NCAA Football without the “NCAA”

NCAAFootball14NCAA Football, long a staple of the EA Sports gaming line-up, will cease to exist after the current version—a least under that name.

The NCAA announced yesterday that it would not renew its long-standing licensing deal with Electronic Arts.  An agreement between the two parties has existed in some form for 20 years.  The reason for the change is fairly simple: The Ed O’Bannon lawsuit creates huge potential liability for the NCAA.  Should a court rule that the organization must compensate athletes for the use of their likenesses, the NCAA could be on the hook for millions upon millions of dollars, depending on where the “line” is drawn for damages in terms of timing and the size of the class eligible for recovery.

Naturally, the NCAA says that “We are confident in our legal position regarding the use of our trademarks in video games.  But, given the current business climate and costs of litigation, we determined participating in this game is not in the best interests of the NCAA.”

In other words, “We believe we will win this suit.  But, all B. S. aside, we probably won’t.  So, we’re going to mitigate against future liability while we still can.”

In essence, that’s what’s at work—liability-shifting.  That was made even more clear when the NCAA added that “Member colleges and universities license their own trademarks and other intellectual property for the video game.  They will have to independently decide whether to continue those business arrangements in the future.”

EA quickly responded that it would, in fact, produce a college football game of some kind next year.

While what the NCAA is saying is, in a strict sense, true, that won’t shield it from liability.

The issue in the case is whether the NCAA profits from rules that specifically prevent its athletes from being compensated.  While it’s true that the schools individually may license their logos and names to the games, the issue in the O’Bannon case has nothing to do with the right of publicity of, say, the Maryland Terrapin or the Kentucky Wildcat.  The crux is the athlete, and the athlete’s right of publicity is compromised by the NCAA’s rules.

A decade ago, I wrote my third-year paper[1] in law school on this very topic.  I was absolutely convinced that existing caselaw (particularly in the Ninth Circuit) would mandate that athletes be compensated.  Only a radical shift in intellectual property jurisprudence with several prominent cases being overturned would produce an opposite result.

Without getting bogged down too much in federal copyright law or the relevant cases, here’s a quick summation of why O’Bannon and plaintiffs have what I believe to be a very strong case:

1. There was no contractual relationship between the NCAA and the athletes.  Defendants will likely argue that the member schools’ scholarship arrangements were contracts, but (A) those arrangements are not analogous to the type of contracts that would match caselaw that would help the NCAA, and (B) there would still be a huge class of non-scholarship players who wouldn’t fall under that umbrella.

2. Student-athletes are not “employees” for the purposes of federal copyright law pre-emption.  Their “product” is not a “work for hire” by its legal definition.

3. Whether a college sports video game depiction of a given athlete met the modern legal definition of “likeness” would have been a close call during the Sega Genesis days, but there’s no question that a current-generation system produces graphics that easily clear that hurdle.

This was held to be suggestive enough of Vanna White to be a misappropriation of her likeness.

This was held to be suggestive enough of Vanna White to be a misappropriation of her likeness.

4. There’s also what I would call the “jersey problem.”  Under the landmark White v. Samsung case, which is admittedly a little shaky in its reasoning, even something that might not be considered a “likeness,” per se, could trigger damages for infringement of the right to publicity.  Briefly, the intentional suggestion of someone specific could be enough.  So, if you sell a highly-recognizable college athlete’s jersey in the campus store, even if that person’s name isn’t on it, that could create a recovery for the athletes.[2]

So, what do the athletes have to do to win?  They have to prove the NCAA used their identity, that the appropriation was to the NCAA’s advantage, that there was no consent by the athletes, and that there was a resulting injury.

The second and fourth pieces are easy, at least for the most prominent athletes.[3]  The first shouldn’t be much of a hurdle under modern caselaw.  The third is tricky, as the NCAA will no doubt argue that the players “consented” when they agreed to compete for their respective teams.  The surrendering of these rights was a quid pro quo for possible future benefits and enhancement of their notoriety.  However, as I said before, IP caselaw is more suggestive that the consent must be given in a true contractual arrangement—one that is absent here.

I don’t think the NCAA will win.

As I said in 2003: “In short, if the players choose to bring this action, some of them, at the very least, should be successful in their attempt to get the money they so richly deserve.”

But where does that leave the future of the NCAA Football series?

Licensing is going to be a much bigger chore for EA, but I’m sure most schools, if not all, will sign on individually.  An organization called the Collegiate Licensing Company handles the licensing for most of the schools and conferences in play.

However, it’s not out of the question that, in this risk-averse environment, that at least some of the potential schools in the game may decline.  If that happens, we could find ourselves where we were back in 1993.

Note the lack of license and the inclusion of only 24 current and 24 all-time teams.  Sidebar: This game was GREAT.

Note the lack of license and the inclusion of only 24 current and 24 all-time teams. Sidebar: This game was GREAT.

There, EA Sports released its first college football game as an unlicensed title.  Once the NCAA and its member schools saw how successful the game was, they signed on for the sequel and all subsequent versions.  However, that first Bill Walsh game featured teams like “Provo” instead of BYU, or “South Bend” instead of Notre Dame.

While we may see a bit of that next year for any holdouts (especially in a conference like the Big Ten, which itself isn’t represented by the CLC, nor are several of its member schools individually), the more likely scenario is one that calls to mind another 90s video game: Coach K College Basketball.

Coach K was a game that did have a license, but, as a first-year effort, only included the schools that agreed individually to be in the game.  Whereas there was some rhyme and reason to the selection of the teams in Bill Walsh back before every D-I team was included, Coach K was more haphazard: Louisville, Duke, Kentucky, Kansas, and UCLA were all in the game, but teams like Georgetown and UNC were not.  On the other hand, Cal, Temple, and Missouri made the cut.

We might see something similar next season.  The pseudo-high-minded Big Ten, which previously threatened to become a Division III conference(!) if O’Bannon wins, could sit this one out.  After all, back during the Genesis days, the Big 10 was known as “Division 1A Midwest” for some time, even after the NCAA licensing agreement.

The Pac-12, another conference not represented collectively by the CLC, may also think twice.  And Notre Dame is always a universe unto itself.  In addition, I think certain other marks (an odd bowl game here or there, or perhaps a trophy or two) may go the way of the dodo for whatever reason.

Personally?  I’m actually kind of excited by the change.  The truth is that I haven’t seen any compelling reason to buy the two most recent versions of NCAA Football.  NCAA 2012 still plays just fine.  This licensing issue will probably force EA Sports to be more creative than they’ve been in years in order to intrigue gamers to try the new game.  The title will change, and so will the branding.  Maybe they’ll go back to their previous name: College Football USA.

Hearing about advances to A. I. and other we’ll-have-to-take-their-word-for-it tweaks hasn’t been enough to get me to buy the game in two years, but I bet next year’s ad campaign will do the trick.

Might we see something like this next season?  Go Pullman(?)!

Might we see something like this next season? Go Pullman(?)!

What form will that take?  Might we see the return of classic teams, a former staple of the series that has been missing for years?  What about the return of I-AA FCS teams?  How about features that EA always wanted to have, but which were vetoed by the overbearing NCAA (like sanctions, for example)?  Or will the individual schools also frown on such, ahem, attention to detail?

Another feature that I always liked on old versions of the game (but which disappeared during the BCS propaganda era) was the option to have a playoff instead of bowl games at the end of a season.  You can expect that, at the very least, to reappear in next year’s game.

Is it too soon to pre-order my copy of Bill Walsh ’15?


[1] It’s sort of like a thesis, except not as involved or lengthy.  It’s basically a 40-page scholarly article that had to be fulfilled as a graduation requirement.  You work one-on-one with a professor on formulating a topic, and that professor subsequently grades the final product.
[2] Note that this is where the schools themselves, more than the NCAA, really get into trouble.
[3] There is a limitation on this.  Courts have held that someone’s likeness has to be independently valuable.  While an Ed O’Bannon circa 1994, or a Robert Griffin III circa 2011 would fit that bill, there would be hundreds of thousands of athletes who wouldn’t.  That’s why I think that, while the athletes will almost certainly win, the class of successful plaintiffs may be fairly limited, relatively speaking.
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2 Responses to NCAA Football without the “NCAA”

  1. Tom Garrett says:

    Reblogged this on The Axis of Ego and commented:

    Seems like a good time to re-up this piece in 2013, which, in turn, was based on a law-school paper I wrote predicting the NCAA’s ultimate defeat in preventing players from profiting from their name, image, and likeness.

  2. Pingback: Best of 2013 | The Axis of Ego

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