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EA Sports® Facing Multiple Suits over Avatars in NCAA® Football
and NCAA® Basketball Series

Elise Trent
Comm 698
Media Law
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Jrofessor Rubin
Due: November 1, 2010



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Recently, EA Sports® has become embroiled in several snowballing legal disputes

over the avatars used in the company¶s NCAA® Football and NCAA® Basketball series. The

company faces lawsuits from several former NCAA® players, including Sam Kelleri, Ryan

Hartii, and Ed O¶Bannoniii over the company¶s use of digital avatars with the nearly identical

physical, athletic, personal traits, position, and team number as the numerically

corresponding player on a university¶s actual student-athlete roster.iv

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EA Sports© has been producing the NCAA® Football game series, with annual

updates, since 1998.v The company¶s website touts the game¶s 120 Football Bowl

Subdivision schools, cheerleaders, official school colors and mascots.vi The game goes so

far as to have elaborate stadiums, bands, nets, flags and cameras that flash during crucial

game plays.vii

The popularity of the NCAA® Football game franchise is reflected through the

company¶s earnings and units sold. In the company¶s Q2 Earnings Release, Electronic Arts,

Inc., identified NCAA® Football 2010 as one of the top 5 driving forces behind the company¶s

record $1.147 billion FY10 Q2 non-GAAJ net revenue;viii gross revenue for company¶s 2010

fiscal year exceeded $3.5 billion.ix Furthermore, the company sold approximately 689,000

units of NCAA ® Football 2010 during the first 19 days on retail shelves alone.x

In 2005, EA Sports© signed a six year contract with the NCAA® for licensing rights to

produce the NCAA ® Football video game series.xi Since signing the contract, EA Sports© has

raked in over $500 million dollars from the NCAA® Football and Basketball games, however,

the football version of the game was responsible for about 90% of the $500 million dollars.xii



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There are about 10,000 NCAA ® players featured on each annual edition of the game

as 119 Division I football schools give out approximately 85 full scholarships per school.xiii

The sheer number of players who would benefit from successful lawsuit(s) against and

settlement(s) from EA Sports® and NCAA® indicates that those organizations have a lot at

stake. Jotentially, EA Sports® may come under legal obligation to alter avatars so they share

fewer traits with real-life student-athletes, thereby possibly making the games less appealing

and less profitable. On the other hand, EA Sports® and NCAA® may be legally compelled to

share profits with the student-athletes, though this outcome would require an overhaul of

NCAA® student-athlete contracts and re-definition of the ³amateur´ athlete status.

The annually-selected player featured on the game¶s cover box is a player who has

graduated or turned professional; either way, he is no longer considered an ³amateur´ under

NCAA® rules and is therefore exempt from the NCAA® licensing rules and can profit from his

appearance as he is considered a professional athlete. xiv

Several cases have recently come to light regarding the appropriation of the likeness

of players for EA Sports®¶ NCAA® Football and Basketball games.

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Sam Keller is a former starting quarterback at the University of Nebraska and Arizona

State University.xv Or, as Yahoo! Sports© writer Matt Hinton so aptly put it, ³you might know

Sam {Keller] best as µQB No. 9,¶ his licensing-friendly alter ego in EA Sports' best-selling

µNCAA Football¶ series.´xvi

Although the video game replaces names with numbers, for example, Sam Keller is

³QB No. 09,´xvii EA Sports has created a feature, ³EA Locker,´ where gamers can swap and

upload rosters into the game to get around this minor inconvenience with little effort.xviii

In the case brief filed May 5, 2009, Sam Keller¶s attorneys opine:
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These actions, Keller argues, violate his right to profit from his likeness.xx

NCAA© Bylaw 12.5 explicitly prohibits the use of an NCAA© athlete¶s ³name, picture,

or likeness´ for commercial licensing purposes, thereby, implying the NCAA© broke its own

rules by approving EA Sports¶ NCAA© Football and NCAA© basketball avatars.xxi

According to the Keller brief, EA Sports® took great care to replicate details of each

team¶s players, stating:

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On February 8, 2010, Judge Claudia Wilken dismissed EA Sports® claim that the

lawsuit should be dismissed because the statistics reported were mere historical information

and that a ³statutory reporting´ protects the game defense in that it conveys information on

the public record.xxiii Her ruling declared the ³statutory reporting´ defense pertains to the

³traditional sense of relating actual historical events´ and EA Sports® is not entitled to this

defense because it used Keller¶s image and likeness, which goes beyond reporting

information about Keller.xxiv

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c Ed O¶Bannon, former UCLA and Orlando basketball player, is currently entwined in

legal disputes with the NCAA© over the right to profit from one¶s student-athlete identity when

no longer legally considered a student-athlete.xxv Ed O¶Bannon ultimately seeks to

permanently restrict the NCAA©¶s ability to license the images and likenesses of former

college athletes after the athletes are no longer college students; he is suing over his
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likeness being used in an edition of NCAA© Basketball by EA Sports©.xxvi This case has the

potential to affect a wide array of revenue generating products, such as ³every old t-shirt . .

.any old Fab Five-era Michigan jerseys, [and] any copy of EA Sports©' NCAA© College

Basketball.´xxvii

On March 10, 2010, O¶Bannon and Keller filed a joint Consolidated Amended Class

Action Complaint, thereby consolidating Keller¶s right of publicity claims and O¶Bannon¶s anti-

trust claims.xxviii The consolidated complaint added 11 plaintiffs, strengthening the outcry

against EA Sports©¶ use of avatars in these games.xxix

The NCAA© orders all athletes to waive their commercial licensing right as amateur

athletes in order to be eligible to play; the NCAA© claims this form is used simply to give the

NCAA© the ³permission to µpromote NCAA© events, activities or programs.¶´xxx However, the

NCAA© will undergo heavy financial loss should they lose the suit. Recently, the NCAA©

singed a $10.8 billion, 14-year television deal for college basketball. To think an organization

originally designed to protect student-athletesxxxi could make such a large profit from their

appearances without compensating them is frankly ludicrous.

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c Ryan Hart, a former Rutgers University quarterback, sued Electronic Arts, Inc.® under

the New Jersey Consumer Fraud Act, for EA Sports®¶ failure to disclosed to consumers that

he did not consent to the uses of his likeness for commercial purposes by EA Sports©, and

for appropriating his likeness for the 2004, 2005, and 2009 NCAA© Football editions.xxxii Hart

argues the avatar playing Rutgers¶s quarterback possesses the same jersey number, same

exact weight, same home state, same left wristband, same helmet visor, and same exact

height as he did during his career at Rutgers University.xxxiii

Although Judge Wolfson of the United States District Court District of New Jersey

partially dismissed Hart¶s lawsuit on September 21, 2010, his Right to Jrivacy claim was
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dismissed without prejudice and the defendant was granted the opportunity to file a Second

Amended Complaint with additional information.xxxiv Because the judge offered Hart a second

opportunity to file an amended complaint regarding Right to Jrivacy, this motion grants the

most credence against EA Sports¶ use of avatars that closely mimic real players.

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Jeremy Bloom simultaneously played football at the University of Colorado as an

³amateur´ in 2002 and trained/competed as a professional skier.xxxv According to the NCAA

bylaws, he was permitted to receive financial benefits from his behavior as a professional

athlete; however, because he was also a ³amateur´ athlete, Bloom and the University of

Colorado applied for a waiver from the NCAA in order for Bloom to receive financial benefits

from his skiing career while continuing to play ³amateur´ football.xxxvi

The NCAA declined this waiver request and Bloom took them to court to receive

³declaratory and injunctive relief.´xxxvii The courts ruled in his favor, agreeing that the NCAA

committed a breach of contract and acted in an unjust manner.xxxviii This case established a

precedent of NCAA student-athletes suing the organization over monetary benefits from

athletic performance.xxxix


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Last year, retired NFL players were awarded $28.1 million after a jury decided the

National Football League Jlayers Association (NFLJA)¶s marketing division, Jlayers, Inc.,

³breached their fiduciary & contractual duties to pay retired NFL players their share of

guaranteed licensing revenues«´, according to the NFL Alumni Association.xl Instead of

appealing the decision, the NFLJA settled for $26.25 million with the over 2,000 retired

players represented in the class action lawsuit, originally filed by Hall of Fame cornerback

Herb Adderley.xli
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Michael E. Davis, aka Tony Davis, filed a class action lawsuit on July 29, 2010 on

behalf of himself and all ³similarly situated retired NFL players´ against Electronic Arts, Inc. xlii

The case brief filed by Davis¶ attorneys argues:

  
 



 
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These two aforementioned lawsuits lend strength to the belief that athletes should be

compensated for the use of their likeness in the EA Sports high-grossing video game series.

Both cases deal with EA Sports¶ attempt to skirt around NFLJA¶s licensing fee rules by using

detailed statistics and specific positions of past players, but not including their names or

uniform numbers. However, just as in NCAA Football, game owners can easily upload the

corresponding players¶ real names.xliv

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c Whether or not EA Sports has truly violated laws and contracts in the eyes of the court

system has yet to be decided, but there has been considerable uproar over EA Sports¶

actions from student-athletes and retired NFL players. The fact that multiple lawsuits are

being brought against EA Sports on similar grounds is potentially indicative of a social

balancing test tipping in favor of the athletes.

The recent legal entanglements of EA Sports hold implications for several areas of

law. First, the lawsuits are confronting EA Sports¶ and the NCAA¶s ability to closely mimic real

players identities for profit when those players were pushed into contracts forfeiting their right

to profit from their identity as an athlete while still an ³amateur.´ If an athlete doesn¶t sign over

his/her rights, he/she can¶t play. Second, the cases address the digital realm through the

video game¶s use of avatars and may help establish precedent in the area of digital

entertainment and digital/Internet rights. Regardless of the outcomes, EA Sport¶s multiple

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lawsuits hold considerable weight as legal precedents for athletes, video gamers, and the

digital realm.

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cKeller v. Electronic Arts, Inc., No. 09-1967, slip op. (United States District Court
for the Northern District of California May 5, 2009),
http://www.courthousenews.com/2009/05/06/ElectronicArts.pdf
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cTravis, C. (2009, May 12). AOL NCAA football fanhouse. In "

 
 
. Retrieved October 27, 2010, from AOL website:
http://ncaafootball.fanhouse.com/2009/05/12/examining-the-
ncaa-and-ea-lawsuit-head-down-the-rabbit-hole/
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ncaa-and-ea-lawsuit-head-down-the-rabbit-hole/
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:cNFL Alumni Association. (2010, August 4). Retired players lawsuit takes aim
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lawsuit-takes-aim-at-ea-sports/