Electronic Arts, or EA, is well known for its sports games. But does this mean that they have the right to use digital incarnations of well-known players in their acclaimed titles? In addition to their sports tie-ins with the NBA and the NFA, EA also published college basketball and football titles branded and approved by the NCAA (the National Collegiate Athletic Association).
Former college basketball player Edward O’ Bannon decided to become the lead plaintiff in a class action lawsuit against EA when he saw his image from his time with the UCLA team in 1995 being used in a video game without his permission. The suit also included former Boston Celtics player Bill Russell.
The main motive behind the lawsuit was to seek an injunction to allow colleges to pay football and basketball players a fair wage. As ESPN rightly states, the NCAA class college players are amateurs (unlike the national teams), so they are only entitled to basic training and lodging and do not get paid.
Electronic Arts withdrew as a defendant and settled out of court for $40 million. The NCAA franchise of games is now on hold, and its future is uncertain.
On August 8, 2014, Judge Claudia Wilken ruled that the NCAA must allow individual colleges to pay their athletes, and even considered whether or not their likenesses could be used in a video game. She stated:
“The high coaches’ salaries and rapidly increasing spending on training facilities at many schools suggest that these schools would, in fact, be able to afford to offer their student-athletes a limited share of the licensing revenue generated from their use of the student-athletes’ own names, images, and likenesses. Accordingly, the NCAA may not rely on increased output as a justification for the challenged restraint here.”
On appeal, the court affirmed that the NCAA regulations needed antitrust scrutiny, but rejected the findings that athletes should be paid more than the cost of basic board and lodgings. In summation, Circuit Judge Bybee said:
“The Rule of Reason requires that the NCAA permit its schools to provide up to the cost of attendance to their student athletes. It does not require more.
We vacate the district court's judgment and permanent injunction insofar as they require the NCAA to allow its member schools to pay student-athletes up to $5,000 per year in deferred compensation.”
The plaintiffs appealed to the Supreme Court, which denied to conduct a judicial review of the case (AKA a certiorari) on October 3, 2016. This legal matter demonstrates whether or not an athlete at a college or university should be paid as if they were a professional. It also shows that sometimes video games companies will try to shy away from controversy, given Electronic Arts’ decision to settle out of court.