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July 4, 2009 - College football players file suit over video game likeness

On July 4, the New York Times published a story on a  class-action lawsuit filed against Electronic Arts and the NCAA by fomrer Arizona State University quarterback, Sam Keller, arguing that they illegally profit from the images of college football and basketball players in video games. According to the Times, Ryan Hart, a former Rutgers quarterback, recently filed a similar lawsuit against Electronic Arts in a New Jersey state court.

The N.C.A.A. has long enforced strict rules barring its athletes -- most particularly football and basketball players -- from cashing in on their celebrity status.  However, critics arugue the NCAA is earning millions of dollars through licensing of college athletic attire, like those of jerseys, which are sold to profit from players' celebrity status.  The lawsuits resemble a new effort by athleties to challenge the NCAA in court for the right to control the use of their images.

“We signed a paper at the beginning of college saying we couldn’t benefit from our name,” Keller told the Times. “So why was the N.C.A.A. turning a blind eye to this and allowing EA Sports to take our likenesses and make big bucks off it?”

Richard Karcher, the director of the Center for Law and Sports at the Florida Coastal School of Law stated, "It’s more egregious when third parties are profiting off of amateur athletes,” he said.

The N.C.A.A. released a statement that the complaints were without merit and that the video games did not violate N.C.A.A. rules. A spokesman for Electronic Arts declined to comment. The lawsuits come as the N.C.A.A. is considering loosening restrictions on the marketing of individual players.

However, Amy Perko, executive director of the Knight Commission on Intercollegiate Athletics, an independent watchdog group, said profiting from the use of athletes’ images veered too far from amateurism. “If that line is erased, it puts the whole enterprise on the slippery slope toward further professionalization,” she said. Perko and others see the video games as the most extreme examples of the commercialization of individual athletes.

While the video games for N.C.A.A. sports do not use players’ names, there are easily recognizable visual similarities of the players, including jersey numbers, and other team statistics. However, by downloading player rosters from other users in a process set up by Electronic Arts, the names automatically appear on the back of jerseys. Several legal experts said that Keller and Hart made a persuasive case that Electronic Arts violated their right of publicity, which prevents the commercial use of someone’s likeness without that person’s consent.

Last November, a jury awarded more than 2,000 retired N.F.L. players $28.1 million for the use of their images in Electronic Arts' game, Madden NFL, without their consent.  The suit eventual settled at a reduced $26.25 million level.  The paper noted that while it is unkown the worth of college football players images, the N.F.L. players union earned more than $35 million in royalties from Electronic Arts in 2008.

According to the Times, the N.C.A.A. would not disclose its earnings from video game royalties, but they are likely a significant source of income for the association and the universities -- and may represent the second-largest category in earnings from collegiate licensing deals, behind apparel.