The Brandr Group hopes to bolster its federal lawsuit against Electronic Arts over the inclusion of players’ and schools’ names, images and likenesses in EA’s first college football video game since 2013.
Once again, college athletes are bystanders in a legal process where their right to pay is at stake.
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In a California court last week, Brandr filed an amended complaint and opposition briefs to EA’s motions to dismiss and stay discovery. In June, Judge Haywood Gilliam denied Brandr’s petition for a temporary restraining order, noting “there is simply no evidence in the record that the value of the students’ NILs would be diminished by their use in the game.”
Brandr, which says it has agreements with 65 colleges with NCAA football programs and with 3,735 players, insists it has the contractual right to represent schools and players in negotiations for inclusion in EA Sports College Football.
The NIL agency wrote that most of its contracts “specifically identify video games” and call for athletes to receive 70% of royalties from third-party licenses in video games and trading cards. Brandr claims EA unlawfully interfered, including by (as Brandr tells it) communicating to schools they “do not need to honor the exclusivity provisions” and that “it is not a violation of [Brandr’s rights] for EA to contract directly with [college players].”
Brandr also criticizes EA for a plan to pay each athlete “just $500,” saying that amount is “well below market value for the use of their NIL in the game.” Brandr compares that figure with what it has “heard” from partner schools: EA is allegedly offering to pay schools 10% of the game’s revenue and guaranteed payments “ranging from $10,400 to $104,900 depending on variables such as the football program’s prominence, recent national ranking, etc.”
Brandr further warns that, based on its understanding of EA’s strategy, schools will grant “exclusive rights” to EA to use their trademarks and related IP. That arrangement would preempt rival college football video games that could lead to more licensing opportunities for the players.
EA has rebuked these arguments in court filings. Most crucially, EA says it has the right to negotiate with schools and athletes, and that Brandr is outside this bargaining relationship. The video game publisher contends that Brandr can’t “retroactively” change individual contracts EA or its licensing collaborator, OneTeam Partners, negotiates into a group license that Brandr controls.
EA’s approach to licensing isn’t unusual. A “contract of adhesion” or “take or leave it” approach, where a player can accept $500 in exchange for their NIL to appear in the game or decline and not be in the game, is generally lawful in licensing and other types of transactions. EA is the offeror. It can decide what it deems appropriate, fair or profitable. A player is under no obligation to accept the offer.
While $500 might seem low for star college football players, it might seem high for lesser-known players.
Basic economics also apply. If EA finds that $500 isn’t enough to convince enough players to sign, it can offer more. No law compels EA to offer a certain level of compensation, and no law guarantees a player a right to be in EA’s game. This is fundamentally a private transaction.
This debate—EA’s ability to control the terms offered to players, and Brandr’s assertion it controls those negotiations—is a byproduct of the current state of college athletes’ rights. College athletes haven’t been recognized as employees, which under labor law means they can’t form a union. In contrast, players in pro leagues have unionized and their union is their bargaining agent, giving pro players considerable power in negotiations.
The Brandr-EA legal controversy also reflects the peculiarity of college sports, where the labor who drive a multibillion-dollar industry are largely dependent on others’ negotiations.
That dynamic could change, though probably not soon.
Later this year, an administrative law judge could find that USC, the Pac-12 (or Big Ten) and NCAA are joint employers of Trojan football and men’s and women’s basketball players. The NLRB could uphold that finding and appellate courts could do the same. But even if that multi-step sequence concludes with the recognition of college athletes as employees, the sequence would take several years and not resolve before EA’s game is released.
Johnson v. NCAA might produce college athletes as employees, but the litigation is similarly poised to take years.
Power Five conferences could consolidate and form pro leagues where the players are employees and negotiate their rights. But the first mover in that scenario would be conferences and member schools, not the players.
Congress could theoretically pass a law making college athletes employees, but it hasn’t been able to get a much less controversial and narrower topic–NIL–to the floor for a vote.
So as the Brandr-EA battle plays on, the athletes might have a front row seat but they won’t be in the game.