How the Proposed College Football Video Game Avoids Legal Trouble
For those who believe that college sports video games had been doomed by past court rulings, think again.
On Monday, IMV Gaming announced plans to publish a college football video game, titled Gridiron Champions, in 2020. The game will be available on PlayStation, Xbox and Steam platforms and will sell for $59.99. Gridiron Champions will not feature real universities or players, but will include 126 “customizable” teams. It will be the first college sports video game since Electronic Arts published NCAA Football ‘14 in July 2013.
College sports video games have been off the market by choice, not by law
A common, but inaccurate, assumption is that Ed O’Bannon’s legal victory against the NCAA somehow forbids video game companies from publishing college sports games. As O’Bannon explained in his book that was recently excerpted by SI, this assumption misses the mark on several fronts.
Back in 2009, O’Bannon sued Electronic Arts, the NCAA and the NCAA’s licensing partner, Collegiate Licensing Company (CLC). O’Bannon brought the case after he noticed that EA’s NCAA Basketball 09 game featured him as a player, albeit without his name, on one of its classic teams. The digital avatar of O’Bannon, who was college basketball’s player of the year in 1995, looked just like him when he played on UCLA’s 1994–95 national championship team. The avatar featured O’Bannon’s jersey number, stood 6'8" and weighed 222 pounds, used a left-handed shot and played power forward. It also matched O’Bannon’s unique basketball skills and talents.
O’Bannon raised two claims. First, he argued that the NCAA and its member schools and conferences had unlawfully conspired under federal antitrust law to harm him. They did so, O’Bannon argued, by requiring that college football and men’s basketball players forgo control of the commercial use of their name, image and likeness rights as a condition of NCAA eligibility. These identity rights were then used to create video games, television broadcasts of classic games, DVDs commemorating championship seasons and other licensed products for which the athletes could receive no compensation under NCAA amateurism rules. Second, O’Bannon maintained that his “right of publicity”—which generally includes a person’s name, likeness and other distinguishing characteristics—was unlawfully exploited in video games and other NCAA-licensed products.
As pretrial discovery progressed, interesting emails and other electronic evidence surfaced. Most critical were records and testimony showing that EA wanted to buy the complete identities of players. EA preferred that players’ avatars feature their actual names in addition to other demographic traits. Such an approach would have expanded the game’s rosters of current and classic teams and made EA Sports games more appealing to gamers and other consumers.
This approach made sense since EA doesn’t have a stake in amateurism. Stated differently, whether or not college players are paid is not of EA’s concern. Like other publishers of sports video games, EA—with its trademark slogan “It’s in the game’’—simply wants to sell the most realistic and comprehensive sports games possible. Those are the kinds of sports games that tend to sell best.
As a practical matter, EA couldn’t pay for players’ complete identities because (as noted above) NCAA rules forbid college athletes from receiving such pay. Had EA nonetheless paid the players, the NCAA would have deemed those players ineligible. Also, the NCAA would have stopped licensing the intellectual property of schools, including school names, logos and colors, to EA. It’s even possible that the NCAA would have sued EA for breach of contract or tortious interference on grounds that paying players damaged the relationship between the NCAA, schools and student athletes. Similar dynamics were at work in EA’s relationship with CLC, which licenses on behalf of over 200 colleges, universities, conferences, bowl games and the NCAA itself. CLC was inclined to maintain its mutually beneficial relationship with the NCAA.
O’Bannon’s case went to trial in 2014, one year after the last college sports video game was published. The case formally ended in 2016, when the U.S. Supreme Court declined to a review a decision by the U.S. Court of Appeals for the Ninth Circuit in favor of O’Bannon. O’Bannon proved that certain NCAA amateurism rules violate federal antitrust law. This is because those rules reflect competing businesses—member colleges and conferences of the NCAA—joining hands to prevent men’s basketball and football players from receiving the monetary value of their names, images and likenesses.
EA avoids trial and signs settlement—a settlement that does not prohibit new games
EA and CLC were not part of the 2014 trial nor its appeals. Rather than risk a trial, EA and CLC negotiated a settlement with O’Bannon shortly before the trial began. As part of the deal, EA agreed to pay approximately $40 million to more than 29,000 current and former players. Each player then received up to $7,200 (the payments averaged out to $1,200 per player), depending on the number of games in which they appeared and whether they were closely identified in those games.
To be clear, the settlement did not—and does not—prohibit EA from developing and publishing new college games or related intellectual property. EA has declined to create new college games presumably because of one or more of the following reasons:
• EA would like to pay to use real players’ identities but the NCAA is unwilling to let EA do so.
• EA does not want to risk creating a game with fictitious players, either because the game would be insufficiently marketable or because real players could sue EA and argue that the fictitious players are based on real players.
• EA could try to create a game with real players and fictitious teams, but players may worry that licensing their name, image and likeness to EA would lead the NCAA to deem them ineligible; also, if the “fictitious teams” still somewhat resemble real schools, the NCAA, CLC and the member schools could sue EA under rights of publicity claims.
• While IMV Gaming apparently forecasts sufficient value from creating a video game with fictitious players and fictitious teams, EA might not. Such a game would likely not comport with EA Sports’ product line of “realistic” sports games.
“Customization” of players and teams might present legal problems
EA is likely also mindful of the potential legal risks from allowing gamers the option to “customize” certain aspects of the game. IMV Gaming promotes that Gridiron Champions will allow gamers “the opportunity to customize player uniforms, stadiums, fan atmosphere and recreate pageantry though this unique college football experience.” Although the company’s statement doesn’t explicitly say that the names, appearances and other characteristics of avatar players and avatar teams can be edited, the technology is clearly possible for that to occur.
In fact, such technology existed over a decade ago and played an important role in the O’Bannon case as well as in the accompanying video game lawsuit brought by former Arizona State and Nebraska quarterback Sam Keller against EA (Like O’Bannon’s claims against EA, Keller’s claims settled out of court). Gamers who played EA’s NCAA Football games could edit the avatar players’ names so that those avatars’ names matched the real life players on whom they were based. Once the real players’ names were included, the video game’s announcers would say those names. Gamers could also download rosters of real players names created by other gamers.
These “end-around” practices were obviously not software glitches or programming errors—they were intentional designs by EA. These end-around practices were also well-known to gamers, who were more likely to buy EA games knowing that they could edit the players. Attorneys for O’Bannon and Keller were well aware of them and used them to argue the games clearly featured avatars based on real players.
A decade later, EA might feel trepidation about letting gamers edit players’ uniforms to include real players and teams that have not signed license agreements with EA. Such an editing option could lead real players and real schools to sue. In such a case, they would argue that permitting such a feature constitutes a deceptive and fraudulent practice in relationship to the rights of publicity and other intellectual property protections enjoyed by real players and real schools.
On the other hand, IMV Gaming may be better positioned than EA was to argue that its editing options would not run afoul of intellectual property laws. Unlike EA’s college games, Gridiron Champions is unlikely to include any default resemblance between avatars and real players and real schools—it seems as if the avatar players and schools in the game will be entirely fictitious from the get-go. This could help IMV Gaming contend that any editing embodies what in law is called “significant transformative elements”: the editing of players in Gridiron Champions reflects more of the creativity of the gamer than the attributes of any real life person and such editing is protected by the freedom of artistic expression as encompassed by the First Amendment and implementing case law.
The easiest way to bring back college sports video games: sign licenses with the players
The simplest solution for gamers to once again play college sports games would be if the NCAA allowed college players to receive what would likely be a small amount of money—perhaps several thousand dollars each—for the use of their names, images and likenesses in video games published by EA and other companies. Such an approach wouldn’t impose a cost on the NCAA or member colleges since the video game publisher would pay the players (or pay a trade association that represents the players).
There is no indication, however, that the NCAA is willing to relax its rules. Until then, college sports gamers will likely remain dissatisfied—unless Gridiron Champions and other games like it fill the void.
Michael McCann is SI's legal analyst. He is also the Associate Dean for Academic Affairs at the University of New Hampshire School of Law and co-author with Ed O'Bannon of the new book Court Justice: The Inside Story of My Battle Against the NCAA.