Well, I certainly agree, but the repercussions are a little broader than that, imo. If this lawsuit is right that the players sign away their likeness every year (which I've seen debated but never confirmed), then there could be some major repercussions about how NCAA merchandising is handled.Originally Posted by CLW
Twitter: @3YardsandACloud
The argument that a player's "likeness" includes a number has no merit. If that were the case then a player would also be subject to a lawsuit from former players and former players' estates for the new player using a former player's likeness without their permission.
I said nothing about a number ??? Unless you're connecting that with my previous post, in which I completely agree with you. I don't know why the link put emphasis on the jersey number. Whoop-dee-doo.
I'm just saying that the lawsuit claims, according to that link, that the players "sign a form each year giving up the right to their likeness that continues even after they graduate." That has widespread reprecussions for the NCAA if that was found to be unfair / illegal / what have you. I make no assumptions about whether or not it is ... but it would be a lot bigger than just video games. Nearly the entire NCAA marketing arm is predicated on using the likeness of players after they have graduated.
Twitter: @3YardsandACloud
If these players all sign waivers then ALL of these claims have zero merit. An individual has ZERO right to play for/on a NCAA affiliated team. As such, if part of the conditions to accepting a scholarship/playing for a team is waiving a right to the use of one's "likeness" then the NCAA/EA can do whatever the hell they want to in a video game.
No reputable court (translation outside of California/9th Circuit) would rule in favor of the Plaintiffs. The question becomes is EA/NCAA willing to fight up to the Supreme Court. If not, then the NCAA will lose its current right to show highlights etc... Moreover, ESPN could be sued for using players' "likeness" when they show video highlights. Etc...
An update. Tuesday will be worth watching. I was not aware of the other organizations throwing their support behind (and against) EA & the NCAA.
LINK
SAN FRANCISCO – There was a time when Sam Keller and his teammates couldn't wait to get their hands on Electronic Arts Inc.'s latest edition of NCAA Football, which included their team and images down to Keller's distinctive visor he wore while playing quarterback for the University of Nebraska in 2007.
EA shares undisclosed royalties with the NCAA for use of college stadiums, team names and uniforms and the players' images in a game that racks up hundreds of millions of dollars in annual sales. Because they are amateur athletes, the players don't receive any direct benefit from the appearances of their nameless images in the game.
But Keller and an increasing number of players, such as former UCLA basketball star Ed O'Bannon, think they should and have filed at least nine federal lawsuits against the NCAA and EA over the last two years.
On Tuesday, Keller will be in Pasadena to watch his team of lawyers urge the 9th U.S. Circuit Court of Appeals to uphold a trial judge's decision that EA and the NCAA appear to owe the former Cornhusker and — by the extension — thousands of other former players millions of dollars for using their images in the video game.
"When you are playing, you are kind of naive to the idea that you are being taken advantage of because you are so caught up in playing college football," said Keller of his decision to sue long after his college career ended and he failed to make the Oakland Raiders 2008 regular season roster. "They are making billions off of our images."
A Keller victory could dramatically reshape the commercial relationship between the NCAA and its athletes, which are prohibited from receiving compensation tied to their performances. Keller's attorney and his supporters are floating the idea of setting up a trust fund of sorts with any proceeds from the lawsuits to benefit the athletes. They envision the NCAA continuing to fund the trust fund with the billions in dollars it receives from television networks, apparel sales and other sources.
Keller was a highly sought recruit when he graduated from the Bay Area's San Ramon Valley High School in 2003. He played for three years at Arizona St., garnering MVP honors for his performance as a sophomore in the Sun Bowl. After losing the starting job, he transferred to Nebraska in 2006 and sat out that season because of NCAA transfer rules. Keller started for the Cornhuskers in 2007 as a red-shirt senior before breaking his collar bone against Texas in the ninth game of the season.
Keller's lawsuit has also unexpectedly ballooned into a major First Amendment challenge, prompting Hollywood's largest movie studios and dozens of other interests — from the estates of reggae legend Bob Marley and Nobel laureate John Steinbeck to ESPN and the Comic Book Legal Defense Fund — to weigh in on the case.
The hearing Tuesday in the historic Spanish Colonial Revival courthouse in Pasadena will focus on a February 2010 ruling by U.S. District Court Judge Claudia Wilken refusing to grant EA free speech protection and dismiss the lawsuit. EA argues that it uses the players' images to create works of art much in the same way authors, filmmakers and songwriters insert real people in novels, movies and songs.
Wilken ruled against EA, saying the company didn't sufficiently "transform" the players' images to qualify for First Amendment protection. She said EA's argument that it removed the names of the players from the game wasn't enough because it was obvious who the nameless images represented real people.
For example, the virtual player wears the same jersey number, is the same height and weight and hails from the same state, Wilken said.
EA and the NCAA appealed and are joined by the Hollywood studios, media companies and other organizations such as the Comic Book Defense Fund who fear that Wilken's ruling, if allowed to stand, will severely stifle artistic expression.
EA's lawyers, for instance, predict the demise of movies such as "Forest Gump" that rely heavily on the free use of celebrity images to further a narrative.
"Documentarians, biographers, filmmakers, novelists, photographers, songwriters, and many others do exactly what the district court said is not protected: they create expressive works that realistically depict individuals and/or refer to them by their actual names," EA's lawyers wrote in their appeal.
Allowing the players' lawsuit to go forward will threaten future movie productions, Motion Picture Association of America wrote in support of EA.
"For example, an unauthorized biography of Keller, which included photographs of him wearing his college football uniform or playing college football, would be strictly prohibited," the MPAA's attorneys wrote the appeals court. "So too would a motion picture about a fictional college football player that incorporated historical footage of actual college football games and named actual college football players."
Keller's attorney dismisses the threats of an artistic Armegeddon if EA ends up owing the players for using their images.
"There is a big difference between those examples and a video game based in realism," said Steve Berman, one of Keller's attorneys. "They're whole game is realism. Realism is the opposite of creative expression."
Keller has his share of supporters, too. Players unions of all major professional sports leagues in the United States back Keller as do the estates of Marley and Steinbeck
"EA's infringing use of the athletes' personas is tantamount to stealing, and opens the door for others to freely circumvent the statutory and common law right of publicity of any individual in the future," wrote lawyers for the Steinbeck estate, the Screen Actors Guild and several other organizations representing authors and actors. "The result can be ruinous to a performers' career and financial interests, as well as to their families'."
If Keller prevails, many of the myriad lawyers involved in the case and legal scholars following it closely say the case could end up before the U.S. Supreme Court. Keller said in an interview Thursday from Scottsdale, Ariz. where he lives and manages a hotel bar that he never envisioned his complaint becoming so far reaching.
"The goal wasn't for it to get so big," Keller said. "The goal was to change what's going on in college sports, to change the behavior of the NCAA."
Wow... that's gotten quite a bit bigger than I ever expected. I can see the stretch of the argument both ways, though EA is stretching it abit far saying that would start limiting/preventing movies like Forrest Gump from developing the way they did. Will definitely be interesting to see how all of this develops. IMO the whole matter needs to come down to including players' likeness into their scholarship contract somehow.
long story, short...
EA has never used these players names and they dont update roster ratings each year to emulate the player. Keller cant say- thats me in the game, because it isnt. Having the same jersey number is vague.
I think something will definitely change. It has to. Yes, that seems like an overwhelming amount of support being EA and the NCAA, but something's going to have to give. And the reason I think something's going to have to give is stories like this, which I guess I didn't post here:
Say what you will ... Sam Kellar is not The Big O.http://sports.yahoo.com/top/news?slu...obertson012611
Robertson's name recognition alone is enough to give this suit some new, and important, legs. And Tate George's case is certainly interesting, though upon looking at the shot on YouTube, I can't honestly say I remember seeing it in any recent ads.Oscar Robertson is asked to affix his autograph to various items every day and he recently discovered a new one being pushed in front of him by fans – trading cards featuring him as a player at the University of Cincinnati. Some come with a swath of his “game jersey” attached. Others have him in his freshman number, 22.
This was not a product he recalled approving for his likeness to be used. He tried calling the trading card companies (Upper Deck, Donruss) for an explanation yet couldn’t get a response.
The answer was the NCAA had signed licensing deals with the companies without Robertson’s direct consent. The association maintains it has the right to control a player’s likeness in perpetuity.
In the case of the 72-year-old Big O, that means 51 years and counting. He left UC in 1960.
Yes, but, having the same jersey number, skin tone, height, weight, and home state becomes considerably less vague. Thank goodness dreads aren't in the game, then it could be really obvious.
I think any stance of "those aren't real players" EA might take was torpedoed when ESPN used EA's highlights in their own broadcast, and showed guys like Auburn QB #2 (with names on the back of the jersey, IIRC) in the game, while talking about the real player.
Twitter: @3YardsandACloud
Playing sports with a $50,000 education as compensation is not "getting used". I'm really tired of athletes saying that. How many of us would love to have such an opportunity? If you don't graduate, or you end up running a hotel bar, it's your fault. Keller is a failed athlete trying to capitalize off of what he used to be. STFU and get me a Rolling Rock, Sammy.
I'll agree with this statement. I'm tired of these players feeling like they are owed something.
I never realized it had so much traction either.
Some one give Keller some money and tell him to stfu
I'm not surprised this case has garnered the attention it has. It has SIGNIFICANT legal ramifications and it involves "celebrity" (or at least former celebs in athletes that didn't pan out).
This is how liberals/progressives (and most importantly attorneys) want you to think. EA (big bad company) is lieing about the possible ramifcations of Plaintiffs' argument/case. There is NOTHING different (legally speaking) from what EA currently does and some movie maker or an author does when writing/filming a documentary/biography without the subject's express permission. If Keller et al. are successful in their suit it literally can change a ton of industries and lead to a ton of new litigation (which is really what Keller's whores/attorneys want - a new type of case to bring in "billions"). I mean seriously think of the shere number of all of the athletes/people that have ever been "portrayed" in a video game w/o their permission.
In NCAA Football alone its 8,400 potential plaintiffs/clients every year. FYI - that is over FOUR TIMES as many plaintiffs/clients that are generated from mesothelioma. I can guarantee you every single one of you has seen 1000s of plaintiffs' law firm commercials re: mesothelioma. This has 4 times the potential "rain making" as that and lawyers will be running around the country trying to find each and every has been to sue EA/2K for using their "likeness" w/o their permission.
I've said this from Day 1. IF EA cannot prevail on appeal (which given the area of the country they are in is unlikely w/o going to the Supreme Court) they should pay Keller and the rest of the losers and then have every NCAA athlete sign a waiver. If you don't sign you are not in the game. If you do sign your name/#/height/weight/etc... will be in the game. I'd imagine 90% of the athletes would happily sign and never think twice about the "injury" they are "suffering" from having their "likeness" portrayed in a video game.
Exactly.
LMAO post of the day.
LOL this "silly" lawsuit got my legal creative juices flowing to think of some crazy potential future plaintiffs best one I have thought of so far:
"Little Johnny" v. ESPN - you know how ESPN sometimes shows a highlight from some little kid's game where a kid makes a half court shot at the buzzer?
Well I betcha ESPN et al. did NOT get every single player in the shot's permission to put their "likeness" on TV. Even better for the plaintiffs lawyers the statute of limitations won't even start running until those little tikes turn 18. So that's a decade + of hunting/searching for new clients that have suffered "unimaginable" "pain" "suffering" "emotional distress" etc... for being humiliated in front of millions on t.v.
The inherent flaw in how NCAA athletes are treated is that there is this archaic view of them being "unpaid amateurs;" I'm sorry, but once you get a full-ride scholarship to go to a school--in my opinion--you have been paid.
As somebody with a crapload of student loan debt from getting two degrees, I would rather that scholarship money be kept aside for students who legitimately wish to get educated and earn degrees instead of paying athletes to attend schools and do barely enough in the classroom to stay on the football field and eventually make millions of dollars per year in the NFL.
EDIT
Forget where I saw/heard this, but there was a sports commentator calling for the NFL to change their practice of listing where a player comes from, school-wise. Something like 60-70% of NFL players never followed through and earned degrees from their schools, yet still get listed as coming from that school in official NFL materials and in telecasts. Maybe the "shame" of being listed as only getting a high school diploma for these players who used college as a means to make the NFL would convince them to stick around and make the educational process matter.
Last edited by Paakaa10; 02-14-2011 at 12:12 PM.
It's a sound idea in theory but I don't think many of the felons int he National Felons League care. In fact, I'm pretty sure that you will see a guy or two on MNF say they are from some high school or some Fictional place when they say their "school". Unfortunately, the problem here is really a societal one. Far too often we praise and even borderline worship people who are nothing more than a thug with a God given althetic/physical ability.
Sad but true. I think that more should be made about football programs in the NCAA who graduate high percentages of their athletes. I know that there is some distinction given to the programs with the highest graduation rate, but you never really hear them talked about as much as somebody like Cam Newton who dashed from college-to-college to play football and then forego his senior season to declare for the NFL Draft.
And, I believe, I've agreed with you on this since Day 1.
Twitter: @3YardsandACloud
I'm in the middle on this...
Is Keller a douche? Yup.
Is he a washed up player trying to cash in on his past? Damn straight!
Was he already paid to play football? Absolutely! I'm with you steelerfan, a scholarship is a pretty big damn deal.
Does he have a case? He sure as hell does!
If I was in a game in every way shape and form minus my name I would probably be a little pissed as well and want compensation. What this speaks to is a much larger issue here. At some point, the NCAA is going to have to deal with the fact that the amount of money involved in college football makes it professional in everything but name. It's no longer small potatoes we're talking about here. EA and the NCAA are making Billions of dollars using these players likenesses and then adopt a "who me?" attitude when someone calls them on it. Definitely not saying I want the players to be paid or anything but I think it's ridiculous of them to expect the players to watch them deposit money by the truckload and not want a cut.
Again, before anyone jumps on me here, I'm not taking either side. I think it could be looked at it similarly to an internship program with a stipend & if you do well you get a full-time job (NFL). I'm simply saying I understand the player's side as well (even the douchey ones like Keller).
If you don't want your perceived "likeness" used, decline the scholarship and pay for school yourself. Maybe that's a good way to resolve this. Athletes who aren't on scholarship get $500 a year if their "likeness" is used. Take the scholly, take the $500, or don't play. Your choice.
It's funny that these athletes all want to change the system from the outside. If they were passionate about the "injustices" and not just about "where's my payday", they'd be lining up to use that education to get themselves inside the system to change it for the betterment of future generations of players. I mean, they are given an education. With that comes the opportunity to accomplish anything. They don't feel screwed until they've pissed it away. I have no sympathy.
Maybe the NCAA should go after tuition fees for any player who ever used that free education to earn a living. Lol. Players have to realize that the education is their payment. If they take advantage of it, it will pay them for the rest of their lives. If not, they will end up tending bar in a hotel.
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