Sam Keller sues EA Sports and the NCAA

[Logan]

O'Bannon v. NCAA stems from a series of documents Division I student-athletes are required to sign as part of their participation in college sports. Form 08-3a (the "Student-Athlete" statement) is one such document. Among other conditions, it specifies, "You authorize the NCAA . . . to use your name or picture to generally promote NCAA championships or other NCAA events, activities or programs." By signing the statement, student-athletes relinquish in perpetuity all future rights in the NCAA's licensing of their images and likenesses. O'Bannon claims that student-athletes -- some of whom are younger than 18 -- effectively have no choice but to sign, since they would otherwise be deemed ineligible to play and would risk losing their athletic scholarships.

Bold means they have a choice not to sign. I'm sick of this crap already.

[JonInMiddleGA]

Originally Posted by Logan

Bold means they have a choice not to sign. I'm sick of this crap already.

Ding ding ding, we have a winner.

There is no constitutional right to playing at an NCAA member school if you don't choose to abide by their rules.

And somebody tries to claim one & actually finds a court stupid enough to go along with it then it's time we tear the fucker up & start over.

[BishopMVP]

Does the fact that many sign the papers under 18 mean it's not an enforceable contract?

[Logan]

Originally Posted by JonInMiddleGA

Ding ding ding, we have a winner.

There is no constitutional right to playing at an NCAA member school if you don't choose to abide by their rules.

And somebody tries to claim one & actually finds a court stupid enough to go along with it then it's time we tear the fucker up & start over.

I'd love the NCAA to come out and sue Ed O'Bannon for that $3.9 million NBA contract he signed, saying how without the services they provided for him he wouldn't have gotten a nickel.

I really think the most likely result that would actually come from any of these lawsuits is exactly what you described.

Originally Posted by BishopMVP

Does the fact that many sign the papers under 18 mean it's not an enforceable contract?

If you're under 18, you need to sign your National Letter of Intent along with a parent...I'm assuming that part is either included within it, or the same rule would apply for the separate document.

[GoDukes]

Originally Posted by Logan

Comedy would be when no one pays him a god damn cent because no one out there gives a shit about his likeness.

Really? You mean like people don't want to play as certain people, and would still buy the game if the players on the teams bore no likeness to their real life counterparts? People didn't want to play as Tim Tebow/Percy Harvin/etc?

[CamEdwards]

Originally Posted by GoDukes

Really? You mean like people don't want to play as certain people, and would still buy the game if the players on the teams bore no likeness to their real life counterparts? People didn't want to play as Tim Tebow/Percy Harvin/etc?

You just described me. I've had the NCAA game for a week now and haven't touched the dynasty mode. I created a fictional universe in the Road to Glory mode. I may do a dynasty after this, but I'll end up using fake names anyway.

[Logan]

Originally Posted by GoDukes

Really? You mean like people don't want to play as certain people, and would still buy the game if the players on the teams bore no likeness to their real life counterparts? People didn't want to play as Tim Tebow/Percy Harvin/etc?

Since you only partially quoted my post from a month and a half ago, I'll put the whole thing out there:

Capitalism would be if he goes around offering his likeness (or real-ness) to the highest bidder.

Comedy would be when no one pays him a god damn cent because no one out there gives a shit about his likeness.

Tim Tebow, Percy Harvin, Sam Keller. Which one sticks out in not really seeing a big market for their likeness? You can be sure the Arizona State and Nebraska fanbases would prefer a randomized QB than being forced to be reminded of Keller.

[Samdari]

Originally Posted by Logan

I'd love the NCAA to come out and sue Ed O'Bannon for that $3.9 million NBA contract he signed, saying how without the services they provided for him he wouldn't have gotten a nickel.

Except that's not true.

He was the #1 player in his HS class, down to the the low lottery by the time he was drafted. He likely would have been much higher had he not gone to college.

[Logan]

Originally Posted by Samdari

Except that's not true.

He was the #1 player in his HS class, down to the the low lottery by the time he was drafted. He likely would have been much higher had he not gone to college.

So a lawsuit filed without merit? Where have I seen that recently?

[sterlingice]

Originally Posted by Logan

I hope the Nets turn around and sue Ed O'Bannon.

SI

[Mizzou B-ball fan]

NCAA procedural arguments rejected. O'Bannon case will now head to a hearing of arguments whether players should receive a portion of TV revenue.

Judge rules NCAA athletes can legally pursue television money - ESPN

[MrBug708]

Originally Posted by Samdari

Except that's not true.

He was the #1 player in his HS class, down to the the low lottery by the time he was drafted. He likely would have been much higher had he not gone to college.

He's knees were destroyed in college

[Logan]

Seeing my posts at the top of this page nearly 4 years later, my views have certainly changed...

But an interesting catch/article here:

EA Sports used Tim Tebow's name in NCAA Football 10 - SBNation.com

[cody8200]

I love college sports but I hope the NCAA and EA get destroyed by this lawsuit.

And in a related note, that the school, conference, NCAA, broadcast networks, etc all make money on the backs of a player that is not permitted to play professionally until they attend one year of college or sit out from mainstream sports for an entire year is unconscionable. It is directly contrary to any other professional endeavor I can think of.

[RainMaker]

I think the NCAA is going to lose the lawsuit. Strausser's testimony was killer, and they keep finding little things like the Tebow bit.

[QuikSand]

Originally Posted by cody8200

I hope the NCAA and EA get destroyed

you had me at hello

[Grammaticus]

What do they (representing players/athletes) want in the end? All athletes get a share? Athletes get a share based on their individual contribution to revenue?

[dawgfan]

Originally Posted by Grammaticus

What do they (representing players/athletes) want in the end? All athletes get a share? Athletes get a share based on their individual contribution to revenue?

Welcome to the can of worms that these cases open up.

[molson]

Originally Posted by Grammaticus

What do they (representing players/athletes) want in the end? All athletes get a share? Athletes get a share based on their individual contribution to revenue?

Freedom to negotiate those things. (ultimately)

[Mizzou B-ball fan]

Current athlete can now join the O’Bannon case | CollegeFootballTalk

[bob]

Here's one of the things I don't understand about how the situation could play out. Let's say Notre Dame signs a high profile QB, gives him number 3, and he doesn't pan out. #3 is the highest selling ND jersey (i would guess, but pretty sure) given Montana, Mirer, Powlus (despite the "bust" label, set a ton of records there), and Michael Floyd plus other older stars (pre-Montana) I can't seem to recall off hand. If college players get paid for jersey sales, who gets paid when ND sells #3 under this scenario? Unlikely people are buying the jersey of the hypothetical bust QB, right?

Edit: Typically ND doesn't put last names on the back of their football jerseys. I think they currently only do it for bowl games.

[Izulde]

Originally Posted by bob

Here's one of the things I don't understand about how the situation could play out. Let's say Notre Dame signs a high profile QB, gives him number 3, and he doesn't pan out. #3 is the highest selling ND jersey (i would guess, but pretty sure) given Montana, Mirer, Powlus (despite the "bust" label, set a ton of records there), and Michael Floyd plus other older stars (pre-Montana) I can't seem to recall off hand. If college players get paid for jersey sales, who gets paid when ND sells #3 under this scenario? Unlikely people are buying the jersey of the hypothetical bust QB, right?

Edit: Typically ND doesn't put last names on the back of their football jerseys. I think they currently only do it for bowl games.

My thinking is that it goes to whomever of the school wears that number currently. Remember, even when jerseys are sold in the university bookstores, NCAA rules prohibit names on the back of the jersey.

I suspect the ruling, even it allows college players to be paid for jersey sales, only means that they compensate for the sales as long as they're at the school, wearing that number, and that the lawsuit won't specifically change the rule surrounding the sale of jerseys and names on them.

[bob]

Originally Posted by Izulde

My thinking is that it goes to whomever of the school wears that number currently. Remember, even when jerseys are sold in the university bookstores, NCAA rules prohibit names on the back of the jersey.

I suspect the ruling, even it allows college players to be paid for jersey sales, only means that they compensate for the sales as long as they're at the school, wearing that number, and that the lawsuit won't specifically change the rule surrounding the sale of jerseys and names on them.

But isn't part of Ed O'Bannon's lawsuit that they also profited on his likeness after he left? Seems like any number of those other #3's could argue it was their likeness, not the current (hypothetical) underachiever in that jersey.


Follow up question here - what's the guess at what happens if the NCAA loses? Top schools break away under their own system, everything else dies?

[Izulde]

Originally Posted by bob

But isn't part of Ed O'Bannon's lawsuit that they also profited on his likeness after he left? Seems like any number of those other #3's could argue it was their likeness, not the current (hypothetical) underachiever in that jersey.

A number isn't a likeness, so that wouldn't work. Retired numbers may be the exception to this rule.

Follow up question here - what's the guess at what happens if the NCAA loses? Top schools break away under their own system, everything else dies?

The immediate effect would be that the gap between the top-tier programs and everyone else would get even wider.

There will also, I think, be an ever more intense debate about the athletics arms race and you may see more mid-tier and below programs cutting way back on the budget. Or you may see an even bigger pouring of resources and an exacerbation of the problem.

Ultimately though, I think the system implodes on itself. When the gap is that wide and the handful of schools in contention each year becomes even smaller, people may watch less and less. This may not be true for basketball - there's enough schools there and the impact of one player is so much greater because of the smaller rosters that the sport's revenues won't be hurt.

But football? Yeah, that's eventually going to kill off that cash cow or at least wound it to the point where the current system dies off and is replaced by something else.

[bhlloy]

Originally Posted by Izulde

A number isn't a likeness, so that wouldn't work. Retired numbers may be the exception to this rule.

yes, and I meant to post this last week when this was brought up. There's a pretty big difference between EA Sports creating Arizona State QB #13 that looks as much as like Sam Keller as possible, with his exact height weight hometown and ratings as close to his scouting report as they can get and saying that anybody who wears #1 at Notre Dame is entitled to a cut of the money from jersey sales from here until eternity. I'm not sure how we got from point #1 to point #2 but I'm far more sympathetic to #1.

[Solecismic]

What is a "likeness", though? If you know who it is, through jersey numbers or scrambled names or faces or statistics, it is who it is.

If that's the standard, EA doesn't win.

The first legal question is whether EA's actions prevent the players from pursuing the sport through denying them economic advantages. That's a non-starter, and the courts have been fairly rigid about that.

The second legal question is whether EA's use of likenesses cause a reasonable customer to assume the players have endorsed the product. With that question, you need to look at the advertising and the representations made in the product itself. That might be a tougher question. Since I don't play these games, I can't make a reasonable guess here. Denard Robinson is on the cover of the current game, right? That implies something. I wouldn't grab a picture of Peyton Manning and stick it on the splash screen of FOF, but I have no problem using jersey numbers and player names and team names (not team nicknames, that's a copyright issue).

I'll add that states might consider this a privacy issue. While federal trumps state, these suits can always get messy. Also, with overseas leagues, it's a different ballgame entirely. In many places, using the names is protected.

[Logan]

Here comes the...

NCAA will not renew EA Sports contract

[britrock88]

Originally Posted by Logan

Here comes the...

NCAA will not renew EA Sports contract

Hmmmmmm...

[Izulde]

Looks like an attempt to cover its backside.

[DaddyTorgo]

Is that not a big deal though?

[Izulde]

Originally Posted by DaddyTorgo

Is that not a big deal though?

I'd say it's fairly significant as an indicator that the O'Bannon case is going to go very poorly for the defendants.

[Logan]

Originally Posted by DaddyTorgo

Is that not a big deal though?

In reading opinions on Twitter, it likely only means that there will be no technical NCAA license on the game. No NCAA logos. But all the teams/stadiums/bowls are licensed through what's called the CLC, and EA can still pursue a deal with whatever that is.

Doesn't mean they will of course. I think this means much more as it relates to the lawsuits than it does one actual video game.

[Eaglesfan27]

This may also have to do with madden monopoly lawsuit. I am interested to see if 2ksports does an ncaa football game.

[nilodor]

Might be a good year to pick up NCAA 14...

[MacroGuru]

The NCAA has never licensed the use of current student-athlete names, images or likenesses to EA. The NCAA has no involvement in licenses between EA and former student-athletes. Member colleges and universities license their own trademarks and other intellectual property for the video game. They will have to independently decide whether to continue those business arrangements in the future.

This paragraph tells me all I need to know why the NCAA is doing this...it's their way of CYA and they will point this out in court and try to shift all liabilities to the universities...

[Eaglesfan27]

Originally Posted by MacroGuru

This paragraph tells me all I need to know why the NCAA is doing this...it's their way of CYA and they will point this out in court and try to shift all liabilities to the universities...

Missed that the first time. Agreed, NCAA is CYA.

[Izulde]

Yep.

[Mizzou B-ball fan]

@McMurphyESPN: First non-NCAA affiliated EA Sports college football video game will be called "College Football 15" source told @ESPN

[Mizzou B-ball fan]

New plaintiffs being added to the case.

Six current football players join Ed O'Bannon's NCAA lawsuit - ESPN

[Mizzou B-ball fan]

Outside the Lines report on the NCAA/EA situation.

Latest developments in NCAA, Electronic Arts lawsuit significantly change case - ESPN

[molson]

Pretty big 9th circuit court of appeals win for the players. The Court affirmed the district court's denial of the NCAA's motion to strike the complaint. The Court held that the NCAA has no 1st amendment right to create likenesses of players, and that the creation of these likenesses went beyond the "reporting of factual information" that is protected by state law.

Ex-NCAA athletes can sue Electronic Arts over video game likenesses - latimes.com

[Solecismic]

This is shocking to me. It undermines everything I've understood about the law. Lanham hasn't even been mentioned, nor has the rather complete defense of using likenesses in Cardtoons.

Either the EA lawyers are incompetent, trying to lose, or the law is being rewritten by these judges.

EA had the licenses more to try and shut out other publishers than to have anything worth while. I wonder if they're playing a dangerous game of trying to lose (claiming the avatars in the game aren't likenesses is a ludicrous defense) and hoping to settle at a reasonable cost. That would really keep competitors out of the market.

[dacman]

Originally Posted by molson

.. 9th circuit court of appeals...

Originally Posted by Solecismic

..or the law is being rewritten by these judges...

^
|
This.

[JonInMiddleGA]

Originally Posted by molson

Pretty big 9th circuit court of appeals win for the players.

Not a big shock there. Most liberal court in the land.

Not trying to introduce a ton of politics here, just noting that a ruling like this from them isn't a surprise (as it seems to be to some)

[kcchief19]

Originally Posted by Solecismic

This is shocking to me. It undermines everything I've understood about the law. Lanham hasn't even been mentioned, nor has the rather complete defense of using likenesses in Cardtoons.

Either the EA lawyers are incompetent, trying to lose, or the law is being rewritten by these judges.

EA had the licenses more to try and shut out other publishers than to have anything worth while. I wonder if they're playing a dangerous game of trying to lose (claiming the avatars in the game aren't likenesses is a ludicrous defense) and hoping to settle at a reasonable cost. That would really keep competitors out of the market.

I can only conclude that EA is using different strategies in Heller and O'Bannon just to see what sticks to the wall. I've been wondering for a while if EA doesn't care about the jury trial because they know they will lose. The plaintiffs will present a very sympathetic case, and the defense is very complex. A jury trial almost seems to be a lost cause, but wining on appeal seems more likely.

I don't understand the Lanham Act enough to know if it applies, but isn't the defining element of Cardtoons the parody element?

I've felt all along that there are two elements to the case -- one is information available to everyone (the MLBAM vs CBC standard) such as height, weight, uniform number that is not protected copyright. Second is the avatar in the game. I'm not sure I've ever seen an in-game avatar that actually looks like the player in real life.

The O'Bannon team seems to be better prepared than the Heller team. The Heller lawyer is talking about exposing the NCAA's hypocrisy in their case. Last time I checked, I don't think you can sue someone for being a hypocrite.

[Logan]

Originally Posted by kcchief19

I've felt all along that there are two elements to the case -- one is information available to everyone (the MLBAM vs CBC standard) such as height, weight, uniform number that is not protected copyright. Second is the avatar in the game. I'm not sure I've ever seen an in-game avatar that actually looks like the player in real life.

They also use skin color and while that can be argued as being random (not many colors to choose from), I'm sure they can show a pretty high correlation that white players in real life are depicted as white in the game, and same with black. And then I also remember a couple examples of a black player being portrayed as white in a particular version, and EA going back and fixing it with an update.

I'd assume that would be a pretty telling example to bring up, if it actually happened.

[Logan]

Originally Posted by Mizzou B-ball fan

@McMurphyESPN: First non-NCAA affiliated EA Sports college football video game will be called "College Football 15" source told @ESPN

Not so fast...

BREAKING: @EASPORTS will NOT publish new college football game next year. Evaluating future of the franchise in wake of lawsuits #sportsbiz

— Scott Soshnick (@soshnick) September 26, 2013

[CraigSca]

Crap, does this mean they will no longer update my favorite team's socks?

[TRO]

More time to work on dreadlocks.

[Huckleberry]

I see huge market share grab potential for FOF:TCY2