United States: Quarterback Takes On College Athletics And Video Game Manufacturer

Last Updated: November 14 2013
Article by Richard S. Stockton

The student athlete plaintiffs in a putative class action lawsuit1 against Electronic Arts, Inc (EA), the National Collegiate Athletic Association (NCAA) and the Collegiate Licensing Company (CLC) have a lot to be thankful for this Thanksgiving. Or do they?

Their pilgrimage began in May 2009, when Sam Keller, a former starting quarterback for Arizona State University and University of Nebraska, sued video game maker EA, the NCAA and the CLC for using student athlete names and likenesses in EA's NCAA Football, NCAA Basketball and NCAA "March Madness" series video games. The video games simulate NCAA athletic competitions, and depict a cornucopia of collegiate realism, including team branding, uniforms, stadiums and mascots.

The video games also feature players of course, and therein lies the root of Keller's beef. NCAA bylaws generally prohibit the commercial use of any NCAA student athlete's name, picture or likeness.2 While EA never released video games with players having actual student athlete names, player game characteristics like position, height, weight, team number, home state and school year uncannily coincide with actual student athlete characteristics.

The complaint, for example, compares Kent State Golden Flashes running back Eugene Jarvis (No 6) to his alleged virtual twin, "HB #6," in the NCAA 2009 Football video game. Among other things, both Jarvis and HB #6 are listed as five-foot five-inch, 170-pound redshirt juniors from Pennsylvania, although they have different hometowns. The complaint alleged other intriguing facts, including that EA sent detailed questionnaires to team equipment managers. Student athlete idiosyncrasies such as arm bands, playing styles and athletic ability matched video game players, and that more recent video game editions allowed importing of third-partygenerated supplemental roster data that included actual student athlete names.

Although a class has not been certified yet, 26 co-plaintiffs have joined Keller, including six current student athletes, former UCLA basketball star Ed O'Bannon and National Basketball Association Hall of Fame entrants Oscar Robertson and Bill Russell. The plaintiffs also expanded their claims to include other alleged name and likeness uses, including live and re-broadcast television uses and antitrust violations.

On the defendants' side, fissures formed. In July 2013, the NCAA declined to renew its NCAA Football video game licensing agreement with EA, adding in a press release that "[t]he NCAA has never licensed the use of current student-athlete names, images or likenesses to EA." On September 26, to the delight of video gamer spouses and significant others, EA announced that it would not make a new college football game in 2014 (it had not made a college basketball game since 2010), adding that "[w]e have been stuck in the middle of a dispute between the NCAA and student-athletes who seek compensation for playing college football."

A few hours later, EA and CLC announced a settlement with the Keller plaintiffs and former Rutgers quarterback Ryan Hart, who was pursuing a separate case against EA,3 leaving the NCAA to fight alone. The settlement terms are currently confidential, but ESPN reported that EA and CLC would pay $40m.4 As of January 2013, plaintiffs' legal fees had already gobbled up more than $20m.5 As of mid-October 2013, presiding Judge Wilken must still approve the settlement, and is likely scrutinising settlement fund allocation.6

Plaintiffs' lawyers proclaimed that "[t] oday's settlement is a game-changer because, for the first time, student athletes suiting up to play this weekend are going to be paid for the use of their likenesses." While grandiose at this juncture, the statement may foreshadow future events.

What's next?

Forty million buys a lot of cornbread and stuffing, but will Judge Wilken grant their class certification motion, which was argued in June and is ripe for decision? Judge Wilken's past class certification history and statements on the record in this case suggest to some observers that she will certify. For example, in granting leave for defendants to file further motions to dismiss on September 10, Judge Wilken wrote that "[d]efendants may intend to seek an interlocutory appeal of any class certification order, and the Court does not wish to leave open a claim that they were not allowed to present all of their arguments."

Assuming Judge Wilken finds sufficient similarities and certifies a class, hundreds of thousands of student athletes could sit at Keller's table, and his video game spat will have evolved into an all-out assault on the NCAA and college amateurism. Whereas video game royalties from EA to the NCAA likely do not exceed $10m annually, the NCAA anticipates receiving almost $800m in media revenue this year alone, mostly from television rights to the NCAA men's basketball tournament.7 With plaintiffs undoubtedly eyeing lucrative additional media revenues of college conferences not yet named as defendants, class certification would put billions of dollars on the table.

The right of publicity?

For IP practitioners, Keller offered to establish significant legal precedent for the right of publicity. Early in the case, EA moved to strike Keller's right of publicity claims on the ground that First Amendment interests in creating a college football video game outweighed Keller's right of publicity-based economic interests. The United States Court of Appeals for the Ninth Circuit controlling precedent established a "transformative use" test when balancing these interests, involving "whether the celebrity likeness is one of the 'raw materials' from which an original work is synthesised, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question."8

Judge Wilken rejected EA's transformative use argument. The ninth circuit affirmed 2-1, with Judge Thomas dissenting that "[t] he majority confines its inquiry to how a single athlete's likeness is represented in the video game, rather than examining the transformative and creative elements in the video game as a whole. In my view, this approach contradicts the holistic analysis required by the transformative use test."9

In the separate Hart case, presiding Judge Wolfson ruled for EA on a similar motion, applying (like Judge Thomas) the transformative use test to the overall context of the video game. The United States Court of Appeals for the Third Circuit reversed 2-1. While the ninth and third circuit decisions are reconcilable, the dissents and other circuits' varying tests indicate that rulings that balance right of publicity and First Amendment interests can be as different as cranberries and casserole – especially for video games.

EA petitioned the US Supreme Court for a writ of certiorari regarding the Ninth Circuit decision and the balance between First Amendment and right of publicity interests. The petition offered the chance for the Supreme Court to evaluate the right of publicity for only the second time, and more than 35 years after the Supreme Court rejected a news service's First Amendment defence to rebroadcasting Hugo Zacchini's entire 15-second human cannonball act.10 However, EA settled three days later (some believe the petition was a mere settlement ploy), although the petition will likely remain on the Supreme Court docket at least until EA is dismissed, with plaintiffs' time to file a response recently extended to January 2014. Still, the settlement probably means the Supreme Court ship has sailed on this issue.

Antitrust

Due to legal and practical limits on the right of publicity, alleged antitrust violations based on the NCAA restricting student athletes' ability to license their rights of publicity are now the Keller case's centrepiece. Among other things, the NCAA has steadfastly argued that it is not actually using student athletes' names and likenesses in video games and television. Accordingly, and given a dearth of inducement-type right of publicity statutes and case law, plaintiffs were relegated to asserting generic civil conspiracy and breach of contract causes of action against the NCAA for right of publicity violations. Moreover, the state lawbased right of publicity is not homogenous. Some states recognise the right of publicity by statute, some by common law, some by both, and some not at all. States like California exempt news and sports broadcasts by statute,11 and some states extinguish the right at death. Antitrust causes of action enable the plaintiffs to paint with a broader brush while increasing the likelihood of class certification.

However, the right of publicity continues to undergird the antitrust case. For example, a key NCAA counterargument in its most recent motion to dismiss is that the right of publicity is not recognised in broadcasts of sporting events, and therefore, that an antitrust cause of action based on a restraint of these rights is improper. Clear precedent is scant because blanket assignments of professional athletes' rights of publicity previously nullified this issue and also because of the state law differences discussed previously.

NCAA General Counsel Donald Remy has hired additional counsel and vowed to take the Keller case "all the way to the Supreme Court," reaffirming that the NCAA is "not prepared to compromise."12 Given that the college amateurism model and billions of dollars are potentially at stake, and that plaintiffs' lawyers may be about to harvest some very thankful settlement cash, Keller's leftovers may be litigated for years to come.

Footnotes

1. In re NCAA Student-Athlete Name & Likeness Licensing Litigation, Docket No 4:09-CV-1967- CW, United States District Court for the Northern District of California (J Wilken).

2. NCAA Bylaw 12.5.1 prohibits, for example, the sale of "[i]tems that include an individual student-athlete's name, picture or likeness (eg, name on jersey, name or likeness on a bobblehead doll), other than informational items (e.g., media guide, schedule cards, institutional publications)." 2013-14 NCAA Division I Manual, Bylaw 12.5.1.1(h).

3. Hart v Electronic Arts Inc, Docket No. 3:09-CV- 5990-FW, United States District Court for the District of New Jersey (J Wolfson).

4. Players to Receive $40 Million, ESPN.com, September 28, 2013 http://espn.go.com/college-football/story/_/id/9731696/ea-sports-clc-settle-lawsuits-40-million-source

5. NCAA Athletes Can Pursue TV Money, ESPN. com, January 30, 2013 http://espn.go.com/espn/otl/story/_/id/8895337/judge-rules-ncaa-athletes-legally-pursue-television-money

6. By contrast, approximately 2,000 former National Football League athletes reached a $26 million settlement in 2009 with the NFL Players Association, mostly regarding EA's use of their likenesses in its "Madden" series video games. Parrish et al v Nat'l Football League Players, Inc, Docket No 3:07-CV-0943-WHA, United States District Court for the Northern District of California (J Alsup).

7. NCAA Consolidated Financial Statement, 2011- 12, http://www.ncaa.org/wps/wcm/connect/public/NCAA/Finances/NCAA+consolidated+financial+statements

8. Comedy III Prods, Inc v Saderup, 25 Cal 4th 387, 406 (2001) (rejecting a purported First Amendment right to print the Three Stooges' likenesses on t-shirts).

9. In re NCAA Student-Athlete Name & Likeness Licensing Litig, 107 USPQ2d 1629, 1641 (9th Cir July 31, 2013) (Thomas, J., dissenting).

10. Zacchini v Scripps-Howard Broadcasting Co, 433 US 562 (1977).

11. See, eg, Cal Civ Code § 3344(d).

12. NCAA Vows to Fight O'Bannon Suit to the Supreme Court, USA Today, September 26, 2013 http://www.usatoday.com/story/sports/ncaab/2013/09/26/ncaa-ed-obannon-ea-sports-lawsuit-supreme-court/2877579/

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions