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EA Sports Video Game NIL Deals Could Hurt NCAA in Court

michael mccann
·4 min read

As gamers eagerly await the release of EA Sports College Football 25, the straightforward process by which EA is negotiating for the use of players’ names, images and likenesses is a problematic development for the NCAA as it defends against antitrust claims of unlawfully suppressing economic opportunities for college athletes.

Last Thursday, EA Sports shared details about the game, which is expected to release this summer. The game, the first EA Sports college video game in 11 years, will feature more than 11,000 players from 134 FBS teams. Players who agree to appear will be paid $600 and receive a complimentary copy. Players who don’t agree won’t appear, with generic avatars replacing them. The game also won’t allow gamers to edit the generic avatars to reflect the names and likenesses of real players.

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That’s it. This simple and orderly process could have been used in the past, and gamers could have enjoyed more than a decade of games. In a different timeline, Heisman Trophy winners Kyler Murray, Joe Burrow and DeVonta Smith would have all been playable characters in college games.

But that’s not what happened. Until the NCAA adopted an interim NIL policy in 2021, NCAA rules forbid players from profiting from their right of publicity, which protects the commercial use of identity. The NCAA and its members could profit from players’ identities, but the players could not.

Over a 20-year stretch, EA published college sports video games containing the likenesses of real players without their names and did so without the players’ consent. EA was hampered by NCAA rules; if EA had paid a player, the player would have forfeited his NCAA eligibility. Worse for EA, the company would have angered the NCAA, which EA needed to license the use of teams’ logos, colors and other intellectual property.

There was an easy fix: The NCAA could have lifted rules barring players from using their right of publicity. EA—which has paid NFL, NHL, NBA and WNBA players to appear in games—would have then offered college players compensation to appear in its games.

But the NCAA wouldn’t budge, setting the table for Ed O’Bannon, Sam Keller, Ryan Hart and others to sue over EA video games that used players’ likenesses without permission or compensation. EA offered a series of legal defenses, including that expressions in video games were protected by the First Amendment and that the likenesses of players is primarily a reflection of video game programmers.

The U.S. Courts of Appeals for the Ninth and Third Circuit disagreed. EA and O’Bannon, meanwhile, reached a settlement in 2014 that led to about 29,000 players receiving as much as $7,200, and on average $1,200, for their appearances in games.

EA stopped making games—despite numerous gamers clamoring for them—since it could not obtain what it needed: the lawfully obtained intellectual property of both the NCAA (and its members) and the players.

Fast forward to today. EA has negotiated with players without running afoul of post-2021 NCAA rules.

Some have questioned why players will be paid the same amount when some are more prominent and marketable than others. The legal answer is EA is the offeror and can set the terms of its offer, and players have the right to reject the offer. EA, which is using OneTeam Partners to facilitate licensing agreements with players, likely wants to avoid the headaches and inefficiencies of individually negotiating with more than 11,000 players. EA also seems to be banking on the desire of players to appear in the game, even if the compensation is modest.

While the news is good for EA, it’s less so for the NCAA. There are several litigations, including In Re College Athlete NIL Litigation (a.k.a. House v. NCAA), Tennessee & Virginia v. NCAA and Carter v. NCAA, which at their core allege the NCAA and member schools violate antitrust law by conspiring to unreasonably limit economic opportunities for athletes. Longstanding NCAA legal defenses, such as the claim that amateurism rules “protect” college athletes from exploitation and help distinguish the product of college sports from what pro sports offer, are being aggressively criticized by judges as unpersuasive and circular. It’s why Justice Brett Kavanaugh went so far as to write in NCAA v. Alston “the NCAA’s business model would be flatly illegal in almost any other industry in America.”

Expect EA’s use of simple contract law principles to negotiate with college athletes to be mentioned in court filings to argue athletes—and consumers—have unnecessarily denied games by NCAA rules.

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