The other players are Arizona kicker Jake Smith, Vanderbilt linebacker Chase Garnham, Clemson cornerback Darius Robinson, and tight end Moses Alipate and wide receiver Victor Keise from the University of Minnesota. So what does it mean?
First, it means that the plaintiffs’ complaints and the remedies they seek could extend to cover current players. The suit, originally filed by former UCLA basketball star Ed O’Bannon, claims that the NCAA and video game manufacturer EA Sports keep athletes from sharing in broadcast and video game revenues that come from the use of their names, images, and likenesses even after their careers are over. But O’Bannon and the plaintiffs extended the suit to cover current athletes later, arguing that the same problems affect them too. At a preliminary hearing in June, federal Judge Claudia Wilken repeatedly asked attorneys why, if they were seeking damages for current athletes, they hadn’t found at least one to add to the case. Now they have.
That’s important, because Wilken’s repeated inquiries hinted that the lack of a current athlete was a major weakness, or at least a question mark, in the case. Wilken will rule later this month whether the suit merits class action certification, a step that would allow thousands of former and current athletes to join the case. The lack of current athletes named in the suit may have hindered the argument for including them in that class, and while Wilken could still decide that the plaintiffs don’t have a legitimate claim to merit class certification, the presence of six current athletes certainly makes the plaintiff’s claims stronger. Class certification would be bad news for the NCAA, since without it, players would have to file individual lawsuits that would be too costly for many of them to pursue. A class action suit that includes current players, though, could put the entire system on trial, making it even more dangerous for the organization that now risks having to both pay damages to former players and set up a different system for current players as well (the plaintiffs want money for current athletes to be set aside in a trust they could access once they leave college).
In essence, this makes the case not only about the use of names and images after players leave college, but the use of their names and likenesses while they are in college as well. Video games make the NCAA relatively little money. Broadcast rights, on the other hand, are worth millions and even billions of dollars, as proven by the major deals networks have signed with major conferences like the Southeastern Conference, Big 10, and Pac-12 in recent years. Current players bring the bulk of the money made off of college sports into play in a way former players never could.
Who these players are and what they are saying ultimately matters too. It is important that all come from programs in the six major football conferences, where the TV money is largest and where players can make legitimate claims that their names, images, and likenesses have been used to gain profits. And it is significant that they have a player like Fischer headlining the group, since he is among the nation’s top linebackers, a player with pro football hopes who can legitimately argue that the NCAA is making money off an image and a likeness that could otherwise be of considerable value.
The others have similar claims to the idea that fans are buying video games to play as them, not as nameless virtual players, and that fans are watching games to see them, and Robinson brings another aspect: to make extra money because he couldn’t work normal hours while playing football, he started his own business and used his own social media networks to market it. NCAA rules, however, prevent athletes from using their names to promote a separate business interest. Robinson can argue that while the NCAA and EA Sports are using his name and likeness to make money, they are preventing him from doing the same. The two Minnesota players don’t have avatars in the most recent version of EA’s college football game, but as Sports Illustrated’s Andy Staples noted, the Big 10 requires them to sign forms releasing their names and likenesses — and the plaintiffs could challenge the legality of that practice too.
The presence of current athletes doesn’t make this case a slam dunk. Far from it. The class certification ruling is still a major hurdle in the case, and even if Wilken rules in their favor, the players will have a long battle ahead of them that won’t be resolved while these six guys are still playing college football. But the NCAA is already fearful of the ramifications of this case, as their decision to end their contract with EA Sports this week shows, and the presence of current athletes only makes those ramifications larger. That people play video games for specific athletes and that who is playing matters when they watch games on TV is a reality fans have acknowledged for years, that EA Sports executives acknowledged earlier in this case, and that the presence of current athletes in this case could force the courts and the NCAA to finally acknowledge as well.