By William B. Nash

 

EA Sports announced on Tuesday, that they will be making and releasing the beloved NCAA Football video game series that was discontinued in 2014.[1] This announcement was celebrated by many due to the still passionate fanbase of the game, even though one hasn’t been made in over seven years.[2] NCAA Football was one of the top selling video games of its time, averaging around 80 million dollars in sales per game, netting 1.3 billion dollars over its 15-year run as a franchise.[3]

 

The game was discontinued in 2014 following a lawsuit by college basketball superstar Ed O’Bannon.[4] O’Bannon discovered what looked like himself in EA’s college basketball game but was not credited or paid for his likeness used in the game.[5] He brought suit against both EA Sports and the NCAA.[6] Following the lawsuit, it is a common misconception that O’Bannon was to blame for the game discontinuing, because in reality he was suing not to discontinue the game, but because he believed college athletes should be paid for a company using their likeness, and that the NCAA prohibiting this was a violation of antitrust law.[7] EA Sports was willing to pay athletes for the use of their likeness, but because the NCAA prevailed in O’Bannon, they were not allowed to compensate under the NCAA’s amateurism model.[8] Shortly after the lawsuit, EA announced they were discontinuing the game because they wanted to avoid future lawsuits as well as the NCAA discontinuing its licensing agreement with EA.[9]

 

Legislation and public opinion surrounding name, image, and likeness (NIL) rights have been changing relatively quickly over the past years, which has been discussed in a previous post on this blog, which you can read here. Without an actual change in student athletes being able to be paid for use of their NIL, a return of the beloved NCAA Football game seemed unlikely, prior to EA’s announcement. Experts and fans of the game, as well as Ramogi Huma, the executive director of the National College Players Association, have said that the game will not be nearly as enjoyable or profitable, if they cannot use the likeness of the players.[10]

 

There has been state legislation, federal legislation proposals, and a case heading to the Supreme Court, all involving the payment of student athletes for their NIL and beyond.[11] To determine the extent player’s likeness will be able to be used, EA claims they are “continuing to watch [these] developments closely.”[12] Five states have enacted legislation allowing student athletes to be able to benefit from their NIL, muddying the waters from the NCAA’s model of amateurism which strictly prohibits this compensation.[13] There have been several federal bills proposed regarding athletes and changing the system the NCAA has confined them in, maybe the most prominent being the “College Athletes Bill of Rights,” stating NCAA athletes should be able to benefit from their NILs, as well as a plethora of other rights like extended scholarship for extra semesters, a required medical trust fund, and most importantly profit sharing with athletes from sports revenue.[14] Finally, the Supreme Court granted certiorari to hear a case regarding amateurism and antitrust law, very similar to the O’Bannon case, however the Supreme Court is yet to make a ruling.[15]

 

In the midst of the legislation, the NCAA was supposed to vote on the possibility of NIL compensation but postponed the vote that was supposed to take place in January, which is not surprising considering their historical attitude towards these issues.[16] EA has not commented on when the new version of the game will be released.[17] One of the reasons for this is likely that they want to see how the rules regarding what they can do play out.

 

For EA to be able to use NIL, experts believe that there will need to be group licensing, similar to the systems for professional leagues.[18] The NCAA has been historically strongly opposed to any mechanism for players to negotiate as a group.[19] One thing is for sure at this point, and that is that colleges and conferences are back on board with licensing their brand, so the games should include most colleges and leagues at least.[20] This does not come as a surprise due to the amount of money schools were able to make through these licensing agreements.[21] Looking forward, we will have to wait on the possible policy changes before we will understand what will be included within the already highly anticipated college football game.

 

[1] See Michael Rothstein & Dan Murphy, Everything you need to know About the Return of EA Sports’ College Football Video Game, ESPN (Feb. 2, 2021), https://www.espn.com/college-football/story/_/id/30820886/everything-need-know-return-ea-sports-college-football-video-game.

[2] See Steve Berkowitz, How EA Sports’s NCAA Football Video Game Could make a Comeback, USA TODAY (May 20, 2019, 6:00 AM), https://www.usatoday.com/story/sports/2019/05/20/how-ea-sportss-ncaa-football-video-game- could-make-comeback/3704876002/.

[3] See id.; Roger Groves, EA Sports Will Still Score Even More Financial Touchdowns Without The NCAA, FORBES (Sept. 28, 2013, 10:47 AM), https://www.forbes.com/sites/rogergroves/2013/09/28/ea-sports-will-still-score-even-more- financial-touchdowns-without-the-ncaa/#4e2c1c75554a.

[4] See Steve Berkowitz, How EA Sports’s NCAA Football Video Game Could make a Comeback, USA TODAY (May 20, 2019, 6:00 AM), https://www.usatoday.com/story/sports/2019/05/20/how-ea-sportss-ncaa-football-video-game- could-make-comeback/3704876002/.

[5] See O’Bannon v. National Collegiate Athletic Association, 2015 U.S. App. LEXIS 17193 (9th Cir. Sept. 30, 2015).

[6] See id.

[7] See Alex Kirshner, Blame the NCAA, not Ed O’Bannon, BANNER SOCIETY (July 13, 2018, 8:00 AM), https://www.bannersociety.com/2019/8/15/20708592/ed-obannon-ncaa-football-video-games.

[8] See id.; O’Bannon v. National Collegiate Athletic Association, 2015 U.S. App. LEXIS 17193 (9th Cir. Sept. 30, 2015).

[9] See Steve Berkowitz, How EA Sports’s NCAA Football Video Game Could make a Comeback, USA TODAY (May 20, 2019, 6:00 AM), https://www.usatoday.com/story/sports/2019/05/20/how-ea-sportss-ncaa-football-video-game- could-make-comeback/3704876002/; Brian Wiedey, The Door is Finally Open for ‘NCAA Football’ Franchise to Return, SPORTING NEWS (Oct. 10, 2019), https://www.sportingnews.com/us/ncaa-football/news/door-finally-open-for-ncaa-football-franchise-to- return/1akmgbyijqk2d1opirq5wzu2o0.

[10] See Alan Blinder & Billy Witz, E.A. Sports Will Resurrect College Football Video Game, The New York Times (Feb. 2, 2021), https://www.nytimes.com/2021/02/02/sports/ncaafootball/ea-sports-football-video-game-ncaa.html; Alex Kirshner, Blame the NCAA, not Ed O’Bannon, BANNER SOCIETY (July 13, 2018, 8:00 AM), https://www.bannersociety.com/2019/8/15/20708592/ed-obannon-ncaa-football-video-games.

[11] See Zachary Zagger, EA To Bring Back College Football Game Amid NIL Debate, Law360 (Feb. 2, 2021), https://www.law360.com/competition/articles/1351290/ea-to-bring-back-college-football-game-amid-nil-debate.

[12] See id.

[13] See id.

[14] See Doriyon C. Glass & Gregg E. Clifton, The Proposed “College Athletes Bill of Rights” Joins Growing Number of Federal Bills On Stu- dent-Athlete Rights, Jackson Lewis (Dec. 20, 2020), https://www.collegeandprosportslaw.com/uncategorized/the-proposed-college-athletes-bill-of-rights-joins-growing-number-of-federal-bills-on-student-athlete-rights/.

[15] See Robert Barnes & Rick Maese, Supreme Court will Hear NCAA Dispute over Compensation for Student-Athletes, The Washington Post (Dec. 16, 2020), https://www.washingtonpost.com/politics/courts_law/supreme-court-ncaa/2020/12/16/90f20dbc-3fa9-11eb-8db8-395dedaaa036_story.html.

[16] See Alan Blinder & Billy Witz, E.A. Sports Will Resurrect College Football Video Game, The New York Times (Feb. 2, 2021), https://www.nytimes.com/2021/02/02/sports/ncaafootball/ea-sports-football-video-game-ncaa.html.

[17] See Michael Rothstein & Dan Murphy, Everything you need to know About the Return of EA Sports’ College Football Video Game, ESPN (Feb. 2, 2021), https://www.espn.com/college-football/story/_/id/30820886/everything-need-know-return-ea-sports-college-football-video-game.

[18] See Zachary Zagger, EA To Bring Back College Football Game Amid NIL Debate, Law360 (Feb. 2, 2021), https://www.law360.com/competition/articles/1351290/ea-to-bring-back-college-football-game-amid-nil-debate; Michael Rothstein & Dan Murphy, Everything you need to know About the Return of EA Sports’ College Football Video Game, ESPN (Feb. 2, 2021), https://www.espn.com/college-football/story/_/id/30820886/everything-need-know-return-ea-sports-college-football-video-game.

[19] See Michael Rothstein & Dan Murphy, Everything you need to know About the Return of EA Sports’ College Football Video Game, ESPN (Feb. 2, 2021), https://www.espn.com/college-football/story/_/id/30820886/everything-need-know-return-ea-sports-college-football-video-game.

[20] See id.

[21] See Kristi Dosh, Why Electronic Arts Will Finally Pay Current and Former NCAA Football Players, THE MOTLEY FOOL (June 4, 2014, 11:47 AM) https://www.fool.com/investing/general/2014/06/04/why-electronic-arts-will- finally-pay-current-and-f.aspx.

Image Source: https://www.maizenbrew.com/football/2020/6/19/21294356/ncaa-14-review-denard-robinson-the-symbol-of-better-time-for-sports-gamers

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