Lawsuit against EA/NCAA over player likeness

[CLW]

Jay Bilas has posted a blog about the "likeness" lawsuit by Keller/O'Bannon against EA and the NCAA.

http://insider.espn.go.com/mens-coll...jay&id=5636365

Jay Bilas is a a Duke J.D. so its actually a pretty good read and makes the case for Keller/O'Bannon and against EA/NCAA.

Note, as a fellow J.D. I disagree with Bilas on his application of the law (which he admits he hasn't read the pleadings). However, I do NOT disagree that the likely result in this case is going to be bad for EA/NCAA and ultimately us as consumers.

In fact, I wouldn't be surprised if Bilas isn't called as a witness (arguably he could even be a defendant in the case). He did voice over work. Hmmm.... maybe if Bilas was on the other side of the "v." his legal view would change. Unfortunately, that's generally how it works in this world.

I've really wanted to do an article on these cases for some time now. I even have a stack of research just sitting in a pile at home with all kinds of funny/interesting cases on the subject.

[JeffHCross]

CLW, your link has two http:// in it.

[CLW]

CLW, your link has two http:// in it.

D'Oh. Fixed.

[Rudy]

It would really suck if the NCAA rosters had to be done completely from scratch. It's hard enough for the roster guys just to edit the names. If this happens EA needs to provide a fully customizable PC interface where people could edit rosters months before the game is released and let people work on them.

CD guys - how worried are the folks at EA over this lawsuit?

[gschwendt]

CD guys - how worried are the folks at EA over this lawsuit?

Even if we knew, we couldn't comment on it.

[CLW]

It would really suck if the NCAA rosters had to be done completely from scratch. It's hard enough for the roster guys just to edit the names. If this happens EA needs to provide a fully customizable PC interface where people could edit rosters months before the game is released and let people work on them.

CD guys - how worried are the folks at EA over this lawsuit?

I have ZERO inside knowledge from EA.

However, they should be very concerned. If O'Bannon and Keller win it will forever change college sports video games as we know it.

IF they win EA will be forced back into GENERIC ROSTERS THAT CANNOT BE EDITED.

The only work around (assuming they win) would be to go to each team and have each player on each team sign a waiver. This of course assumes the NCAA would allow it (which I doubt they would).

This topic is very interesting legally IMO.

Again, I completely disagree with Bilas and the Plaintiffs in this case. However, it looks like they are more likely than not going to win (unless EA is willing take the case up on appeal).

In the end, we could be stuck with NOONE manufacturing a college sports game. I just don't see a market for a NCAA game with bad/inaccurate/generic rosters that cannot be edited. EA could just say F it its not worth the hassle and drop the series.

[Rudy]

Why wouldn't EA be allowed to customize the rosters? Doesn't the PES soccer game allow complete customization without all the licenses? The real problem is that the players are resembling their real life counterparts in every way except their name and picture. Tim Tebow had his correct height, weight, school, throwing hand and rushing and throwing abilities. That's what they are suing EA over. EA would still be able to release an NCAA game with full customization imo. The biggest difference is that all the teams would have truly random players and abilities that would require complete edits which would be a pain in the ass.

Plus, even if the lawsuit wins, those players aren't upset about their likeness being used, they just want a cut of the pie. A union could or a trust fund could be set up for the players potentially. I'm not sure about their amateur status and how that gets affected.

[JeffHCross]

Rudy's right CLW ... unless it was part of the judgement, there's no reason for EA to not allow editing the rosters.

That said, I agree ... if the NCAA loses this lawsuit, it's more likely that we'd see college games get dropped from the major publishers.

[CLW]

Rudy's right CLW ... unless it was part of the judgement, there's no reason for EA to not allow editing the rosters.

That said, I agree ... if the NCAA loses this lawsuit, it's more likely that we'd see college games get dropped from the major publishers.

No b/c any disgruntled former college athlete could still sue EA/NCAA for putting out a game that allows for their "likeness" to be used without their permission.

It's like Napster. They didn't technically violate any copyright laws themselves but their program allowed others to do so.

[JeffHCross]

Right, but there's a lot of "prior art" which allows editing rosters and using legitimate likenesses. Yes, they'd still leave themselves open, and they'd be likely to go to the other extreme in their effort to assume the fetal position ... but there's nothing really that would prevent them from allowing that.

[CLW]

Right, but there's a lot of "prior art" which allows editing rosters and using legitimate likenesses. Yes, they'd still leave themselves open, and they'd be likely to go to the other extreme in their effort to assume the fetal position ... but there's nothing really that would prevent them from allowing that.

Exactly, if EA/NCAA loses this they aren't going to push the envelope any more. Rather, they will just make generic teams/rosters for each school and never have to edit them. The game sales will undoubtedly drop and eventually there are ZERO NCAA video games on the market.

My "solution" is to settle with O'Bannon/Keller and try to keep it quiet so that past athletes do not get word of "free money". Then in the future with NCAA permission send them a contract to sign essentially saying you get paid nothing but if you want your "likeness" in a video game sign here. The athletes that sign get in the game and the ones that don't do not.

[Quest4Gold]

Honestly, this whole thing is a crock. How about all the jerseys these schools sell and they don't get a penny. This is just a way to make some money. Just because their pro careers didn't make them millions, they are looking for a quick buck. When I go to the midnight madness. I have Akron Zips guys lining up with me excited to see themselves in the game.

[Rudy]

Georgia can sell AJ Green's jersey WITH his name on it (they sell 6 different versions apparently) and that's OK. But he sells his game jersey for some money and gets a 4 game suspension. This ESPN article shows that athletes still end up paying thousands of dollars despite a full ride.
http://es.pn/aHIADW

[JeffHCross]

Georgia can sell AJ Green's jersey WITH his name on it (they sell 6 different versions apparently)

FWIW, I have never, never seen a jersey on sale with a player's name on it. I saw something on Sportscenter or elsewhere going over all the different versions of the AJ Green jersey that are on sale ... but I don't recall his name being on them being part of the discussion.

[Rudy]

I could have sworn Tony Barnhardt wrote that they were selling some jersey with a name on it. Either I was mistaken (I refuse to admit this ) or Tony edited after it was released.

http://blogs.ajc.com/barnhart-colleg...-at-a-j-green/

[JeffHCross]

It does say this ... maybe this is what you were thinking of

But when some schools–and I am told that Georgia is not one of them–start putting name on the back on the jersey then you have crossed an ethical line. What the kid did on the field made that jersey more valuable than a generic one. He created that extra value and cannot share in it. So the school shouldn’t share in it either.

I guess it's feasible that someone's doing it, but I have never seen a jersey on sale with a name on it. That violates every part of the NCAA's rules on likenesses.

If you scout around the online websites, there are a lot of sites that will let you put a name on the back of a jersey. But every one of those sites that I've come across specifically states you cannot put the name of a current player, per NCAA rules.

[Rudy]

That's the part that I think he edited. I follow Tony on twitter and read that article when he first posted it. I could have sworn he wrote they were selling 6 different jerseys of his and some had his name on the back. He made a specific point about his name. Maybe my memory is off but the number of jerseys and that he specifically mentioned his name being on the jersey stuck with me because I didn't think colleges put names on jerseys.

[CLW]

Another lawsuit by a former college athlete. I'm telling you every loser that played sports is going to use this as a free check. EA needs a big win here in the courts or NCAA Football may be an endangered species.

http://www.metropulse.com/news/2010/...s-ea-ncaa-sec/

[JeffHCross]

The suit says college athletes’ likenesses and even their jersey numbers are used in video games

Ooh, even their jersey numbers? Seriously, the emphasis was put on the wrong part of that. Jersey numbers are easily the most generic of the college athletes' likeness.

At the very least, I think the part about scholarships will be thrown out (or laughed out) of the building. The likeness/video game argument could have some legs, and the repercussions are huge for the entirety of the NCAA, not just NCAA Football.

[CLW]

Ooh, even their jersey numbers? Seriously, the emphasis was put on the wrong part of that. Jersey numbers are easily the most generic of the college athletes' likeness.

At the very least, I think the part about scholarships will be thrown out (or laughed out) of the building. The likeness/video game argument could have some legs, and the repercussions are huge for the entirety of the NCAA, not just NCAA Football.

Meh, if the NCAA/EA lose this 1st round of lawsuits, I believe the NCAA will just ditch NCAA video games.