College Stars Sue EA For Misappropriation July 7, 2009
Last week, The New York Times ran a story on College athletes and video games. We had slated to cover it on Podcast #6, but we scrapped it due to our self-imposed time constraints. Here’s the breakdown.
The highlight of the story is Sam Keller, a former National Collegiate Athletics Association (NCAA) football player who played for the Arizona State University before transferring to Nebraska State in 2006. Mr. Keller is upset because Electronic Arts recently released “NCAA Football,” which is available on consoles and PCs. He believes his “likeness” has been used within the game, even though he has not been paid for any such appearance or commercial endorsement. The twist to the story is Mr. Keller’s name was never used in the game. However, an Arizona player donning the jersey number 9, and of the same approximate “height, weight, skin tone, hair color and home state” does. Not only do the stats match up, but the digital player also has similar mannerisms and playing styles to Keller when the character is used in game.
The NCAA requires all college athletes to sign a form that prohibits athletes from financially benefiting from their namesake (NCAA Bylaw 12.5). This is generally meant to respect the boundaries between professional and amateur athletes. The rule effectively prevents a student-athlete from selling the right to third parties to market their images for things like endorsements, photo ops, signatures, fictional works, and of course video game deals.
While the majority of college athletes may be unrecognizable, a large number reach collegiate stardom. They become the hot topic of debate on media reports, both in television and print media. Despite celebrity status, the NCAA owns and actually licenses the rights to the video game companies’ use of sports team names and logos. So an entity is making money, but it’s not the players. As you may imagine, this is starkly different than how professional athletes are treated. The professionals get a share of licensing fees for use of their names and likeness.
The basis of his claims against EA and the NCAA come from privacy and publicity law. For Keller to win, he would have to prove that the NCAA or Electronic Arts used his likeness–e.g., picture, name, identity, etc–for the purpose of commercial exploitation without consent and without a recognizable defense to use. Certainly the existence of a contract which authorizes or delegates such uses would be a reasonable defense in this case.
Due to the binding nature of the NCAA agreements and bylaws, college athletes lose their rights to pecuniary arrangements. At law, this means that they might not have a legally recognized remedy against entities like Electronic Arts. On the other hand, the fact that players cannot enter into such an agreement may not preclude them from recovering damages when their likeness is misappropriated. The players may be able to stop the use of their likenesses without their consent. Nonetheless, Keller has filed a class action lawsuit against Electronic Arts and the NCAA (Keller v. Electronic Arts, Inc; NCAA, Collegiate Licensing, N.D. Cal. CV-09-1967-cw), naming all similarly situated collegiate athletes, alleging commercial deprivation of rights of publicity, misappropriation of likeness, unfair competition, unjust enrichment, and breach of contract. If successful, the suit would yield monetary damages for the use of player images and possibly force the NCAA to change their rules and bylaws.
The NCAA has vocally responded that the suit lacks merit and doesn’t violate their own rules. A legal response has yet to surface, but the NCAA will certainly have some good claims under contract law– to some extent, the rules and bylaws may constitute a binding contractual relationship, and effectively limit the players ability to recover. Additionally, they may also claim the rights that were licensed did not include player likenesses, only sports logos and teams. Perhaps Electronic Arts is to blame for the additional similarities? As with all licensing schemes, there is undoubtedly a contract at issue in the license agreement, and it would likely speak (at least to some extent) about the actual content that was licensed. Provided that the suit continues to procedurally advance, such a document will surface in discovery.
No related posts.
