2 on 2: Sam Keller and Ed O’Bannon vs. NCAA and CLC (with EA on the bench)

The time has come.  I have read article after article and received tweet after tweet about a couple of high profile lawsuits against the NCAA and Collegiate Licensing Company (one also includes Electronic Arts as a defendant), so it’s time to stop collecting tabs on my Firefox browser and address some of the issues involved in the cases.

First up: Samuel Michael Keller v. Electronic Arts, Inc., NCAA, Collegiate Licensing Company.  The complaint was filed on May 5, 2009 in the United States District Court, Northern District of California.

Electronic Arts has created a long line of profitable games under the EA Sports umbrella.  For its games based on professional sports, it can use players’ names and their likeness by bargaining with the players’ association.  For instance, if EA Sports wants to put player names on Madden 2010, the NFLPA can assign those rights to Electronic Arts (for roughly $35 million per year, according to the lawsuit).  EA pays the NFLPA a fee, and all is said and done.  So, can’t Electronic Arts make a similar deal with the NCAA to use college athletes’ likenesses on games like NCAA Football, NCAA Basketball, and NCAA March Madness?  Keller is arguing that such a deal is illegal.

The claim being made is that NCAA bylaws (Bylaw 12.5), contracts, and licensing agreements (between Electronic Arts and the Collegiate Licensing Company) prohibit outside entities from using NCAA players’ names, pictures, and likenesses; however, the NCAA and Collegiate Licensing Company are doing absolutely nothing to deter Electronic Arts from using those names and likenesses.  In fact, Keller argues that the NCAA encourages the violation of its own bylaws, contracts, and licensing agreements, because in the end, the NCAA benefits from increased royalties.  In defense of EA, players do not have names attached when a consumer purchases the original game.  However, Keller claims that EA does not do enough to prevent gamers from uploading new rosters that include player names.  This sounds like a claim of vicarious liability that I believe will be hard for Keller to prevail on.

Keller wants to make it a class-action lawsuit on behalf of all NCAA athletes who have had their names and likenesses used without permission.  If your height or weight is not the same (or very close to the same) on the game as it is in real life, then sorry, but you’re left out of the suit.

Is EA’s replication of an athlete’s jersey number, height, weight, build, skin tone, hair color, hair style, and accessories (like wristband, headband, facemask, and/or visor) a replication of that player’s likeness?  That’s for the court to decide.  When you hit the sticks for a rivalry match between the Gators and Seminoles, can you easily tell that the starting Quarterback for the Gators is Tim Tebow based on his image alone?  Or are you only confirmed of that based on your prior knowledge that he is the QB for the National Champions?

Players’ names are left off of jerseys on purpose in an effort to avoid this type of litigation.  The NCAA and CLC may point to that and show just how many gamers go through the process of downloading the rosters so that the names are then revealed.  I do not believe that EA is contributorily liable for the actions of the consumers who download the rosters, because I cannot see how EA encourages the downloading of those rosters by any specific act.  However, perhaps EA is found to be vicariously liable.  It’s hard to say that EA does not have constructive knowledge that its consumers are actively downloading rosters.  But does EA directly or indirectly benefit from the action?  I would say that people are going to buy the games whether or not they can download the rosters.

The amount in controversy exceeds $5,000,000.  One would think that maybe the NCAA, CLC, and EA would take interest in this case.

Case #2: Edward C. O’Bannon, Jr. v. NCAA and Collegiate Licensing Company. The complaint was filed on July 21, 2009 in the United States District Court, Northern District of California.

The NCAA and CLC might take interest in this one too.  Electronic Arts breaths a sigh of relief…unless Keller’s suit is joined to O’Bannon’s.

Edward C. O’Bannon, Jr., also known as Ed O’Bannon, also does not like not getting paid when his likeness is used.  Like Keller, he has decided to file suit in Federal Court, and made it a class-action suit on behalf of all of his collegiate athlete brethren.  O’Bannon has a lot more fish to fry than Keller, though.  Not only is he upset with the NCAA for allowing the usage of his likeness on video games, but also on DVDs, TV, photos, memorabilia, and advertising in general.

O’Bannon is not only claiming that current student athletes have a right to royalty payments when their likeness is assigned or used by the NCAA.  He is also claimimg that former players control the right to use their likeness and former likeness, and that the NCAA should be prohibited from earning profits on players’ likenesses once they leave campus.  Additionally, O’Bannon claims that athletes transfer their name/likeness rights to the NCAA upon accepting a scholarship because they have absolutely no choice and are never told to attain outside legal advice before making the transfer.

O’Bannon believes that the NCAA has restrained trade in an effort to exploit former collegiate athletes and reap profits without making any type of royalty payment to those athletes.  This lawsuit has a little Antitrust zing that the Keller complaint seems to lack.

A little FYI – the Collegiate Licensing Company is a subdivision of IMG.  IMG is a conglomerate with a large sports representation practice in golf and tennis.

Another FYI – O’Bannon has some big guns on his side: Attorneys with solid track records in popular cases and Sonny Vaccaro.

At least these cases won’t prevent the release of future versions for Bulls vs. Blazers or Tecmo Super Bowl.  Yeah…like the Bulls and Blazers will ever be in the Finals again, anyway!