For me, O’Bannon v. NCAA (previously mentioned on this blog here and here) was a landmark case that impacted my daily life. Sure, it dealt with the NCAA profiting from the image and likeness of its uncompensated student athletes, but to me (not a college athlete) it just meant the death of my favorite video game. After the court’s decision, EA Sports discontinued their successful line of College Football and College Basketball games, thereby ending an era of building fictional dynasties and competing for virtual Heisman trophies. While the game has been kept on life support by a few dedicated individuals, the masses have lost access to the once popular game. (Look at the price for EA Sports NCAA Football 2014, it might surprise you.)
Hope for a second coming of EA Sports’ college games was recently restored when the NCAA caved to the pressure that it was facing from state legislatures in regard to players being allowed to profit from their name, image, or likeness. On September 30, 2019, California Governor Gavin Newsom signed the Fair Pay to Play Act, which intends to allow student athletes to profit from their name, image, and likeness beginning in 2023. The NCAA vehemently opposed this legislation; but with other states (Colorado, Florida, Maryland, Nevada, New York, North Carolina, South Carolina, Pennsylvania, Minnesota and Washington) considering similar legislation, the NCAA reversed course.
On October 29, 2019, the NCAA released a statement announcing that leaders from each of the NCAA’s three divisions would be drafting rules concerning the athlete’s ability to profit from their likeness. The NCAA announced that the new rules must be made “in a manner consistent with the collegiate model.” The main focus of the potential rule change is about allowing athletes to receive endorsement and advertisement deals, but EA Sports and their dormant franchise could fall under the umbrella of the new rule as well.
Other sports video games obtain the rights to use the names and likenesses of professional athletes through their respective player associations. For example: Madden has a deal with the NFLPA, which allows it to recreate the rosters with actual players; and a deal with the NFL for the use of its teams (each deal is reportedly worth $50 million). The obvious problem for EA Sports, when it comes to licensing college players, is that there is no universal players association for the NCAA.
Luckily, EA Sports has tackled a similar problem with its FIFA franchise and largely succeeded. The FIFA game populates rosters with actual players from clubs all around the world. EA Sports has hundreds of deals with both leagues and player associations spanning multiple continents. I think it is fair to say that the player associations of Serie A, MLS, and Campeonato Brasileiro are not identical in form or function.
The realists in the room (Jay Bilas) are likely correct in believing that the NCAA does not truly intend on changing up their current (free labor? extortion based?) model. But those of us that retain hope, in a new version of EA Sports College Football and Basketball, see a door beginning to open. Tough to say how EA Sports will negotiate licensing agreements in the future, perhaps conference by conference with corresponding player representatives or school by school with their player representatives. Regardless, the ball that started rolling with O’Bannon has picked up steam, and hopefully next time a College Sports video game is released, the players will get their piece of the pie.
The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.