NCAA Football 11 News Post

NCAA Sam Keller vs. EA Update (Patent Arcade)

06:18 PM - February 14, 2010 by Steve_OS

Patent Arcade has an update on the situation.

Quote:


	"In this round of motions, EA argued that Keller�s claims were barred by the First Amendment and other possible defenses under California law. As to EA�s First Amendment argument, the court stated that �[a] defendant may raise an affirmative defense that the challenged work is protected by the First Amendment inasmuch as it contains significant transformative elements or that the value of the work does not derive primarily from the celebrity�s fame. . . . The defense poses what is essentially a balancing test between the First Amendment and the right of publicity.� Slip. Op. at 6-7 (internal quotes and citations omitted). With this standard in mind, the court determined that �EA�s depiction of [Keller] in �NCAA Football� is not sufficiently transformative to bar his California right of publicity claims as a matter of law.� Slip. Op. at 9. In arriving at this conclusion, the court noted that the quarterback for ASU in the game shares many of Keller�s characteristics, as the in-game ASU quarterback wears Keller�s jersey number, has the same height and weight, and is purportedly from the same home state. Id."

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# 21 Legionnaire @ 02/23/10 09:39 AM

Quote:

Originally Posted by da ThRONe


	From what I understand just like pro-players sign there likeness away when they sign a NFL contract. A college kid signs those likenesses away for free when they sign those LOI's.

Well, I think there's a reason Madden has to have an agreement with the NFL Players Association. Because the NFL can't just give them the okay to use those players on their say-so.

Signing a contract with an NFL team doesn't mean they've signed away their likenesses, making them automatically open to being used by whoever happens to have a tangential business relationship with the NFL. Neither does agreeing to enroll in a college or join an athletic program necessarily give the school and its business partners the right to expect anything from you beyond the athletic and academic commitments you've made.

It's not unlike entering into a work relationship with a new employer. If I agree to come work at your company, you haven't cleverly locked me into some obligation to do whatever the hell you feel like having me do. No, you've offered me a specific job for which I've accepted a certain amount of pay in exchange for doing the responsibilities that fall under the domain of that position.

When a player accepts an athletic scholarship, he's agreeing to play for that program. The school can then sell tickets or TV rights for people to watch the kid fulfilling his obligation to play, and they can accept money in exchange for bringing the player (and his team) to a certain venue to play.

They can't strike extra deals on the side, pocketing money for enabling companies to create video games or novels or movie franchises or toys starring the kid's likeness. That's not part of the agreement.

And, yeah, the fact is most of these kids probably get a kick out of being in the game. So get them to agree, then. Before you use their likenesses. Not everything has to be so difficult.

# 22 marxshut @ 02/23/10 09:57 AM

Quote:

Originally Posted by elgreazy1


	Yes, but not every player who plays likes to have money made off of him without any benefit to the player. That's what Keller is arguing for. It's basically identity theft and the theif is making millions.

Exactly...

Like the rest of you here I like to play with players who are rated an play like their on field counter-parts. It certainly adds to the game for me.

However I'm not going to indict former players like Keller or O'Bannon in these lawsuits as greedy malcontents who didn't make it at the next level because there is a lot of validity behind their argument.

My alma mater Clemson University drew in $40.4 million in athletic department revenue in the 04-05 season. Student aid expense for those athletes that same period was $6.1 million. Football alone accounted for $22.6 million in revenue while expending $1.8 million in scholarships (this number excludes most of the donor contributions that are dispersed over all sports but the only reason people donate is for good football tickets).

Thus the return on a football scholarship to the University is over 1000%.

I'm not saying an education isn't a great reward for being a student-athlete, but its time to call a spade a spade. College Football a big time revenue machine for the BCS programs and its talent is grossly underpaid for its services. If these players could ever unionize or negotiate collectively as the NFL does, they would certainly get more for their services than a scholarship.

The idealist in me wouldn't mind seeing true student athletes back on the playing field, but then I remember why no one watches Harvard play Yale in football. That's because no one is interested in seeing average athletes play football. We all want the elite athletes to come to our school to glorify our football program and we really could care less if they attend a class or crack a book. As long as they perform on Saturday, we'll get them a degree or at least keep them eligible for 5 years as long as they can contribute to the program.

Don't think these guys generate money solely for the athletic department either. Clemson's applications for enrollment spiked in the late 80's when they were an annual football power. A publicized football program brings in revenue through the gates as well as through the university admissions office.

While my selfish desires to play a realistic video game make me want this lawsuit to fail, my sense of equality leads me to believe that Keller and all the others who support this money making machine deserve their fair share.

# 23 ODogg @ 02/23/10 10:31 AM

I'm not sure who is financing Keller but whoever it is, they better have a lot of cash because EA will just keep throwing motions and lawyers at this thing until it goes away. EA are no fools, they realize no one will want to buy NCAA without a Tim Tebow or Terrelle Pryor type likeness for their school. The whole idea someone said of an open roster with EA locker would work well for OS and the tech-savvy like us but most people don't know anything about that. Sales would plummet so far if they were forced to ship with random rosters that there would be no point in making NCAA football anymore.

So yeah, EA will do whatever it takes to make this go away and not kill off one of their money making annual titles. And I say, go get em EA!

# 24 thelasthurtknee @ 02/23/10 11:31 AM

im with you guys about kellar being a dick for doing this but hes not alone. the NFL has had alot of probs with for putting retired players in games without licenses.

here is my deal. ea pays a ton of money to the schools on the game. i know FSU got aroun 150,000 in royalties last year. there is no doubt that its kellar in the game just like all the other players are real counterparts. oh, and to the they should be thankful they are in a game or playing at a big school is BS. im a college scout and let me tell you that college athletes (at least in football) earn everything they get and should get more. my problem is really with ea and the universitys for not handling this the right way. the players(kellar) is right and just protecting himself.

like most of you if i was in the game i would care less about getting anything for it. but since kellar has no football future and im sure some lawyer is the driving force but he wants his piece. so yea most of you including myself would never even care and maybe feel honored but after 6 years of football at two universitys and no pro future no telling what you would do?

But Kellar is still a dick for trying to mess up my favorite game.

# 25 ODogg @ 02/23/10 12:59 PM

What about EA paying college players a small fee for their likeness after they are out of college?

# 26 loccdogg26 @ 02/23/10 02:18 PM

The lawsuit would have came out regardless. Keller was just the face of it. Rob Carey is the real dude.

# 27 da ThRONe @ 02/23/10 02:31 PM

Quote:

Originally Posted by Sting


	This has been the way it's worked for decades. It's not gonna change, and it shouldn't. Kid's get scholarships to play football. Period. You gonna start paying the college students in the classroom as well since they have the power to maybe invent something or uncover something that could generate money for the school? Of course not.

Students who take part in science research get paid. And nobody has a problem with it. The biggest problem with paying student athletes seem more about public perception than structure.

Im on the fense about this. On one hand a full ride to a major university isnt anything to sneeze at. Being in college on an athletic scholarship does not seem to equal being on an academic scholarship In both requirements and revenue generated.

# 28 ODogg @ 02/23/10 03:00 PM

You can tell you're thinking football when you spell fence as "fense" heh heh

# 29 da ThRONe @ 02/23/10 03:03 PM

Quote:

Originally Posted by ODogg


	You can tell you're thinking football when you spell fence as "fense" heh heh

Completely missed that.

# 30 ODogg @ 02/23/10 03:34 PM

i figured you were thinking offense/defense when you typed it!

# 31 marxshut @ 02/23/10 04:50 PM

Quote:

Originally Posted by Sting


	This has been the way it's worked for decades. It's not gonna change, and it shouldn't. Kid's get scholarships to play football. Period. You gonna start paying the college students in the classroom as well since they have the power to maybe invent something or uncover something that could generate money for the school? Of course not.

The money involved has not been this great for decades. Maybe for a few teams it was, but now all the BCS conference schools generate this kind of revenue through television contracts and BCS bowl payouts that are usually shared across the conference. Think colleges don't use this to generate revenue. Central Florida's recently constructed 45,000 seat stadium cost $55 million to build. This for a school that started Div 1 football in 1996. Universities realize the revenue stream and are doing all they can to capitalize on it.

You can stick your head in the sand and say it's not going to change, but that's like saying we're going to have sweatshop labor forever because the workers won't unionize. Eventually someone is going to realize the potential earnings for these kids out of HS and organize them into a group large enough to have some leverage. The NCAA will then be forced to pay athletes for their services or return to the model of the true "student athlete" where scholarships are doled out solely for academic merit.

I see this as the beginning of the paid college athlete. I'm not saying it will happen tomorrow, but certainly within the next decade.

# 32 ODogg @ 02/24/10 02:11 PM

Yeah good luck organizing a bunch of high school kids and their parents to demand money instead of, or in addition to, a free (and rather expensive) education and a chance at millions of dollars. The very nature of college ball is that all players going in feel they have a shot at millions of dollars so it'll never happen. Hinsight for players like Keller is 20/20. As others have said, if he was in the NFL making millions right now he'd not be involved in this suit.

And that my friends is the reason future students will never unionize, because each player feels as if in doing so they are potentially giving up millions of dollars in the NFL..and for many students who have nothing and have grown up in poverty, that'll never happen.

Also, two more words and I rest my case: Maurice Clarett

# 33 Legionnaire @ 02/24/10 02:54 PM

The kids will never organize. Decades of union-busting have left most people unschooled on the realities of unionization and collective bargaining. And even if they were halfway inclined to take up this kind of unionization effort, you're still talking about a bunch of 18 year-olds whose parents would quickly tell them to shut up and not jeopardize their free education. So that's not going to happen.

At any rate, you'd think EA/NCAA would have no problem putting a couple bucks in their pocket. I'm pretty sure student athletes already get a small allowance (intended for food, I'm sure). And I don't know what EA pays to be able to make these games, but it can't be much when you think about it (in terms of how many ways it would have to be split up if they cut the football players in on it).

Think about how popular the NFL is, yet how many years they existed in a situation where NFL players still made/make less than MLB/NHL/NBA players. Football rosters are just so big, that when you divide it up, it's less in each guy's pocket.

Iow if the NCAA decides tomorrow to share the wealth with the students appearing in EA's game, how much does that actually mean the players get? First, not all the money goes to the players, so there's an initial big split between the institutions and the players. Then further split that between 120 schools, and then split it again between 70 players per team.

I can't imagine it would be much after splitting it up. The players would probably only get what amounts to a little walking-around money in their pocket. Beer money, basically (though the NCAA would probably rather call it a "food allowance"). Though, I think for a bunch of teenagers not making any money, obviously it would be greatly appreciated.

It wouldn't constitute a breakdown in the system to put a couple extra bucks in the players' pocket. And it probably wouldn't even be hard for them to go player-to-player collecting consent to use them in these games entirely free of charge anyway. Why don't they do either of those things? Probably for no better reason than because doing those things now would be like admitting they were doing the wrong things before.

# 34 ODogg @ 02/24/10 03:52 PM

Exactly, what you said in your last paragraph Legionnare makes sense. Give the kids a small stipend for "food allowance" and call it a day. Not only would doing so be sensible and just but it would also preclude further lawsuits (so long as the NCAA makes it clear that by accepting the money the athlete surrenders all rights to their likeness to the NCAA for any outside deals - such as EA).

But as you say, in doing so it potentially opens them up for a lawsuit from past players. It's really a difficult situation for them to be in.

# 35 tarheelguy4736 @ 02/24/10 07:12 PM

We talked about this case in my Sports Law class. Eventhough Keller may win the case at the California state level, EA will more than likely take it to the Supreme Court and more than likely the Supreme Court will rule in favor of EA because there have been other cases just like this with the same argument Keller has. So more than likely the Supreme Court would go on precedent and rule in favor of EA. I think this will be a long drawn out case that will end with failure for Keller but I still think itll hurt EA's game designs in the future of its college sports.

# 36 yankeesgiants @ 02/25/10 11:49 AM

Quote:

Originally Posted by peteykirch


	Don't players already get a per diem on road trips? I remember reading through that kid from OSU his blog, that Club Trill and he gets a per diem.

They do:

NCAA Rules Regarding Per Diem and Meal Allowances for Student-Athletes
Per NCAA Bylaw 16.8.1.2.3, all student-athletes on the same team must receive identical meal allowances on intercollegiate trips and during vacation periods when student-athletes are required to remain on campus for organized practice sessions or competition. Such allowances may not exceed the amount provided by the institution to institutional staff members on away-from-campus trips and may not be provided for a particular meal if the student-athlete receives that meal (or its equivalent) from another source (i.e., coach pays, event banquet, etc.).
Any meal may be:

Fed as a team meal and charged on the hotel bill,
Fed at a remote location and paid from this advance fund, or
Given as cash to each student with their signature on the Student Per Diem Signature Form serving as their receipt.

The Student Per Diem Signature Form must be completed, and signatures for the exact amount of cash should be obtained by the coach. The dollar amount given to each student athlete must be posted on the student signature form at the time the student athlete signs the form and receives the money. It should be clearly explained that this signature and initialing serves as receipt of funds. Students shall not, under any circumstances: 1) be asked to sign a blank student per diem signature form, nor 2) be asked to sign the form without receiving the per diem at the same time.
Department of Intercollegiate Athletic Policies & Procedures:

Each Head Coach should ensure that the starting period, proper increment of petty cash for the appropriate number of meals, and the ending term for the petty cash issued are adhered to. The guidelines for these issues are as follows:
Time frames when breakfast, lunch and dinner meal money can be provided:
Before 8:30 a.m. – Breakfast
Between 12:00 Noon & 1:30 p.m. – Lunch
After 5:00 p.m. - Dinner
Beginning Time Period for Issuing of Per Diem - Whether on or off campus, the meal money issued should start no earlier than the assembly time required for the team, (e.g. if the team is required to depart Tuscaloosa, or meet for an on campus event at 2:30 p.m., the noon increment of money cannot be issued since the student should have eaten their noon meal in their normal area.)
Any meal which falls within the time frame of a meet, match, or game should be fed as the team meal, or the increment of meal money should be issued to the student athlete for the meal missed.
If a team meal is purchased by the department (e.g., between double header games, or while a meet is under way, but not involving all athletes at all times) no meal money can be issued to the particular athlete who receives the provided meal, in addition to providing that meal.
For meals not purchased by the Intercollegiate Athletics Department or another source (i.e, Event Host.), increments of meal money should be issued to athletes. The increments must meet the amounts listed in section 5(h) below.
Ending Time Period for Issuing Per Diem - For on campus events, per diem may be issued for the projected meals that an athlete will miss through one (1) hour past the end of the last event of the day (e.g. a baseball game which ends at 5:15 p.m., would require an additional hour for interviews and showers, we would assume that the student athlete would miss a 6:00 p.m. evening meal, therefore is entitled to competition day evening meal increment of $12. If the event was scheduled at 1:00 p.m. and terminates at 4:00 p.m., the noon increment and dinner meals may be issued to student athletes.

For off campus events, the ending time period will be the time at which athletes are released upon their return to campus.
Different circumstances and different locations may dictate different per diems to equitably support student athletes� meal requirements. The following guidelines will govern the amounts allowable for meal allowances for student athletes.

Competition Days - On or Off Campus
Breakfast $ 8.00
Lunch 12.00
Dinner 15.00
Pre- or Post-Game Food Must Be Provided
Max. Total for Day $35.00

Note: If student dining is open, only meals missed as a result of events may be reimbursed. All practice schedules must allow for students to meet their scheduled meal times. The Associate Athletics Director for Compliance must approve any exception.

Non-Competition Days – Off Campus or Days When Student-Athletes are Required to Remain On Campus During Official University Vacation Periods for Practice/Competition (i.e., Spring Break)

Breakfast $ 8.00
Lunch 12.00
Dinner 15.00
Max. Total for Day $35.00
On competition days only, it is permissible to provide a post-game snack or meal (actual food only; no cash may be provided in lieu of this post-game snack/meal), depending on nutritional requirements.
In some instances cost of living increases in certain metro areas increasing the allowable per diem to not more than $45 each day. Prior written approval from sport oversight Associate Athletic Director must be obtained.
During NCAA Championships and bowl games, NCAA bylaw 16.8.1.6 permits the institution to provide qualifying student-athletes $20 per day incidental expense money during a period limited to the maximum number of days of per diem allowed for the involved championship, or, for certified post-season bowl contests, for a period not to exceed 10 days. The $20 per day may be provided only after the team departs for or reports to the site of the championship or bowl game

# 37 marxshut @ 02/26/10 10:33 AM

Quote:

Originally Posted by ODogg


	Yeah good luck organizing a bunch of high school kids and their parents to demand money instead of, or in addition to, a free (and rather expensive) education and a chance at millions of dollars. The very nature of college ball is that all players going in feel they have a shot at millions of dollars so it'll never happen. Hinsight for players like Keller is 20/20. As others have said, if he was in the NFL making millions right now he'd not be involved in this suit. And that my friends is the reason future students will never unionize, because each player feels as if in doing so they are potentially giving up millions of dollars in the NFL..and for many students who have nothing and have grown up in poverty, that'll never happen. Also, two more words and I rest my case: Maurice Clarett

I don't think it will start with HS kids and parents. It will start with their so-called handlers / agents. More and more of the HS kids have "handlers" which is just a fancy term for agent. Bryce Brown's handler made money selling his recruiting updates. The less than ethical sports agents are going to figure out that there's money to be made here (i.e. selling the players likeness to EA for the game) the start to leach onto these top prospects. This is already happening now.

Again I'm not saying this happens tomorrow, but the more money that the NCAA generates, the more hands that will want to reach into the pot and find ways to get college athletes paid so they can get their slice.

# 38 ODogg @ 02/26/10 10:58 AM

How would that happen when having an agent, no matter what they call themselves, is against collegiate rules? If there were any organization by a "handler" or agent it would come out who was doing it and the kids would immediately lose any potential scholarships and that'd be the end of the story altogether. So for that reason I don't think it's possible at all for that to occur.

There is just no potential way, considering the situation, for any sort of unity against the NCAA by pre-college kids to occur here. None.

# 39 jkra0512 @ 02/26/10 06:37 PM

Quote:

Originally Posted by ka520


	I guess Keller's job as a bartender in Scottsdale isn't suppoting his coke habit.

Really guy, is that necessary?

# 40 colkilla @ 02/28/10 04:38 PM

when i played (ages ago) we got $60 on road trips, $30 for home games. my likeness was used in the year weurfel (sp?) was on the cover. if keller wins i want my cut. in all seriousness, this lawsuit is stupid in my opinion...

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