Whether he intended it or not, ex-Arizona State/Nebraska quarterback Sam Keller's class-action lawsuit against EA Sports in May really opened up the floodgates for players who resented making zilch from their pixellated doppelgangers in EA's lucrative NCAA Football series. On the heels of Keller's suit, he was joined in a separate action by ex-Rutgers quarterback Ryan Hart and California career passing leader Troy Taylor, who shows up Cal's "All-Time Roster," which subsequently caught the attention of the New York Times, which subsequently published a weekend package on the lawsuits at the start of the month.
As of Tuesday, the campaign added three more dimensions -- basketball, attorneys who do not play and every Division I-A football or basketball player ever, all on the shoulders of one Ed O'Bannon:
Last winter, Ed O’Bannon discovered that a couple of kids down the street didn’t just know the star of the 1995 UCLA national championship team as a friend of their dad, a really tall neighbor or even as a guy who shows up on ESPN Classic every once in a while.
They knew O’Bannon – his tendencies, his number 31, even the mechanics of his lefty jump shot – from playing a video game that featured classic college teams.
"They literally played me on a video game," O’Bannon told Yahoo! Sports on Saturday. "You could play the ’95 Bruins. It didn’t have my name, but it had my number, left-handed, it looked like me. It was everything but the name.
"My friend kind of looked at me and said, ‘you know what’s sad about this whole thing? You’re not getting paid for it.’ I was just like, 'wow, you’re right.' It just kind of weighed on me."
Indeed. Also weighing on him was a request from two high-powered law firms -- between them, Hausfeld LLC and Boies, Schiller and Flexner were involved in the government's antitrust suit against Microsoft and Bush v. Gore and have secured reparations from Swiss banks for Holocaust survivors -- to act as the lead plaintiff on behalf of all current and former Division I-A football and men’s basketball players for compensation denied them over the years through "'myriad revenue streams' including DVDs, video games, memorabilia, photographs, television rebroadcasts and use in advertising." This is a serious charge from serious people, although one the NCAA dismisses out of hand: "The NCAA categorically denies any infringement on former or current student-athlete likeness rights."
So how, exactly, are you supposed to handle a suit that represents every football and basketball player who ever played under the Association when, as Yahoo Sports' Dan Wetzel points out, you can still buy Four Horsemen memorabilia more than 80 years after their famous ride over Army in 1924? That remains a little, you know, murky. But as Wetzel winds his way through a brief history of licensing rights and relevant cases (including a nearly identical suit against the NFL Player's Association over representations in the "Madden" games), one conclusion seems pretty clear: If these guys were anyone else besides NCAA athletes, they'd be getting paid from the profits off their likenesses -- or rather, they would have been paid in the first place.