Back on July 15th, I posted a Fanshot regarding a class-action lawsuit vs. EA Sports, the NCAA and Collegiate Licensing Company (the NCAA's licensing arm) . In that post, lead plaintiff in the case- Sam Keller (former QB for Arizona State and Nebraska, respectively) claims that likenesses of players and former players in any/all sports who played in the NCAA are intellectual property and these players/ex-players should be provided just compensation. As well, Keller's attorneys said that the claims against the EA Sports and the NCAA are different. Their issue with EA Sports is the use of the likenesses of the players. Their issue with the NCAA is that college sports' governing body made a deal with the video game manufacturer, turning a blind eye toward the use of the players' likenesses (taken from the Washington Post article linked in red/bold) The NCAA and EA Sports directly responded to the WashPost article. NCAA saying essentially that it does not profit from the likenesses of it's players or former players. (what a way to NOT answer the major question of the pertinents to the lawsuit). EA Sports spokesman saying, "We do not believe that any violations of student-athlete rights have occurred." (hey, at least the WashPost got a quote from them!)
Well, there's a new lawsuit- brought on by ex-NFL players and this new litigation against EA Sports shines new light on how the NCAA and EA Sports colluded to skirt legalities in their agreement to allow for likenesses to be utilized in EA video games.
This new lawsuit, brought on by ex-NFL player Tony Davis, alleges Electronic Arts "knowingly and intentionally" used the retired players' likenesses in such a way to avoid having to pay licensing fees. Plaintiff and former NFL running back Tony Davis contends EA misappropriated the retired players by using their exact player stats and positions from when they were active in the league, including height and weight, but would remove their names and change their uniform numbers.
"The only significant detail that EA changes from the real-life retired NFL players is their jersey number," the suit says. "Despite EA's 'scrambling' of the retired NFL players' numbers, the games are designed so that consumers of the Madden NFL video game franchise will have no difficulty identifying who the 'historic' players are."
The suit also says that despite not including the players' names and original uniform numbers in Madden NFL 09, users can still go in and edit the roster to include them.
The class seeks punitive damages for deprivation and violation of publicity rights
An EA representative told IGN the company does not comment on pending litigation. (they only comment on ones that they actually think they'll win- it seems to me)
So, does the NCAA get up-front money or are they paid yearly from EA Sports to NOT LITIGATE the video-gaming company for using players/ex-players likenesses? You know, akin to "hush-money". I fully believe the NCAA's sincerity by saying it does not "profit" from their players likenesses- but they didn't exactly say that they don't receive a payout from EA Sports altogether.
So, by using the likenesses of players- EA Sports has been able to rake in MILLIONS AND MILLIONS of dollars skirting direct usage of actual players' names, teams, and jersey numbers. And by not having a direct contract or agreement regarding current or former NCAA players, their team, nor jersey numbers- the NCAA can rightfully claim they don't profit off their likenesses.