Lawsuit against EA/NCAA over player likeness

I'm not so sure schools, the NCAA, or EA are making the money that we think they are.

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A newly released NCAA report shows that just 14 of the 120 Football Bowl Subdivision schools made money from campus athletics in the 2009 fiscal year, down from 25 the year before.

Researchers blame the sagging economy and suggested that next year's numbers could be even worse. - Link

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California-based EA Sports has announced a workforce reduction that will cut approximately 1,500 positions across the company. The layoffs will include 51 employees in Maitland, home to EA Tiburon, the second largest studio among Electronic Arts' World Wide Studio facilities.

"EA Sports plans to narrow its product portfolio to provide greater focus on titles with higher margin opportunities," read a statement sent to FOX 35.

The company anticipates annual savings of $100 million with restructuring charges ranging from $130 to $150 million.

Most of the job cuts are expected to be completed by March of next year. - Link

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It is though that all of these job cuts will save the company $100 million annually, following a recent report of a $391 million loss it is no huge surprise. - Link

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Now, the NCAA is sitting on a lot of money - but they realize they may need it to help bail schools out. (I wish some of our elected officials in DC knew how to sit on and save money like this, but that discussion is for a different time and place.

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The NCAA is discussing the future of a nearly $180 million endowment fund, including the possibility of distributing some of the money to member schools as athletic departments continue struggling with the economic downturn.

The NCAA had $705.5 million in revenue and $649 million in expenses during its fiscal year that ended Aug. 31, 2009, according to its recently filed tax return.

It is projecting $710 million in revenue and $672 million in expenses for fiscal 2010, according to a revised budget posted on the NCAA's website, but it is on track for a greater surplus, spokesman Erik Christianson said via e-mail. - Link

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In all three situations, I'm not seeing the windfall profits that people keep talking about. In fact, if they now had to pay out something for a perceived use of likeness (which I do not believe is happening according to legal precedence, if I read it correctly), get ready for many, many sports to be cut, more job losses at EA, and the NCAA to go belly-up. (I know people dislike the NCAA, but without them college athletics as we know it have no chance of surviving.)

Steelerfan I tend to agree with your line of thinking there & if there is something in their scholarship agreement that gives the university unlimited use of their likeness then I think it should be an open an shut case. If there isn't however, I would think that these former players have a case to some extent at least.

CDJ, is that athletic departments as a whole or specifically football? If football profits are being used to "float" the rest of the athletic department in most cases then I think that skews the numbers quite a bit. And as far as EA not making as much, I don't think they would still be in business if they weren't making plenty of money. Which, in the case of NCAA Football 'XX, is closely related with having accurate teams and rosters.

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Originally Posted by Kwizzy

CDJ, is that athletic departments as a whole or specifically football? If football profits are being used to "float" the rest of the athletic department in most cases then I think that skews the numbers quite a bit. And as far as EA not making as much, I don't think they would still be in business if they weren't making plenty of money. Which, in the case of NCAA Football 'XX, is closely related with having accurate teams and rosters.

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- I believe that's for athletic departments as a whole. I think the point still stands. If schools have to funnel (football) profits into a fund to reimburse players, smaller sports (starting with men's programs) are going to get the ax. If it ends up that the NCAA has to distribute money on their side, does that mean championships or other NCAA-sponsored events go by the wayside?

- EA doesn't release detailed profits, but I've always thought from articles that a lot of the EA SPORTS titles benefited from the success of Madden NFL and FIFA. By themselves, I'm not sure how profitable any title any of the other titles are. Based on what happened with EA & 2K's basketball titles, I'm sure the cost of dealing with the CLC is pretty expensive.


Though, the case should really be about 'is the NCAA allowing licensees to develop items/products with the likenesses of student-athletes'? Instead, they've done a good job of turning it into the NCAA and licensees making profits off of player likenesses, when in reality the profit (or loss) shouldn't even be an issue. (It's worked as we're talking about it here. :P) The plaintiffs know that Americans (particularly as of late) generally seem to not care for perceived large profitable organizations.

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Originally Posted by cdj

- I believe that's for athletic departments as a whole. I think the point still stands. If schools have to funnel (football) profits into a fund to reimburse players, smaller sports (starting with men's programs) are going to get the ax. If it ends up that the NCAA has to distribute money on their side, does that mean championships or other NCAA-sponsored events go by the wayside?

- EA doesn't release detailed profits, but I've always thought from articles that a lot of the EA SPORTS titles benefited from the success of Madden NFL and FIFA. By themselves, I'm not sure how profitable any title any of the other titles are. Based on what happened with EA & 2K's basketball titles, I'm sure the cost of dealing with the CLC is pretty expensive.


Though, the case should really be about 'is the NCAA allowing licensees to develop items/products with the likenesses of student-athletes'? Instead, they've done a good job of turning it into the NCAA and licensees making profits off of player likenesses, when in reality the profit (or loss) shouldn't even be an issue. (It's worked as we're talking about it here. :P) The plaintiffs know that Americans (particularly as of late) generally seem to not care for perceived large profitable organizations.

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It's not really the football players problems that these schools have chosen to fund sports that do not make money though is it? I don't think that a judge would care. Again, I'm not saying I agree with the plaintiffs here. I'm simply saying what they (and their lawyers) may say. They will argue that their sport, an by extension they, brought in millions of dollars to the university.

That very well may be the case with EA however the incorporation of the players likenesses definitely brings something to the table for EA otherwise they wouldn't produce the game. Keller & the rest of them will be able to argue for a percentage of whatever those profits may be.

Again, if there is somethig in the scholarship paperwork that entitles the university & ncaa to use their likenesses in this manner then I don't think this is even an issue. IMO if there isn't then it should be added & the scholarship is more than enough compensation. Past players would still, legally, have some sort of recourse & may very well win some money.

You are absolutely right on about what this case should be about.

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Originally Posted by Kwizzy

I would think that these former players have a case to some extent at least.

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They absolutely have a case, no question. I'd just like to see common sense prevail here. I'd love to see scholarships re-written to include an endorsement of the use of "likenesses" going forward, and for all players who were affected previously, a small amount ($500 per year) be awarded to them with the stipulation that accepting the money makes them liable for their tuition. I know it won't happen that way (it makes too much sense), but that's the way I'd like to see it.

One day, when I am King.... :P

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Originally Posted by Kwizzy

It's not really the football players problems that these schools have chosen to fund sports that do not make money though is it?

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No. It's not their problem, or their fault. That belongs solely to Women's Lib.

No, you're right, Kwizzy. I should have clarified that my thoughts on financial ramifications were meant more for the court of public opinion (those who want the blood of the NCAA) and not the actual court case.

I can see me now on t.v.

"Has your likeness been used without your permission?" "Are you a has been athlete that never paid attention in school and when your pro career didn't pan out it forced you to work at Mc Donald's?" "Call me you may be entitled to compensation....."

Sometimes I wonder why I even bothered graduating with honors from college and law school to join such a sleezy "profession". :smh:

Yeah, I think we all agree on what we'd like to see happen. I was really just looking at more what I think will happen.

The closest thing we have to an update so far, from Gamasutra:

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First Amendment arguments once again took center stage during an appeals court discussion of two related lawsuits regarding the unauthorized use of player likenesses in EA Sports games.

Electronic Arts today asked a federal appeals court to throw out a lawsuit brought by former Arizona State quarterback Sam Keller and other NCAA players regarding use of their images in the company's NCAA sports games.

The company reprised First Amendment arguments that were overruled by a lower court judge roughly one year ago in arguing games are being held to a different standard than works in other media.

“As applied by the district court, the test arguably would not protect any expressive work that uses a person’s actual name or realistic likeness, including films like Forest Gump, The Aviator, and Boys Don’t Cry,” the company told a three-judge panel today, as reported by Bloomberg.

The court also heard an appeal in a related case brought by former Cleveland Browns player Jim Brown over use of his likeness in the Madden NFL series.

A lower court judge dismissed Brown's case in 2009, arguing that the Madden games are "expressive works, akin to an expressive painting that depicts celebrity athletes of past and present in a realistic sporting environment."

But Brown argues that ruling relied on an improper precedent set by a film based on the lives of Fred Astaire and Ginger Rogers, with facts significantly different from those in his case.

Video games are also at the center of a case involving proposed restrictions on the sale of violent games in California, which is currently being considered by the Supreme Court.

A three-judge panel from the federal ninth circuit court of appeals will rule on both EA cases.

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I don't have much problem with the "video games are art" argument ... but putting Madden akin to an expressive painting (which, last I checked, you can't reasonably make a painting of Jim Brown without his permission) is a stretch.

Listening to ChrisS from OS on the Lavar Arrington Show (radio) and an excellent point was brought up... the movie W. Guaranteed that George W. Bush did not allow his likeness yet that movie was made and as far as I'm aware, nothing ever came of it.

You can listen to his segment of the show here:
http://washington.cbslocal.com/?podc...CBS.WASHINGTON

No real news coming out of it but just a summation and a discussion about it.

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Originally Posted by gschwendt

Listening to ChrisS from OS on the Lavar Arrington Show

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Chris S being on a local radio show here is very surreal to me.

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Originally Posted by steelerfan

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.

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If you want to play college football 99% of athletes don't have a choice. How many of those kids could afford to go to those schools without the scholarship? Saying a kid has a choice in this matter is really unfair. They don't.

Now many of you make the point that a scholarship is worth a lot of money. It is but that same scholarship has been the standard for years despite the phenomenal growth in revenues. I think it's completely fair for a college football athlete to wonder if they deserve more, especially since the average player still has to cough up an extra $4000 per year because it's not a true full ride.

Cdj, I don't care if a report comes out and says only 14 schools made money last year with their athletic department. If that's true then why does every BCS school pay their head coach close to $1 million with the average SEC school paying about $2.5 million? If schools aren't making enough money then it's time to cut the salaries of these overpaid coaches rather than say we can't give any more to the athletes or cut other programs. It's an extremely hypocritical stance, especially when football is making so much money and everyone else from coaches to ADs have seen their share go up at an incredible rate, more than the student's scholarship value.

I hope these guys lose but this is

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Originally Posted by Rudy

If you want to play college football 99% of athletes don't have a choice. How many of those kids could afford to go to those schools without the scholarship?

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Exactly right. So, how about they quit looking a gift horse in the mouth and take advantage of the opportunity they're blessed with? They are given an education that will make them money for the rest of their lives. Instead of seeing incredible opportunity in that, they piss it away and look for the next handout. Again, I have no sympathy.

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Originally Posted by Rudy

Now many of you make the point that a scholarship is worth a lot of money. It is but that same scholarship has been the standard for years despite the phenomenal growth in revenues. I think it's completely fair for a college football athlete to wonder if they deserve more, especially since the average player still has to cough up an extra $4000 per year because it's not a true full ride.

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I would debate this point with you Rudy... One of my good friends played for Nebraska, 4th stringer. Came from a non-wealthy family. Had a really nice 3 Bedroom apartment to himself, new car, always went out... No job. I promise you they get plenty of $$$ from their scholarship & their "housing allowance" etc....

Also, the value of a scholarship has risen with the cost of attendance for these universities over the years so it's not exactly the "same scholarship" but I do see your point in that, comparing the cost of attendance increase to the revenue growth is not exactly apples to apples. I would say that a full ride scholarship with all of the amenities that comes with as well as a shot to enhance your skills enough to earn a ridiculously high paying and glamorous career is more than enough compensation.

Here is the podcast from the 9th Circuit hearing. Pretty interesting.

http://www.ca9.uscourts.gov/media/vi..._id=0000007013

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Originally Posted by HuskerBlitz

Here is the podcast from the 9th Circuit hearing. Pretty interesting.

http://www.ca9.uscourts.gov/media/vi..._id=0000007013

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Thank you for posting that, HB. Good listen.

IMO, and CLW certainly knows better than I do, Keller's camp is gonna have to come much stronger at any future proceedings.

I hope someone makes a not-so-flattering movie about Keller just to piss him off. After all, his attorney said movies are fair game. :P

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Originally Posted by steelerfan

Thank you for posting that, HB. Good listen.

IMO, and CLW certainly knows better than I do, Keller's camp is gonna have to come much stronger at any future proceedings.

I hope someone makes a not-so-flattering movie about Keller just to piss him off. After all, his attorney said movies are fair game. :P

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I would love that.

Also, I think EA's lawyers won that battle. They brought up a lot of good points. Granted, I don't know the law as well as others, but by just listening I think EA brought up enough issues. I definitely can see how the video game can be called creative and interactive. I also LOLed at Keller's lawyers bringing the height, weight, etc of Keller then saying it wasn't the same type of facts as statistics. Both can be found in any media source like baseball stats.

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Originally Posted by HuskerBlitz

Both can be found in any media source like baseball stats.

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Yeeeeeeeeeeeep. As far as I'm concerned, the only difference between the use of players' "likenesses" as far as NCAA is concerned and the recent case involving the MLB and fantasy baseball is equipment and things like skin color/hair. Everything else, numbers, height, weight, is all stats.

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Originally Posted by HuskerBlitz

Here is the podcast from the 9th Circuit hearing. Pretty interesting.

http://www.ca9.uscourts.gov/media/vi..._id=0000007013

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Awesome. Nice find & thanks for sharing!

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Originally Posted by Rudy

Cdj, I don't care if a report comes out and says only 14 schools made money last year with their athletic department. If that's true then why does every BCS school pay their head coach close to $1 million with the average SEC school paying about $2.5 million? If schools aren't making enough money then it's time to cut the salaries of these overpaid coaches rather than say we can't give any more to the athletes or cut other programs. It's an extremely hypocritical stance, especially when football is making so much money and everyone else from coaches to ADs have seen their share go up at an incredible rate, more than the student's scholarship value.

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I agree 100% with you on that. The college athletics arms race is driving more schools into the red and putting more space between the have and have-nots. Though, I do think it's al least worth nothing that despite the huge money involved all around (TV deals, BCS, etc.), many schools aren't making money. Though, again you are right that poor financial management has a lot to do with that.

Paying top dollar for a coach is an investment. It's easy for me to see that these schools are looking around at the financial climate and noting that many schools are losing money. We can invest in a coach who gives us a chance to be in the black, or we can accept being in the red.

I would liken it to the money EA invests in licensing. It's a big investment that you hope pays for itself and makes you money on top of it.

Court Dismisses Complaint Against EA Sports In Ed O'Bannon Licensing Case

A U.S. District Court in California earlier this week dismissed a complaint against EA Sports in the Ed O'Bannon licensing case. The former UCLA star sued EA Sports, the NCAA and the Collegiate Licensing Company in '09 on the grounds they were using his image and likeness without his consent, and the suit later grew into a class action involving Basketball HOFer Oscar Robertson among several others. Judge Claudia Wilken for the U.S. District Court for the Northern District of California dismissed the complaint against EA Sports, ruling, "This purported conspiracy involves Defendants' concerted action to require all current student-athletes to sign forms each year that purport to require each of them to relinquish all rights in perpetuity for use of their images, likenesses and/or names and to deny compensation 'through restrictions in the NCAA Bylaws.' The Consolidated Amended Complaint, however, does not contain any allegations to suggest that EA agreed to participate in this conspiracy." Wilken denied separate motions from the NCAA and CLC to dismiss claims against them, and those will continue to proceed.

So this means.......????? Besides no one really won

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Originally Posted by oweb26

So this means.......????? Besides no one really won

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Trying to find the opinion/order b/c that small blurb really doesn't make any sense.

As an uneducated person, to me it sounds like that particular judge found that EA SPORTS is not at fault for using player likeness and therefore no harm will come to them in that lawsuit. However, since the NCAA & CLC are the ones that handle the actual licensing terms, then they would be the ones that would be at fault if the judge decides there is fault to be had.

Obviously there is still the Keller lawsuit and even the O'Bannon lawsuit may result in the NCAA no longer being able to handle player names/images/likenesses the way they currently do which would obviously in-turn effect EA.

To me, all this was just failed athletes trying to get an easy cash grab.

Still looking for the full opinion/order. However, this appears to be key:

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The Consolidated Amended Complaint, however, does not contain any allegations to suggest that EA agreed to participate in this conspiracy

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Basically this doesn't mean/resolve anything. In a Motion to Dismiss under Rule 12 of the Federal Rules of Civil Procedure, a Court simply looks at the Plaintiffs' Complaint and assumes EVERYTHING in that Complaint is true and then looks to the law to see if a valid claim under the law has been made.

Here, O'Bannon's lawyers for whatever reason (possibly mal practice - perhaps I should hit up O'Bannon so he can sue his sleezy lawyers) did not include an allegation that EA agreed to participate in the conspiracy. Therefore, O'Bannon's lawsuit against EA cannot proceed because he has failed to even allege a valid claim under the law.

If anyone find's a link to the Opinion/Order I would be more than happy to read it and try to analyze it and break it down for everyone.

EDIT: As best I can currently tell the O'Bannon lawsuit is ENTIRELY different (legal theory wise) from the Keller lawsuit. They have been consolidated by the Court (most likely for discovery reasons only). However, unless I am missing something this Opinion will have ZERO affect on the Keller "likeness" lawsuit.

I think CLW should have his own avatar. "Resident Lawyer" under his regular avatar :D

CLW, not sure if this will help or not but here's another link
http://www.law360.com/topnews/articles/242837

At the bottom it says you can "view more details and drill down deeper, take a free trial now."

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Originally Posted by JBHuskers

I think CLW should have his own avatar. "Resident Lawyer" under his regular avatar :D

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I'm just glad he is moving to Houston. I could use an attorney in this town who is on my side. :nod:

I'm tempted to use my Federal Bar License ID to log in and get the opinion. The problem is it bills my current firm for access to the documents. :smh:

So far all I can gather is:

#1- EA's motion to dismiss was granted on O'Bannon's antitrust claim. This would NOT stop O'Bannon (or someone else) from filing the same lawsuit against EA again and actually allege EA agreed to participate in the alleged conspiracy.

#2 - The Keller "likeness" issue against EA is still very much in play.

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Originally Posted by gschwendt

At the bottom it says you can "view more details and drill down deeper, take a free trial now."

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All the sites I visit that say stuff like that are NSFW.:smh::o

I also vote for clw resident lawyer tag.
I am glad to know I wasn't the only one where it didn't really make sense

Sent from my PC36100 using Tapatalk

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Originally Posted by gschwendt

CLW, not sure if this will help or not but here's another link
http://www.law360.com/topnews/articles/242837

At the bottom it says you can "view more details and drill down deeper, take a free trial now."

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I'm heistant to sign up for any free trials b/c it would require me to remember to unsubscribe shortly.

This (if true) is interesting:

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However, the judge granted the players two weeks to amend their antitrust allegations...

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In English, yes EA won the motion to dismiss on a "technicallity" (basically O'Bannons lawyers are idiots and committed mal practice). However, rather than hurt those poor lawyers we give the lawyers another chance not to F it up. I would anticipate O'Bannon filing another Amended Complaint which contains an allegation that EA was complicit in this "conspiracy" which will solve the problem (at least temporarily).

I was able to find an older Order by the Court in the O'Bannon case. This may help explain a few things. I assume that not much about O'Bannon's claim have changed since the previous Order.

O'Bannon's lawsuit alleges violations of the Sherman Act (Federal antitrust). (He also has/had an "unjust enrichment" state law claim which I'll ignore here as I don't think it was subject to today's ruling)

In order to make a valid claim/win under the Sherman Act O'Bannon has to allege (and eventually prove):

#1 - A Contract OR Conspiracy;

#2 - That unreasonably restrained trade (think commerce i.e. buying stuff);

AND

#3 - In Interstate Commerce (Congress/Federal Government can ONLY regulate "interstate commerce" under the Constitution - this is known as the "Federal Jurisdictional Hook" this is at the heart of "Obamacare" litigation) (in this case basically it means that the contract/conpiracy must restrain trade between people/companies in different states)


I am guessing at some point EA was amended into the O'Bannon action b/c the order I am reading does not mention (or list) EA as being in the O'Bannon case but does mention the Keller lawsuit being consolidated with it.

The apparent problem for O'Bannon today was that his lawyers failed to allege #1 (above) against EA. His lawyers did allege #1 against the NCAA and CLC so those claims move forward.

Interestingly (to me anyways and as an aside), you will recall me saying O'Bannons lawyers committed malpractice b/c they failed to allege #1 against EA. Well they also somewhat irked the judge in the past by FALSEY quoting "law" in support of their argument.

A foot note in the opinion I read states:

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The Court notes that O'Bannon purportedly quotes language from [case] however, the quoted language does not appear in that case. O'Bannon [lawyers] must ensure that he [they] accurately represents case law.

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So... in sum O'Bannon (at least) is represented by lawyers who cannot even ensure they allege a proper case against EA and they have attempted to mislead OR do not bother to ensure they accurately quote the law.

Yet these bums have a J.D. :down: :smh: :mad: :sick:


In any event, today's ruling is a SMALL victory for EA. IF the Court granted O'Bannon the ability to amend his Complaint (as reported above) O'Bannon needs to only allege #1 (above) as to EA to bring EA back into his case for Sherman Act violations. Moreover (and perhaps more importantly) I do NOT see this ruling having ANY ramification on the Keller "likeness" issue. The Keller "likeness" case is ongoing and up on appeal (the last time I heard checked).

Basically, I would hope O'Bannon's lawyers could get it right this time allege a valid claim under the law and EA will be back into the case in short order. Whether O'Bannon will win in the end is another matter to be determined later. NOTHING, about today's ruling really gives any incite as to the Judge's thought process on that. Perhaps, if I saw the oral argument you could tell what the Judge thought of the case as a whole. However, the only issue today was simply did O'Bannon allege a valid claim under the law against EA. He clearly did not and the Court has apparently given him another chance to do so.

I really see an easy workaround for this. Pay the coaches for their likenesses and model the teams after their style for the upcoming year.

You could build a roster with the exact same ratings we have now, then just randomize year, ethnicity, number and name.

Oregon doesn't have a fast HB because its lamichael james, they have a fast HB because that's what Chip Kelly is planning for in the fall. If he's white, a freshmsn, and #26 how can you ever say it's supposed to be him?

It will allow online play to continue unscathed, offline who cares, we all use custom rosters anyways...

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Originally Posted by JBHuskers

I think CLW should have his own avatar. "Resident Lawyer" under his regular avatar :D

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Is there a resident athletic trainer designation? I can talk about concussions and injury issues and whatnot. :D

Thanks CLW for breaking things down for us. Really appreciate your input and help in trying to understand everything.