they did such a crappy job. NCAA's default rosters are notoriously way off the mark. More wasted money by EA. Seems like they spend money on just about everything except their product.

# 11 Sidion @ Sep 19

I honestly don't see anyone winning here. Give them monetary compensation for use of their likeness, the cost suddenly rises so much no one wants to make a college ball game... Or you deny them and essentially have them working for what in the sporting world equates to minimum wage.

# 12 Computalover @ Sep 20

what is the going rate for a likeness? it resembles you? its nearly identical.. but a black guy instead of white? and what is the correct compensation for this? sam keller, what should you be paid for having ur likeness in the game? I play with maryland exclusively, most of us never played with ur school.. there r 120 teams in this game.. what would be just payment? or r u really thinking ur likeness is worth millions to replace the 0 cash from ur NFL career? EA settle the damn thing.. pay a sliding scale based on the level of the player, and the number of years their so called likeness was used in the game. a 3rd string qb gets little.. a high draft pick get a bit more. about 2000 bucks should shut keller up... but he is anticipating a big payday.. but he should get the value his likeness brings to the game, which is minimal at best.

# 13 RandyBass @ Sep 20

To the above two posters:

Quote:


	As a red shirt senior 3rd string LT for ISU, I demand some money for them using my "likeness"!! Do you people see how ridiculous that sounds!?! I'd just be like, hey! That's suppose to be me! Awesome! What a joke.

It's not a joke. The principle point of the case is exploitation, not money. The NCAA is, and has been, exploiting these athletes for financial gain.

Quote:


	sam keller, what should you be paid for having ur likeness in the game?

Yeah, again, there are such things as principles. Both you guys are essentially condoning stealing a little bit from a lot of people. It's wrong and shouldn't be happening.

This is such, basic and fundamental stuff here. King Solomon ye ain't.

# 14 thescoop @ Sep 20

Sam Keller is a failure. He was a bad football player and his lawsuit is a joke. I guess if you can't be a winner on the field maybe you can attempt to be a winner in a court room. Our courts are such jokes these days.

# 15 Beastly Wayz @ Sep 20

[what is the going rate for a likeness? it resembles you? its nearly identical.. but a black guy instead of white? and what is the correct compensation for this? sam keller, what should you be paid for having ur likeness in the game? I play with maryland exclusively, most of us never played with ur school.. there r 120 teams in this game.. what would be just payment? or r u really thinking ur likeness is worth millions to replace the 0 cash from ur NFL career? EA settle the damn thing.. pay a sliding scale based on the level of the player, and the number of years their so called likeness was used in the game. a 3rd string qb gets little.. a high draft pick get a bit more. about 2000 bucks should shut keller up... but he is anticipating a big payday.. but he should get the value his likeness brings to the game, which is minimal at best. ]

Totally Agree with your comment. These Student Athletes should be paid for the Billions that certain programs receive due to their athleticism and sport which is another topic, but for their "likeness" on a video game, get real guys.....

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