It all comes down to the NCAA Bylaws and the contract that the players signed to play college sports. If you look at the bylaws, it comes down to this:
http://www.ncaapublications.com/Uplo...d6827c16bc.pdf
12.5 PRO MOTIONAL ACTIVITIES
12.5.1 Permissible.
12.5.1.1 Institutional, Charitable, Education or Nonprofit Promotions. A member institution or recognized
entity thereof (e.g., fraternity, sorority or student government organization), a member conference or
a noninstitutional charitable, educational or nonprofit agency may use a student-athlete’s name, picture or appearance
to support its charitable or educational activities or to support activities considered incidental to the
student-athlete’s participation in intercollegiate athletics, provided the following conditions are met: (Revised:
1/11/89, 1/10/91, 1/10/92)
(a) The student-athlete receives written approval to participate from the director of athletics (or his or her
designee who may not be a coaching staff member), subject to the limitations on participants in such
activities as set forth in Bylaw 17; (Revised: 1/11/89, 4/26/01)
(b) The specific activity or project in which the student-athlete participates does not involve cosponsorship,
advertisement or promotion by a commercial agency other than through the reproduction of the sponsoring
company’s officially registered regular trademark or logo on printed materials such as pictures,
posters or calendars. The company’s emblem, name, address, telephone number and Web site address
may be included with the trademark or logo. Personal names, messages and slogans (other than an officially
registered trademark) are prohibited; (Revised: 1/11/89, 1/10/91, 5/6/08)
(c) The name or picture of a student-athlete with remaining eligibility may not appear on an institution’s
printed promotional item (e.g., poster, calendar) that includes a reproduction of a product with which
a commercial entity is associated if the commercial entity’s officially registered regular trademark or logo
also appears on the item; (Adopted: 11/12/97)
(d) The student-athlete does not miss class; (Revised: 1/11/89)
(e) All moneys derived from the activity or project go directly to the member institution, member conference
or the charitable, educational or nonprofit agency; (Revised: 1/11/89, 1/10/92)
(f ) The student-athlete may accept actual and necessary expenses from the member institution, member
conference or the charitable, educational or nonprofit agency related to participation in such activity;
(Revised: 1/11/89, 1/10/92, 4/28/05)
(g) The student-athlete’s name, picture or appearance is not used to promote the commercial ventures of any
nonprofit agency; (Adopted: 1/10/92)
(h) Any commercial items with names, likenesses or pictures of multiple student-athletes (other than highlight
films or media guides per Bylaw 12.5.1.7) may be sold only at the member institution at which the
student-athletes are enrolled, institutionally controlled (owned and operated) outlets or outlets controlled
by the charitable or educational organization (e.g., location of the charitable or educational organization,
site of charitable event during the event). Items that include an individual student-athlete’s name, picture
or likeness (e.g., name on jersey, name or likeness on a bobble-head doll), other than informational items
(e.g., media guide, schedule cards, institutional publications), may not be sold; and (Adopted: 1/16/93,
Revised: 1/9/96, 4/27/06 effective 8/1/06)
(i) The student-athlete and an authorized representative of the charitable, educational or nonprofit agency
sign a release statement ensuring that the student-athlete’s name, image or appearance is used in a manner
consistent with the requirements of this section. (Revised: 1/11/89, 1/10/92)
IMO... this is a touchy one... I think it comes down to the meaning and extent of the concept of "likeness". The fact is that college athletes will not be compensated no matter what, in order to maintain amateur status. This includes Keller who would likely not be compensated because recieving compensation after graduation based on collegiate athletics is expressly prohibited in the bylaws, which Keller signed, and it is a part that would not be voided regardless of outcome in the trial. I think that would hold true in this ex post facto case, especially since the violation (if determined to be so) would include all of the players in the current game (2010), some of which will not graduate until 2014. Aside from that, not all of the profit derived can be argued to be based on player likeness. Much of it is from the university, their logos/mascots, the game of football itself, etc. Additionally, not all players bring an equal appeal. Some more than others, and there are other athletes who were not included, or included but with errors (jersey number, race). It is impossible to determine the magnitude of the effect or to accurately attribute it to each individual.
IMO.. I don't know anything, but.. I see that the only thing that could change here is that NCAA Football video games would be forced to randomize the players a bit. Stop doing what they are doing. Compensation for NCAA athletes will not be the result of this or any other lawsuit IMO. What that means to EA Sports, though, is up for debate.
Do jersey numbers alone constitute likeness? What about race? What about if you add in home town? What if you have ht/wt in? Or out? What combination of the above factors constitute likeness, if any of them?