Sam Keller sues EA Sports and the NCAA

[Eaglesfan27]

Interesting issue that I'm surprised no one else has tried to sue over earlier:

San Francisco - The Snitch - Jocks Vs. Nerds: Former College QB Sues NCAA, Videogame Company Over Use of Athletes' Names and Likenesses

[Lonnie]

Kinda shocked this hasn't come up before myself. They do model them pretty accurately.

More interesting was the 9th Annual Masturbate-A-Thon link on the right.

[Tigercat]

Yea, EA sports really made a lot of money off of having Sam Keller's wristband accurately portrayed.

What if they scrambled the numbers, skin tone, ect? Would the next QB that can't make money in the NFL sue because NCAA's Throw Power ratings correspond to his arm strength?

[Eaglesfan27]

A PDF of the suit. It makes some compelling points:

http://www.courthousenews.com/2009/0...tronicArts.pdf

[Grammaticus]

Originally Posted by Lonnie

Kinda shocked this hasn't come up before myself. They do model them pretty accurately.

More interesting was the 9th Annual Masturbate-A-Thon link on the right.

I didn't get that link on my web page. Must be targeted advertising

[panerd]

Originally Posted by Tigercat

Yea, EA sports really made a lot of money off of having Sam Keller's wristband accurately portrayed.

What if they scrambled the numbers, skin tone, ect? Would the next QB that can't make money in the NFL sue because NCAA's Throw Power ratings correspond to his arm strength?

I see what your’e saying and agree that nobody bought the game specifically for the video version of Keller but I also agree completely with Keller's lawsuit. I buy the game because it portrays current college football pretty accurately and my team's strengths and weaknesses are always the same as the real team. Completely random teams and players don't interest me at all in a video game. A text sim is a different story but I hated the old school video games where the teams were all equal or even worse completely random. So the only reason they make any money is by using the real players which directly contradicts their own mission statement about the sanctity of amateur athletics.

[Tigercat]

I just don't think they can win this. Since all players facial features are built on a VERY limited number of templates, and the body builds are all built on a VERY limited number of sizes available.

How can you ever show that such players are truly representing real life likenesses? Especially when there are no true individual likenesses in the game. Sounds a lot like parody to me, maybe even textbook.

[sooner333]

I don't know what the precident is in courts for "likeness" and I don't really want to learn it at this point because I'm in law finals and the last thing I want to do is look up a point of law I'm not going to be responsible for (taking the night off because of a week break between finals), but it would seem that likeness probably means more than a number in a game and abilities that may or may not reflect actual abilities in real life. But, EA pretty much has to admit that they basically model the player's ability and number after the player, but not their "likeness" in terms of what they look like.

It might depend if it's more like fantasy baseball (won by Yahoo) or pro games (where there's actually a likeness in the facial features, etc.)

[Logan]

Not saying whether this is right or wrong...

But wouldn't any damages received in a victorious lawsuit in essence mean that these guys were compensated for being a college football player, which would make them retroactively ineligible and force their teams to forfeit games and face additional penalties?

[Karlifornia]

Originally Posted by Lonnie

More interesting was the 9th Annual Masturbate-A-Thon link on the right.

I thought "Ha, well that's mildly interesting.."then I got to the 3rd and 4th pictures in the slideshow and was like "whoa!"

[Pumpy Tudors]

Originally Posted by Logan

Not saying whether this is right or wrong...

But wouldn't any damages received in a victorious lawsuit in essence mean that these guys were compensated for being a college football player, which would make them retroactively ineligible and force their teams to forfeit games and face additional penalties?

I was thinking exactly this.

[sterlingice]

Originally Posted by Grammaticus

I didn't get that link on my web page. Must be targeted advertising

This post didn't get enough love

SI

[dawgfan]

The "likenesses" part of the suit has merit. The rest of it does not.

[RainMaker]

Didn't Jim Brown sue over this?

[Karlifornia]

Originally Posted by RainMaker

Didn't Jim Brown sue over this?

Yeah, but the lawsuit was dropped after "Crack House: The Video Game" was shelved.

[Julio Riddols]

Why the hell wouldn't you want to be in a football video game? I could give a shit if they paid me or not, it would just be fun to hear my last name actually be pronounced by the announcer instead of "Number 3". And seriously... Wtf harm has it done? Why would someone take the time to do this?

I could understand if they were using his likeness as the victim of something in a game.. But a football sim? Seriously?

There are no Dresselhaus family members in pro sports, but if I happened to go to college and miraculously walk-on to the football team, I would want to see me on the roster.

[Groundhog]

Originally Posted by Julio Riddols

Why the hell wouldn't you want to be in a football video game? I could give a shit if they paid me or not, it would just be fun to hear my last name actually be pronounced by the announcer instead of "Number 3". And seriously... Wtf harm has it done? Why would someone take the time to do this?

I could understand if they were using his likeness as the victim of something in a game.. But a football sim? Seriously?

There are no Dresselhaus family members in pro sports, but if I happened to go to college and miraculously walk-on to the football team, I would want to see me on the roster.

$

[Apathetic Lurker]

Originally Posted by Julio Riddols

Why the hell wouldn't you want to be in a football video game? I could give a shit if they paid me or not, it would just be fun to hear my last name actually be pronounced by the announcer instead of "Number 3". And seriously... Wtf harm has it done? Why would someone take the time to do this?

I could understand if they were using his likeness as the victim of something in a game.. But a football sim? Seriously?

There are no Dresselhaus family members in pro sports, but if I happened to go to college and miraculously walk-on to the football team, I would want to see me on the roster.

buy a copy and insert yourself in it..problem solved

[Ajaxab]

Originally Posted by Eaglesfan27

A PDF of the suit. It makes some compelling points:

+1

There definitely seem to be some valid points being made here. But couldn't the same arguments be made about television broadcasts where the NCAA is making money off of player likenesses on television? Whether it's commercials or the actual broadcasts themselves, player images are on tv and players receive no direct compensation for their appearance. The same principle would seem to apply here. Keller should be going after the NCAA and not EA.

[Logan]

I would assume that whatever is signed when every player's scholarship is renewed each year has language in it that basically says, "Whatever we can do to make money off you, we can do, and by accepting this scholarship you are allowing us to do so."

Every team uses players in their own promotion materials...they don't get paid for that. And that's pictures, faces, names...not a computer-generated likeness.

The more I think about it, the less chance this has.

[Sgran]

I just enjoy watching the cockroaches scurry every time the light is turned on.

[Rich1033]

Keller was a joke in college that did nothing but cause problems. That has nothing to do with this, just wanted to say it.

This will be interesting, but I just cant see this going very far. I would expect this to fully play out as a settlement would seem to just encourage this to happen again in the future.

As for a player being ruled retroactively ineligible, I dont believe there is any rule prohibiting a player from receiving benefits from college after they have used up their eligibility. That would be impossible to enforce.

[gstelmack]

The PDF is definitely an interesting read, pointing out all the prohibitions against using player likenesses by the NCAA, and then that the NCAA has to approve the EA titles before shipping. I think the bigger beef here will be with the NCAA vs EA, in that the argument is the NCAA should have stopped them from matching so much biographical and physical data and not approved the titles, given the NCAA's own stance and paperwork for the players. Should be interesting to follow...

[bignej]

Didn't EA take out the recordings of all the NCAA player names for next year? They may have known this was coming.

[BYU 14]

Originally Posted by Rich1033

Keller was a joke in college that did nothing but cause problems. That has nothing to do with this, just wanted to say it.

Thanks for saying it. He was an overrated prima donna at ASU and faired no better at Nebraska. Sorry your free education and god knows what other side benefits you received weren't enough for you. Can't see this one playing out in his favor at all.

[Tekneek]

Goes to show how long it has been since I have played a NCAA football arcade style game. Last time I played one, there were no names or likenesses. Just a bunch of seemingly random guys in uniforms of the right colors and numbers.

[RainMaker]

Just to play devil's advocate here, but EA is making money off these guys. Maybe not necessarily Sam Keller, but guys like Tim Tebow. People are buying this game to play as those guys. If each player was randomly generated, it would take a ton of lure out of the game.

I'm not a law guy so I have no clue how these cases go, but lets not fool ourselves into thinking EA isn't making money off these players.

[BYU 14]

Originally Posted by RainMaker

Just to play devil's advocate here, but EA is making money off these guys. Maybe not necessarily Sam Keller, but guys like Tim Tebow. People are buying this game to play as those guys. If each player was randomly generated, it would take a ton of lure out of the game.

I'm not a law guy so I have no clue how these cases go, but lets not fool ourselves into thinking EA isn't making money off these players.

They are making money for sure, but again it still all points back to the NCAA. They make money off license rights as well as dozens of other outlets that are more specific (I.E named players) than the game.

I really would like to know how all that money the NCAA makes is dispersed.

[kcchief19]

Originally Posted by RainMaker

Just to play devil's advocate here, but EA is making money off these guys. Maybe not necessarily Sam Keller, but guys like Tim Tebow. People are buying this game to play as those guys. If each player was randomly generated, it would take a ton of lure out of the game.

Devil's advocate right back -- ESPN makes a ton of money broadcasting the likeness of Tim Tebow in highlights. If they didn't have Tebow highlights, it would take a lure out of their broadcasts. Where do you draw the line for protecting your likeness?

What's in the game that would intrude upon Sam Keller's likeness? His height, weight, hometown, jersey number. Is your height, weight and hometown intellectual property? At first blush I would say no.

The players have ratings. That's pretty subjective. And again, what's the difference in what EA is doing in rating Sam Keller than say Rivals.com did in rating Sam Keller coming out of high school. Why doesn't Keller sue Rivals.com? Are your rated abilities intellectual property belonging to you? I would say no.

The only area where Keller might have an argument is that there is a graphical 3D representation of him in the game. Does that game character resemble Sam Keller physically? The next player I see in a game who actually resemembles the real person will be the first.

Combining all the elements, maybe Keller does have a case. I think you have to dismiss the name elements of the lawsuit. EA doesn't ship the game with real names, it's only done by fans for free. There's no money to be made there.

Ultimately the question is whether the information incluced in the game belongs to Sam Keller. The precedent of the MLB lawsuit over fantasy baseball would indicate to me now. This is slightly more involved since we're not just talking about names and statistics. But the precedent would seem to favor EA.

Frankly, this lawsuit has the potential to be a complete disaster for the players. If Keller goes through with this and loses, just consider how little control players would have over their likenesses. Without a legal precedent, there's generally a wide respect of the use of players' likenesses. If he loses, katy bar the door.

[Logan]

Seriously, does anyone know what would happen as far as eligibility if Keller or any other player actually won this suit?

[Grammaticus]

The NCAA can argue they by allowing companies like EA to release the game with reasonable models of college teams, it increases interest in the sport and the chance the players will be more marketable to pro teams.

[Young Drachma]

The game actually has all of their names programmed, as well.

[Young Drachma]

Originally Posted by Grammaticus

The NCAA can argue they by allowing companies like EA to release the game with reasonable models of college teams, it increases interest in the sport and the chance the players will be more marketable to pro teams.

It doesn't matter. The NCAA still makes money off of it and the players don't get a dime. And only a small fraction of kids in the NCAA make the NFL.

[gstelmack]

Originally Posted by kcchief19

What's in the game that would intrude upon Sam Keller's likeness? His height, weight, hometown, jersey number. Is your height, weight and hometown intellectual property? At first blush I would say no.

Did you read the PDF? It also includes special apparel (like wrist bands, shoulder pags, visor details, etc), including some very specific player-particular bits of uniform. They also point out that the models used in NCAA match the models that end up in Madden where they DO have the rights and ARE trying to match the players as close as possible. It goes well beyond height, weight, and hometown.

As I said, the PDF is very interesting reading, and a key point the suit makes is that the NCAA makes the players sign all kinds of documents about protecting their likenesses and not using them for profit, then does not protect those same rights when reviewing the NCAA game. It's at the very least an interesting legal claim.

[Eaglesfan27]

Originally Posted by Dark Cloud

The game actually has all of their names programmed, as well.

Yes, an important point in the case against EA. I've heard that this audio will be taken out of future versions starting with 2010.

Originally Posted by gstelmack

Did you read the PDF? It also includes special apparel (like wrist bands, shoulder pags, visor details, etc), including some very specific player-particular bits of uniform. They also point out that the models used in NCAA match the models that end up in Madden where they DO have the rights and ARE trying to match the players as close as possible. It goes well beyond height, weight, and hometown.

As I said, the PDF is very interesting reading, and a key point the suit makes is that the NCAA makes the players sign all kinds of documents about protecting their likenesses and not using them for profit, then does not protect those same rights when reviewing the NCAA game. It's at the very least an interesting legal claim.

Absolutely. The PDF is very interesting and makes some good points about how detailed the players are modeled with the apparel/accessories. I could see that being changed in future versions as well. Also, this suit covers multiple sports, not just football.

[Tekneek]

The NCAA is a scam. A massive enterprise bringing in tons of revenue based on the performance of players who have to walk a fine line to prevent losing their eligibility to even participate in these sports. I am curious how much "profit" is made off of each player, after calculating the expenses involved in scholarships, facilities, coaching/training staff, etc.

[Tigercat]

Originally Posted by Eaglesfan27

Yes, an important point in the case against EA. I've heard that this audio will be taken out of future versions starting with 2010.

They program in extra names too, there was one year where I know my last name was "in the game" but no college players then (or since for that matter) possessed my last name.

The case may be interesting, but having a multitude of last names and first names stored separately in the game, including those for most college players, isn't enough to pass the litmus test of having an individual's likeness stored and used in the game.

[Drake]

Originally Posted by Logan

Not saying whether this is right or wrong...

But wouldn't any damages received in a victorious lawsuit in essence mean that these guys were compensated for being a college football player, which would make them retroactively ineligible and force their teams to forfeit games and face additional penalties?

By this logic, couldn't it also be said that players drafted by the NFL and paid to play professional football are being compensated for work they did as college football players (thus, being drafted)? They'd also be ineligible and their teams subsequently forfeit games.

[digamma]

Originally Posted by Tekneek

The NCAA is a scam. A massive enterprise bringing in tons of revenue based on the performance of players who have to walk a fine line to prevent losing their eligibility to even participate in these sports. I am curious how much "profit" is made off of each player, after calculating the expenses involved in scholarships, facilities, coaching/training staff, etc.

The NCAA as an organization made just over $20M in 2008 based on revenues of about $633M and expenses of almost $613M. The vast majority (86%) of the NCAA's revenue comes from television and marketing contracts. Distributions to conferences and schools account for most expenses.

[kcchief19]

Originally Posted by gstelmack

Did you read the PDF? It also includes special apparel (like wrist bands, shoulder pags, visor details, etc), including some very specific player-particular bits of uniform. They also point out that the models used in NCAA match the models that end up in Madden where they DO have the rights and ARE trying to match the players as close as possible. It goes well beyond height, weight, and hometown.

I did read the PDF. My question is relates to essentially whether or not you have a intellectual property claim to your biographical data. It would seem that most of the "information" included in the game would be public information.

For example, let's say I'm Rivals.com. I already list your stats, your scout ratings and your physical details such as height and weight. I also include personal data such as your birthday and hometown. Maybe I really want to be thorough and I specific your equipment, such as whether you wear a blue Nike wristband. What of that information is information you own that no one else can use? That is generally public information. I can't copyright my birthday or prevent anyone from publishing a description of how I style my hair or what color sunglasses I wear.

I do think it's a separate question of whether a reasonable computer-graphic representation of you is your likeness. That's a fair question for the court to decide. Like I said before, the next time I see a guy in an EA college game that actually looks exactly like the real guy will be the first time. The guy at QB for Missouri may have Chase Daniel's biographical data and number, but he doesn't actually look like Chase Daniel.

It will be interesting to see EA's response. They aren't idiots -- they have to have prepared a response for this for years. I doubt they started using this information in the first place without preparing for the day they would have to defend the practice.

[kcchief19]

Originally Posted by Dark Cloud

The game actually has all of their names programmed, as well.

There are plenty of non-players names programmed as well for the audio. Or are you reference the roster file? The roster file doesn't have their names -- that's a third-party application, which granted EA allows user to download.

[RainMaker]

Originally Posted by kcchief19

I did read the PDF. My question is relates to essentially whether or not you have a intellectual property claim to your biographical data. It would seem that most of the "information" included in the game would be public information.

For example, let's say I'm Rivals.com. I already list your stats, your scout ratings and your physical details such as height and weight. I also include personal data such as your birthday and hometown. Maybe I really want to be thorough and I specific your equipment, such as whether you wear a blue Nike wristband. What of that information is information you own that no one else can use? That is generally public information. I can't copyright my birthday or prevent anyone from publishing a description of how I style my hair or what color sunglasses I wear.

I do think it's a separate question of whether a reasonable computer-graphic representation of you is your likeness. That's a fair question for the court to decide. Like I said before, the next time I see a guy in an EA college game that actually looks exactly like the real guy will be the first time. The guy at QB for Missouri may have Chase Daniel's biographical data and number, but he doesn't actually look like Chase Daniel.

It will be interesting to see EA's response. They aren't idiots -- they have to have prepared a response for this for years. I doubt they started using this information in the first place without preparing for the day they would have to defend the practice.

I think it's a real tricky situation. I could honestly see both sides of the argument. Lets say you made a kids game that involved animals. You made the main character look exactly like the crocodile hunter down to everything he wore. You hire a voice actor who can do his voice perfectly. You call him something generic but allow people to edit his name. When does it turn into using their likeness to make a profit?

[gstelmack]

Originally Posted by kcchief19

I did read the PDF. My question is relates to essentially whether or not you have a intellectual property claim to your biographical data. It would seem that most of the "information" included in the game would be public information.

Keep in mind that their primary beef is not with EA, it's with the NCAA for approving EA's doing it after the NCAA made the players sign agreements that precludes this sort of use. If this was a straight suit against EA, I think it would get thrown out, but they are going after the NCAA for condoning it.

[Eaglesfan27]

I doubt this is a coincidence. Apparently, NCAA 10 is going to ship with outdated rosters that will be much worse than previous years. There are reports that no freshman are on teams and seniors from last year are still with their teams:

NCAA Football Heading Down Generic Path | pastapadre.com

[WVUFAN]

Originally Posted by RainMaker

I think it's a real tricky situation. I could honestly see both sides of the argument. Lets say you made a kids game that involved animals. You made the main character look exactly like the crocodile hunter down to everything he wore. You hire a voice actor who can do his voice perfectly. You call him something generic but allow people to edit his name. When does it turn into using their likeness to make a profit?

They are being compensated, by a) Receiving a free college education, and b) Having the opportunity to play in the NFL, because the NFL required college sports experience, the fact that the NCAA/college is providing you that, free of charge, is compensation enough.

The Croc Hunter analogy doesn't fit at all. Sam Keller didn't have to play sports at ASU or Nebraska, he did so willingly under the idea that he could parley his time into a career in the NFL.

His "likeness" in a video game is no different than his likeness on an ESPN highlight -- ESPN, like EA, is benefiting financially, and Keller is benefiting by hightened exposure and a free education.

[Logan]

Originally Posted by Eaglesfan27

I doubt this is a coincidence. Apparently, NCAA 10 is going to ship with outdated rosters that will be much worse than previous years. There are reports that no freshman are on teams and seniors from last year are still with their teams:

NCAA Football Heading Down Generic Path | pastapadre.com

I'm confused...the Rutgers roster was posted with attributes/ratings and it definitely included the top freshmen.

[RomaGoth]

While I realize this is two completely different subjects, I will take this opportunity to slam EA. I gave up on that company a long time ago, when each year's version of Madden or NHL Hockey was just the same game with updated rosters and a few features that nobody wanted. I stopped playing their games years ago.

As for the lawsuit, nobody can convince that this is anything but a money grab by a guy who never made it to the big time.

Too bad, really.

[JonInMiddleGA]

After reading that PastaPadre link in detail, I'm not even sure whether it'll be worth picking up the copy I pre-ordered yesterday.

I mean, no freshmen on many of the teams? I thought that just meant no facsimiles of the new incoming freshman, but after reading the link in full, I gather what it means is that there are teams that simply don't have any freshmen on their roster period. And EA tells him those rosters are considered final. Or that's how I read it anyway.

If that's the case, seems like the game would ship in a pretty broken condition. Since I only play single player dynasty mode it seems like it might be too fubar'ed to be worth the time or cost.

[Atocep]

Originally Posted by RomaGoth

As for the lawsuit, nobody can convince that this is anything but a money grab by a guy who never made it to the big time.

Pretty much. There's been players speak out against Keller essentially saying everyone they know loves seeing themselves in the games and would rather have it that way than have fictional players in their place.

[Huckleberry]

Originally Posted by WVUFAN

They are being compensated, by a) Receiving a free college education, and b) Having the opportunity to play in the NFL, because the NFL required college sports experience, the fact that the NCAA/college is providing you that, free of charge, is compensation enough.

The Croc Hunter analogy doesn't fit at all. Sam Keller didn't have to play sports at ASU or Nebraska, he did so willingly under the idea that he could parley his time into a career in the NFL.

His "likeness" in a video game is no different than his likeness on an ESPN highlight -- ESPN, like EA, is benefiting financially, and Keller is benefiting by hightened exposure and a free education.

You're nuts if you think the free education is market value for every college football player. And that's what matters. As stated above, the real target of the suit is the NCAA's rule barring the players from reaching their own endorsement and marketing deals.

Originally Posted by Atocep

Pretty much. There's been players speak out against Keller essentially saying everyone they know loves seeing themselves in the games and would rather have it that way than have fictional players in their place.

Once again, the end goal of the suit is to bar the NCAA from banning players from reaching their own deals. Not to keep the video game companies from being able to use the likenesses. The point is that the NCAA gets the money from EA so that EA can use the NCAA information. But the players get jack even though their likenesses are why the game makes money.