The Ninth Circuit Court of Appeals handed down Wednesday a victory for college athletes, one that could foreshadow an even bigger win on the horizon.
A split court ruled in the case of Sam Keller, the former Arizona State and Nebraska quarterback who sued Electronic Arts for using his likeness in their NCAA Football video game series without permission or compensation. The court determined that EA cannot use First Amendment protections to shield themselves from lawsuits like Keller’s.
The decision may another damaging blow for EA’s popular college sports video games. EA has said they plan to appeal, but sports law professor Michael McCann told Sports Illustrated he doesn’t expect the Supreme Court to take the case. If the Ninth Circuit decision stands, the company would no longer be allowed to use the likenesses of current players. While some diehards might still buy the games, much of their appeal stems from knowing that when you’re rushing the passer with a 6’6″ guy with dreadlocks, it’s Jadeveon Clowney even if in the game it’s “DE #7.”
Of course, the other option is for EA to compensate the players, which is where the Keller case’s broader implications come in. The appeal of the suit filed by Ed O’Bannon against the NCAA (which includes EA as a defendant) will also be heard in the Ninth Circuit, and both the majority and the dissent in Wednesday’s ruling had some harsh words for the NCAA. From Sidney Thomas’ dissent:
The issue of whether this structure is fair to the student athlete is beyond the scope of this appeal, but forms a significant backdrop to the discussion. The NCAA received revenues of $871.6 million in fiscal year 2011–12, with 81% of the money coming from television and marketing fees. However, few college athletes will ever receive any professional compensation. The NCAA reports that in 2011, there were 67,887 college football players. Of those, 15,086 were senior players, and only 255 athletes were drafted for a professional team. Thus, only 1.7% of seniors received any subsequent professional economic compensation for their athletic endeavors. And participation in college football can come at a terrible cost. The NCAA reports that, during a recent five-year period, college football players suffered 41,000 injuries, including 23 non-fatal catastrophic injuries and 11 fatalities from indirect catastrophic injuries.
Before the O’Bannon and Keller cases go to trial in 2014, a number of legal issues remain to be sorted out, including whether EA will settle with O’Bannon in the wake of Wednesday’s decision and whether the plaintiffs, who added six current players to their rank next week, will be certified as a class.
Still, it can’t warm the NCAA’s hearts that a judge from the same court that will ultimately hear its case used a footnote to take note of the unfairness of the NCAA schemes even though it played no role in the Keller decision — and that was a judge that supported EA’s right to use the player likenesses without compensation.
Ironically, the best hope for a realistic college football video game moving forward might be a complete overhaul of the amateur athletic system. If the O’Bannon decision leads to a system in which college athletes can be compensated for the value they bring to their schools, they could eventually work out an agreement (like the professional unions have with other sports games, such as Madden) to use player likenesses. If not, DE #7 might have to be a 6-foot white guy in College Football 2018.