Sam Keller sues EA Sports and the NCAA

[RainMaker]

Originally Posted by TroyF

The sites I looked at today stated each player will get about $200.00 Unlike jerseys or other types of school related flair, every player in the NCAA game gets a cut. How are you going to differentiate between who bought the game because of wanting to play with Johnny Manziel vs. the guy who bought the game because his son was the third TE on North Texas?

While these games are goldmines, they aren't enough of it to make every DI player get thousands of dollars a year off of them. So these guys killed a game that I can assure you many of their peers played while at school and still play to this day because they wanted their little cut.

They have the right to do it. Good for them. I truly mean that. If getting $200 - taxes is a win for them, they got it. They didn't change anything. The players are not going to get money anytime soon. For starters, every school doesn't have money to give. Beyond that, the schools are not giving up their cut. They simply aren't.

Everyone is comparing this to Curt Flood. . . sorry, that's wrong. This will not change anything other than NCAA football not being produced and maybe players names not being printed on the back of jerseys at the team store.

If that's what they were going for, they got the W. Congrats to Ed on his $200.00 check. Yippee.

Might come as a shock, but people don't work for free for your personal enjoyment. They should be compensated (even if it's a small amount) for their likeness being used which obviously adds to the game. Just as anyone should be compensated for their likeness being used in a game, movie, TV, ad, or whatever.

As for who gets the money, that'll be up to negotiations. My guess is most college athletes would sign on to a licensing group that would decide how the money is doled out in advance. Maybe it's $200 per player, maybe it's dependent on other factors. And of course players like Johnny Manziel can negotiate his own deal if he feels like it.

This isn't some new territory. Professional sports have done this in licensing for decades. The NCAA can do the same thing, there is enough money at play. Still don't know why people are so jealous of these kids earning their market value.

[Izulde]

I'm actually working on article right now to submit for publication on my own idea of how to fix college sports. We'll see if it gets accepted or not once I submit it, but I figure it's worth a shot.

[Solecismic]

Control over a likeness is a tricky concept. What is a likeness? The First Amendment indicates we can't control use of our names. In fact, you can't even copyright a name and there are limitations to trademarks.

Obama, for example, can't control columnists from using his name, nor can he stop photographs from being printed. As long as the photograph itself was not stolen, those can be used.

The question the courts have apparently considered is that a video game picture is not protected by any free speech argument. Or at least EA feels the courts could go in that direction, hence the settlement.

So, technically now, if someone created a game where Obama ran the country and he didn't like the potential outcomes, he could sue under this interpretation.

Is that a good thing? Sarah Palin wanted to sue because that HBO movie took some liberties with her story line. She was quickly advised that the law allows movie producers to use her likeness in this manner. We have all manner of movies about Lincoln and other dead people, whether he's freeing slaves or hunting vampires.

Is that a good thing? I think so. If someone does something notable, we want to reflect that in art. We have libel and slander laws to protect people, though those protections are rather weak for celebrities.

Can a video game be considered an expression, just like a movie or a painting (see Tiger Woods' attempts to control his likeness in that manner, for reference - Daniel Grant: Sports Artists Battling Big Money, Trademark Lawsuits (and Winning!)

The Lanham Act was carefully crafted to walk this line. Why isn't it used here? Lanham states that free speech rights override compensating people for becoming famous. As long as there's no question about endorsement, speech is permitted. As for damages under Lanham, the players would have to show financial damage from EA's work, which they can't. It's all very carefully outlined in Cardtoons v. MLBPA (http://cyber.law.harvard.edu/IPCoop/96card1.html) as well as a long and dry, but useful, analysis of the value of celebrity.

But, as was pointed out, Cardtoons was deemed a parody, not a video game. So the question was whether free speech included parody, even though there was no question that Cardtoons was making a commercial product, not reporting the news. Parody beat right to publicity. Are video games art or parody or anything at all?

CDM Sports v. MLBAM allowed fantasy sports games (Major League Baseball Advanced Media) - Wikipedia, the free encyclopedia. Names and statistics are part of the public domain. I don't worry about my product being deemed illegal because I don't claim endorsement (Lanham) and names and numbers alone aren't considered likenesses.

But this worries me a little. I think, as it applies to me, that any attempt to provide player avatars is risky. I also worry that the act of simulation might be risky. Even though a computer simulation is somewhat a bunch of "what ifs" seen through an awful lot of research and the broad brushstrokes of statistical interpretations. It's simply advanced use of names and statistics. I think there's a lot of art to it, but the courts may disagree.

I thought, initially, EA was playing to lose here. To protect the notion that a license is required for this type of product. But they've discontinued the product while seemingly paying a lot of money for this specific license (the players won't get nearly $200 by the time the lawyers are done with their share). I know, from discussions with game publishers, that publishers aren't all that interested in legalities. They love licenses. They worry about lawsuits and competition. Licenses stop lawsuits and prevent competition.

So, in the end, I think EA got caught up in the whirlwind of the O'Bannon notion that the NCAA owes the players compensation. The casualty is this video game series, and, really, any major college football video game project.

[RainMaker]

Originally Posted by Solecismic

The Lanham Act was carefully crafted to walk this line. Why isn't it used here? Lanham states that free speech rights override compensating people for becoming famous. As long as there's no question about endorsement, speech is permitted. As for damages under Lanham, the players would have to show financial damage from EA's work, which they can't. It's all very carefully outlined in Cardtoons v. MLBPA (http://cyber.law.harvard.edu/IPCoop/96card1.html) as well as a long and dry, but useful, analysis of the value of celebrity.

Keller wasn't suing under Lanham. It was a claim under California's Right to Publicity.

It is definitely tricky territory for what violates and what doesn't. But we do have a lot of precedent and many professional sports games license players likeness in their games. And I don't think EA bailed because of any other reason than they were going to lose. Having a former producer come in and tell the courts exactly what they were doing made it a tough case for them to win.

[Solecismic]

Federal Law trumps State Law. Cardtoons won because the courts said the Constitution trumped Oklahoma's Right to Publicity law (using Lanham as how the free speech/right to publicity line is drawn). So if this were a decision appealed to federal court (and one of the major reasons a federal court will hear a case is a question about state law infringing on a national right), that's the line of logic they'd use.

I don't know if EA would win (Cardtoons won because parody - even for commercial gain - was recognized specifically as protected speech in another case), but one of the reasons they might not pursue taking this out of California courts is a worry that the decision could affect their professional sports video game licenses. EA may feel $40 million is worth not asking that question.

Anyway, what I'm saying is that EA chose a particularly weak defense. Most of the "players" used in their game were not even recognizable, and CDC admitted freely that their use of player names and statistics made the players easily recognized. I've had these discussions with publishers, and a court recognition that video games can use player names, no bones about it, would change the product landscape for professional sports games. EA doesn't want that statement.

[JonInMiddleGA]

Originally Posted by Solecismic

CDM Sports v. MLBAM allowed fantasy sports games (Major League Baseball Advanced Media) - Wikipedia, the free encyclopedia. Names and statistics are part of the public domain. I don't worry about my product being deemed illegal because I don't claim endorsement (Lanham) and names and numbers alone aren't considered likenesses.

But this worries me a little. I think, as it applies to me, that any attempt to provide player avatars is risky. I also worry that the act of simulation might be risky. Even though a computer simulation is somewhat a bunch of "what ifs" seen through an awful lot of research and the broad brushstrokes of statistical interpretations. It's simply advanced use of names and statistics. I think there's a lot of art to it, but the courts may disagree.

This is the line that so many tabletop publishers have to walk, and at this point I suppose also be increasingly concerned about.

[TroyF]

Originally Posted by RainMaker

Might come as a shock, but people don't work for free for your personal enjoyment. They should be compensated (even if it's a small amount) for their likeness being used which obviously adds to the game. Just as anyone should be compensated for their likeness being used in a game, movie, TV, ad, or whatever.

As for who gets the money, that'll be up to negotiations. My guess is most college athletes would sign on to a licensing group that would decide how the money is doled out in advance. Maybe it's $200 per player, maybe it's dependent on other factors. And of course players like Johnny Manziel can negotiate his own deal if he feels like it.

This isn't some new territory. Professional sports have done this in licensing for decades. The NCAA can do the same thing, there is enough money at play. Still don't know why people are so jealous of these kids earning their market value.

Might come as a shock to you, but these kids do get paid. 4 years, sometimes 5 of a free college education. As someone who worked my way through college on a graveyard shift and student loans, I kind of have an idea of what that is worth.

There are VERY few kids whose merchandise earns the kind of scratch the NFL guys do. I have been a proponent of the kids getting some sort of small stipend. The NFL has 32 teams to license at 53 players each. There are 120 teamsof 80 players each in the NCAA.

Go take a vote of the current crop of college football players and ask them if they would rather have an NCAA game they will be in for eternity or no game and I can tell you from personal exp, a majority would rather have the game.

These guys all fail to realize that only a few of them win with these lawsuits, the majority see no benefit or could even be hurt by this. Ex: what if the ncaa decided partial scholarships in basketball and football to pay for this?

[sterlingice]

Originally Posted by Izulde

That would depend on how far-reaching the ruling is. I could see where they limit any win by the plantiffs to the revenue sports of football and men's basketball.

If Title IX doesn't apply solely to revenue generating sports then how does this?

SI

[sterlingice]

Originally Posted by TroyF

Might come as a shock to you, but these kids do get paid. 4 years, sometimes 5 of a free college education. As someone who worked my way through college on a graveyard shift and student loans, I kind of have an idea of what that is worth.

There are VERY few kids whose merchandise earns the kind of scratch the NFL guys do. I have been a proponent of the kids getting some sort of small stipend. The NFL has 32 teams to license at 53 players each. There are 120 teamsof 80 players each in the NCAA.

Go take a vote of the current crop of college football players and ask them if they would rather have an NCAA game they will be in for eternity or no game and I can tell you from personal exp, a majority would rather have the game.

These guys all fail to realize that only a few of them win with these lawsuits, the majority see no benefit or could even be hurt by this. Ex: what if the ncaa decided partial scholarships in basketball and football to pay for this?

Don't worry, TroyF, it won't be basketball and football partial scholarships- it will be partial scholarships in non-revenue generating sports, especially for men's sports (because touching the Title IX money is a good way to end you in court).

SI

[General Mike]

Originally Posted by sterlingice

Don't worry, TroyF, it won't be basketball and football partial scholarships- it will be partial scholarships in non-revenue generating sports, especially for men's sports (because touching the Title IX money is a good way to end you in court).

SI

Yeah, but those sports already are partial scholarship based. Very few baseball players are getting full rides. Same with wrestling. I don't know enough about lacrosse, but I'm guessing it's the same boat.

[JPhillips]

Originally Posted by sterlingice

Don't worry, TroyF, it won't be basketball and football partial scholarships- it will be partial scholarships in non-revenue generating sports, especially for men's sports (because touching the Title IX money is a good way to end you in court).

SI

Roughly half of D1 football programs don't even break even.

[RainMaker]

Originally Posted by TroyF

Might come as a shock to you, but these kids do get paid. 4 years, sometimes 5 of a free college education. As someone who worked my way through college on a graveyard shift and student loans, I kind of have an idea of what that is worth.

Just because you pay someone something doesn't mean you can fix prices in a market. Cartels are illegal in this country, even if they pay their employees something. Your argument is completely irrelevant to the case.

[RainMaker]

Originally Posted by sterlingice

If Title IX doesn't apply solely to revenue generating sports then how does this?

I don't know why Title IX would come into play here. It's letting them earn money from external sources. It's not the school paying them licensing fees, it's EA or whatever other company.

And Title IX could be worked on to fix any issues. Aspects of it are outdated as is so it'd a good time to update it.

[molson]

Originally Posted by RainMaker

And Title IX could be worked on to fix any issues. Aspects of it are outdated as is so it'd a good time to update it.

And depending on the judge and appellate panels they get, Title IX is ultimately going to be interpreted in a results-oriented manner. This is all new stuff, new issues, so there's no clearly expressed legislative intent with regard to these issues, and not a lot of firm precedent directly on point. I don't think Title IX necessarily precludes very much.

[Young Drachma]

Originally Posted by TroyF

Might come as a shock to you, but these kids do get paid. 4 years, sometimes 5 of a free college education. As someone who worked my way through college on a graveyard shift and student loans, I kind of have an idea of what that is worth.

So do PhD students and students on full scholarship for academics or marching band or cheerleading. The difference is, they all can profit from their likeness or anything else they do while a student at the university. Student-athletes cannot.

[Solecismic]

That's why we're on the verge of a major change in how college football works. Right now, if you divide up the money realistically, you have a handful of Globetrotters (Texas, Ohio State, Michigan, Oklahoma...) and hundreds of Washington Generals.

When it all sorts itself out, there will be a 64-team league with skill sets approximately variant like Major League Baseball. Those players are essentially one step below the pros, and the total compensation package will be roughly equivalent to a AAA baseball player. Given their time commitment and required professionalism, I think that's fair.

We've moved from the Yale/Harvard image of a "student-athlete" to what's really a job. The players should be compensated. Whether college football maintains its popularity after these pretenses are dropped is an exercise for experts far better than I.

[Izulde]

Originally Posted by Solecismic

Whether college football maintains its popularity after these pretenses are dropped is an exercise for experts far better than I.

I think there would be something of a decrease in popularity, but not all that large. My guess would be that it'd be a case similar to a lot of current students/alumni at Division 3 schools, where they support the flagship Division 1 program.

What I would find more interesting is how the loss of major college football would affect those other schools in terms of admissions and alumni donations. I also wonder if college basketball then becomes more competitive and popular as a result.

[Mizzou B-ball fan]

Dismissal motion by the NCAA is thrown out. Now we wait to see if it's certified as a class action lawsuit.

Judge denies motion to dismiss Ed O'Bannon's NCAA lawsuit - ESPN

[molson]

O'Bannon gets past the summary judgment stage and it's now set for trial in June

The judge was very skeptical of the NCAA's arguments generally:

"the NCAA has argued in filings that First Amendment protections regarding the broadcast of newsworthy events -- i.e. a college football game -- preclude schools from having to seek permission from athletes for their appearance in game broadcasts. Wilken questioned why the NCAA can then sell exclusive game rights to a network like CBS while at the same time arguing the events are of public domain.

Wilken also expressed skepticism regarding three of the NCAA's five pro-competitive justifications for why its no-pay rule does not violate antitrust laws. Most notably, she expressed a "problem" with the notion that sharing revenue with the athletes would negatively impact competitive balance within college sports. 'Maybe there's a less restrictive alternative?' she wondered. 'Maybe you could enforce more competitive balance by having coaches' salaries addressed.'

One of the NCAA's other justifications is protecting amateurism. Wilken largely skipped past the topic with a dismissive line: "I don't think amateurism is going to be a useful word here."

Judge allows O'Bannon v. NCAA to proceed to trial - College Football - Stewart Mandel - SI.com

[JonInMiddleGA]

Originally Posted by molson

One of the NCAA's other justifications is protecting amateurism. Wilken largely skipped past the topic with a dismissive line: "I don't think amateurism is going to be a useful word here."

Then they've found a worthless idiot of a judge to hear it (gosh, there's a shocker)

Perfect for the villainous plaintiff, bad for the future of college athletics.

O'Bannon is as good an example of a DIAF candidate as I've come across in quite a while.

[Chief Rum]

DIAF?

[chadritt]

Die In A Fire

[JonInMiddleGA]

Originally Posted by chadritt

Die In A Fire

A phrase/acronym which, oddly enough, I learned here at the FOFC.

edit to add: Hence my use of it here, but very rarely anywhere else.

[Solecismic]

Seems like good news for the NCAA. The judge is basically giving them a free appeal on the grounds of bias if they lose. She's saying, without any doubt about it, that she has already decided the case.

[JonInMiddleGA]

Originally Posted by Solecismic

She's saying, without any doubt about it, that she has already decided the case.

Dangerous thing ... you & I are pretty much in complete agreement on something

[Mizzou B-ball fan]

Another lawsuit challenging the current setup/compensation of the NCAA...........

The NCAA-Killing Lawsuit Might Finally Be Here

[Logan]

This type of stuff doesn't help:

Ohio State AD Gene Smith's $18,000 bonus for Logan Stieber's NCAA wrestling title doesn't seem to go over very well | cleveland.com

[Logan]

Big news. Appeal coming for sure.

Northwestern players win case with NLRB, college athletes one step closer to union - FanSided - Sports News, Entertainment, Lifestyle & Technology - 240+ Sites

[molson]

This is starting to seem like something the NCAA and the universities could have nipped in the bud years ago by applying common sense, but now, will completely blow up in their face. Or at least, I hope that happens.

[Logan]

Originally Posted by molson

This is starting to seem like something the NCAA and the universities could have nipped in the bud years ago by applying common sense, but now, will completely blow up in their face. Or at least, I hope that happens.

Exactly. That's what Bill Connelly of SB Nation just said on Twitter: "Make no mistake: the unforeseen/unintended consequences of potential college unions will be epic and incredibly annoying...…but the NCAA has had like 117,342 opportunities to avoid something like this and refused."

PDF of the decision:

http://www.espn.go.com/pdf/2014/0326...ondecision.PDF

[BillJasper]

Originally Posted by molson

This is starting to seem like something the NCAA and the universities could have nipped in the bud years ago by applying common sense, but now, will completely blow up in their face. Or at least, I hope that happens.

We see this time and again with business entities. They stick their fingers in their ears and scream "La! La! La! I can't hear you!" until it blows up it their faces.

[Solecismic]

I guess I'm not certain why this is a game-changer. It probably hurts private colleges in that it only applies to them. Maybe this will wind up removing schools like Duke, Vanderbilt, Northwestern, Stanford and USC from major conferences. That would be a blow.

So, now these players have the right to strike without losing their scholarships. Strike over what, exactly? The NCAA rules for labor limits are lower than what a union would demand. They have the right to refuse to participate in dangerous drills, and bring in people to investigate the workplace. Well, maybe that's a good thing for everyone. College athletes train hard. Better standards would help.

I guess that leaves money. They could strike to insist upon a salary. But the schools are hamstrung by NCAA rules, so all that amounts to is a refusal to play without losing their scholarships. And that's what would get the school removed from a conference. Colter has said this is about the money.

I think this matters more to lawyers than it does to fans. We all know major college sports are based on hypocrisy. But we still enjoy the pretense.

We've seen unions in sports before - we have them in all of the major sports. What they can't do, and won't do, is change the fact that coaches decide who plays and who doesn't. So I'm not sure what changes here. The issue of whether the NCAA will allow stipends over the value of a scholarship seems entirely separate.

[Logan]

Originally Posted by Solecismic

I guess that leaves money. They could strike to insist upon a salary. But the schools are hamstrung by NCAA rules, so all that amounts to is a refusal to play without losing their scholarships. And that's what would get the school removed from a conference. Colter has said this is about the money.

Health benefits and scholarship guarantees in the event of injury are what's being sought primarily, not straight cash.

[Buccaneer]

I am virulently anti-union but I see this as a way to reduce the mockery and charade of student-athletes. Would rather have more seats filled by students there for academics.

[WVUFAN]

Wouldn't it be better for the major conferences to simply split from the NCAA and strike out on their own? It seems the schools are paying for the actions of the NCAA.

[molson]

Originally Posted by WVUFAN

Wouldn't it be better for the major conferences to simply split from the NCAA and strike out on their own? It seems the schools are paying for the actions of the NCAA.

Eventually maybe, but I think the involvement of the NCAA makes it easier for the universities to pretend that the athletes are students. If that whole system blew up (which I really don't see ever happening, there will be negotiations and a settlement eventually), then maybe it'd make more sense for those schools to just run separate private entities that do sports and hire athletes.

[Solecismic]

Originally Posted by Logan

Health benefits and scholarship guarantees in the event of injury are what's being sought primarily, not straight cash.

Like any benefit, insurance costs money and has a monetary value. The NCAA isn't going to allow that for private schools and not similar compensation for public school athletes.

The NCAA will have to adjust, regardless, on the health issue - at least to have something in place for long-term debilitating injuries.

I thought schools already honored scholarships in these instances, though I suppose there's some discretion in the matter. I doubt anyone would have too much problem with the NCAA codifying this if it isn't already, though there would have to be some sort of certification that the injury prohibited play.

Colter also mentioned "full" cost of attendance, which is a cash issue. The NCAA has been unable to move on this because it would create a scenario where minor sports would be dropped at many universities and it would also create a divide between the big five conferences and the rest of the NCAA. He also wants the right to negotiate "likenesses" as the O'Bannon suit wants. Problem is, as we've seen, not even EA wants to pay that much for the rights. And, finally, he wants the NCAA's transfer rules scrapped, which has very little value within just the private-school world. Then there's the standard rage against the machine rhetoric you'd expect.

But, yeah, this seems to be mostly a money thing, and some of it is reasonable and some of it isn't. A lot of people want the 0/3 baseball rule in place for football and basketball. Basketball is better able to absorb this, because there's already a D-league and the college game already basically subsists on just the NCAA tournament. The NFL doesn't want to create a D-league because it takes a lot longer to develop great football players at many positions. And it's a lot more expensive to run a minor-league football franchise with no one watching or caring.

[dzilla77]

One of the consequences of unionizing is having to pay union dues. I doubt any organization will represent the players for free. Many athletes already are short on cash and this won't help. I also don't think they can negotiate with the universities or NCAA to pay those dues due to labor laws.

[Mizzou B-ball fan]

http://www.usatoday.com/story/sports...trial/9500127/

Regardless of outcome in O'Bannon lawsuit, NCAA has to change - CBSSports.com

[Kodos]

Proposed $40 million settlement set for players - Yahoo Sports

One step closer to getting the NCAA series back?

[DanGarion]

Congratulations on your $400 per person Obannon and Keller.

[BillJasper]

Originally Posted by DanGarion

Congratulations on your $400 per person Obannon and Keller.

Now they can buy the next six copies of NCAA Football each. Oh, wait...

[DanGarion]

Originally Posted by BillJasper

Now they can buy the next six copies of NCAA Football each. Oh, wait...

Haha.. that was actually the second part to my joke I decided to wait to say.

[flounder]

I'm assuming that $40 million is before legal fees and expenses, which the article says are ~ $35 million. So more like $50 per person.

[Blackadar]

Originally Posted by DanGarion

Congratulations on your $400 per person Obannon and Keller.

They get $15,000 each per the article.

[Sweed]

Originally Posted by dzilla77

One of the consequences of unionizing is having to pay union dues. I doubt any organization will represent the players for free. Many athletes already are short on cash and this won't help. I also don't think they can negotiate with the universities or NCAA to pay those dues due to labor laws.

I'm no lawyer or anything close but are these rulings that make unionizing possible also making the players employees of the university?

Well if they are employees shouldn't they also be paying taxes on the value of their scholarships? They are employees in essence being paid to play so wouldn't that be taxable income?

I would think they have to declare the $15 grand as income why not their scholarship?

Just a thought in the back of my mind, am I way off base?

[NobodyHere]

Originally Posted by Sweed

I'm no lawyer or anything close but are these rulings that make unionizing possible also making the players employees of the university?

Well if they are employees shouldn't they also be paying taxes on the value of their scholarships? They are employees in essence being paid to play so wouldn't that be taxable income?

I would think they have to declare the $15 grand as income why not their scholarship?

Just a thought in the back of my mind, am I way off base?

I'm no lawyer either but I think maybe you got it backwards? I thought the National Labor Relations Board decided that the players were eligible to unionize because they received benefits from the school.

Also I think benefits is key here as opposed to salary. I don't think that scholarships are taxable.

[dawgfan]

Originally Posted by NobodyHere

I'm no lawyer either but I think maybe you got it backwards? I thought the National Labor Relations Board decided that the players were eligible to unionize because they received benefits from the school.

Also I think benefits is key here as opposed to salary. I don't think that scholarships are taxable.

The ruling was narrow - it involved private schools in Illinois. That ruling may result in private schools in other states from also being subject to unionization, but it would be a bit of a leap for it to apply to public schools.

[cartman]

The NCAA has now settled as well.

NCAA reaches $20M settlement of video game claims - ESPN

[DanGarion]

Well there is another $100 bucks. These guys are rolling in the dough now!