On June 20, 2013, a hearing is set to take place between the legal teams that are representing Ed O’Bannon and the NCAA, as well as EA Sports. The official name of the case itself is re: NCAA Student-Athlete Name & Likeness Licensing Litigation
. This case has been a couple of years in the making and goes back further than that because of the many rules that the NCAA has against student-athletes being paid and the incredibly long set of rules that they have to follow to maintain their amateur status. Ed O’Bannon’s legal team has spent plenty of time building up their case and has put together a very strong and, without a doubt, the most convincing argument that could result in multiple problems for both the NCAA and EA Sports.
First, the basics.
Ed O’Bannon’s argument isn’t that players should be getting paid to play collegiate athletics. He fully understands that maintaining an amateur status is incredibly important and that the sanctity (what little there is left nowadays) of the college sporting world needs to be maintained. His argument is that when a player has exhausted his or her eligibility (example: Senior eligibility players on the day after their bowl game are no longer considered under the legal guidelines of the NCAA and are allowed to do whatever they wish at that point), any likeness that is continued to be used by the school, the NCAA, or any other entity, should be required to pay that player a royalty fee because, now, that amateur status means nothing. A perfect example of this is the millions of dollars in merchandising, such as jerseys, DVDs of past seasons, memorbilia, pictures of players, and so on.
Ed O’Bannon brought his case to court in 2009 with the official suit. Four years of hearings, motions, and discussions to possibly get the case settled or dismissed, have finally brought us to what is expected to be the main event of this: The June 20 hearing that will determine if the case can proceed to trial. The legal team that represents the NCAA and EA Sports (More on why they are involved in a bit) have filed a motion of dismissal, claiming that the lawsuit that was actually changed last year in August does not fit the initial criteria of which the lawsuit was filed. Essentially, NCAA and EA Sports are saying that the lawsuit has no legal bearing. The importance of the change in this lawsuit is two-fold. First, the new lawsuit, if it were to be judged in favor of Ed O’Bannon’s side, will result in massive changes to revenue splits for universities and conferences. Schools today are already under major strain by the requirements of archaic rulings that need to be revised such as Title IX, which, while it is a necessary statute to have in order to ensure equality in collegiate sports, is in desperate need of a re-write. The second result of this is going to be felt in the gaming world, meaning that any collegiate sports title is now subject for possible review and royalties to be paid to previous players. FYI, the first college football game was released in 1993. The ruling could technically go all the way back to that year. If we didn’t have your attention before, we have it now.
Why is EA Sports involved in this?
Exactly what was written at the end of that last paragraph above. Truth be told, if this hearing doesn’t dismiss the case, it would be a major surprise to see it proceed to trial as the NCAA and EA Sports will more than likely attempt to settle out of court, which would take months and possibly even years to truly figure out how to come up with an accurate settlement for the thousands of ex-NCAA student athletes that would be affected by this. The major hit to the gaming industry, however, would be the loss of EA Sports’ wildly popular NCAA Football
has always skirted around the rules and regulations very carefully when it comes to this game franchise. The players inside the game are never listed by their names but, rather, by generic names. For example, ex-Baylor Quarterback and Heisman Trophy Winner Robert Griffin III was listed on his Baylor Bears team as “QB #10” for his position and number. As I covered above, NCAA rules prohibit the use of a current player in any way, shape, or form. The way EA Sports has gotten around this is by making the player generic and mixing up their likeness inside the game with generic faces and hairstyles. However, the argument against EA Sports has always been that the player ratings are absolutely for the players they are supposed to be representing, and that is going to be difficult for EA Sports and the NCAA to counter with.
So, really, what is going to happen with this?
No one knows yet. The hearing is going to be a major precursor and, by the time the ruling on this hearing is complete, we’re going to know the fate of a lot of issues with this case. Ed O’Bannon’s side is very confident that they will proceed to the class-action trial. Meanwhile, the NCAA and EA Sports believe that the law is on their side and they are fully acting within their rights for what they have done. There are three possible scenarios in all this, however.
Scenario #1: Case is thrown out of court and finds in favor of the NCAA and EA Sports
This is honestly the least likely scenario that will occur, in my opinion. The goal of a hearing isn’t to determine whether someone is at fault or not, but simply to determine if ther eis sufficient evidence and facts behind the lawsuit for it to proceed to trial. O’Bannon’s team has done a great job in taking their time and getting all of the information, and barring a judge that simply won’t buy it, I seriously doubt this occurs. If it does happen, though, nothing changes. Schools and the NCAA will continue their current practices while EA Sports will continue to have the licensing rights for their franchise. NCAA Football
will continue as planned.
Scenario #2: Judge rules in favor of O’Bannon and the case proceeds to class-action trial.
If this happens, there is no telling what the final outcome could be. O’Bannon’s lawsuit doesn’t actually seek a specific dollar amount in damages because, truth be told, there is no short way of saying that the number is easy to come up with. The math involved to figure out the split that ex-players should get is astronomical to even think about, but if it proceeds to trial, believe me when I tell you this: O’Bannon’s side will
win. The NCAA will take a major blow, if not a deathblow to use a gamer term, while EA Sports will effectively end any further games involving collegiate athletics. Lovers of the Triple Option Offense everywhere will weep.
Scenario #3: Judge rules in favor of O’Bannon and the case is settled out of court before going to class-action trial.
Without a shadow of a doubt, this is what I truly believe will happen. O’Bannon’s side has the better argument, and while the NCAA and EA Sports have a powerful legal team, that team will only get you so far when it comes to facts. The fact is this: The NCAA, all of the member schools, and EA Sports, have profited massively from collegiate athletics for the last twenty years, in the case of EA Sports, and far beyond that for everyone else. However, the ramifcations could be much more severe than just EA Sports effectively ending a franchise. The NCAA has been on wobbly legs for some time now, and any settlement that is made out of court will have to ensure their survival and to make sure that the member schools aren’t hit hard by the aftershocks. The problem, though, is that the negotiations will take a very long time but, even with that in mind, this is still the most feasible result of this entire ordeal.
I understand where Ed O’Bannon is coming from on this issue. It has been a hot topic for many years since college sports became far more popular than some professional sports in the 1980s and beyond. The counter-argument from every sports fan, of course, is that these student-athletes are getting a free education and, ultimately, a shot at professional sports beyond that, so why would they truly care about this? The problem, though, is that in terms of the NFL, each year there are only so many draft picks. In a normal NFL draft, there are seven rounds and 32 picks in neach round, meaning that not even 250 players may be drafted out of the over 300 schools that have football (Remember, there is more beyond just the BCS schools) and carry over 100 players each on their roster. That means that, as a safe number, every year there are over 30,000 football players who are graduating and will not be playing professional sports as a full-time job.
The issue is even worse with the NBA, where every draft is less than 70 picks out of the same number of schools, though the rosters are far less. Players get bad information all the time and decide to leave early, only to find out that they aren’t nearly as good as they thought and will not even get drafted, forcing them to go overseas and try to work back to the NBA for that big payoff. So, why not turn back to the college days and try to collect some money that way? The schools are still making money off of older teams with past memoribilia and videos, why not the player as well?
The bottom line is this: June 20 is going to be a date that will more than likely be remembered in the world of gaming as well as the world of collegiate athletics.
This is an opinion piece written by Sean Cahill, Gaming and A/V Writer for Gaming Nexus. While some of the information in this article contains facts from the lawsuit of “O’Bannon v. NCAA” the opinions that he states in this article are not the views of Gaming Nexus as a whole.