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NCAA Football Video Game to Return: NCAA Continues to Punt

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On February 8, 2021

In Blog Posts

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

Virginia Sports Gambling: Ironing Out the Latest Details

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On October 12, 2020

In Blog Posts

By Mike Marciano

The first major domino to fall in the efforts to legalize sports gambling came in the Supreme Court’s decision passed down on May 14th, 2018, Murphy v. National Collegiate Athletic Association.[1] In Murphy, the Supreme Court found that the Professional and Amateur Sports Protection Act (PASPA), which attempted to federally restrict the ability for states to lawfully authorize gambling on sporting events,[2] violated the anti-commandeering doctrine under which congressional power to “issue direct orders to the governments of the states,” in some instances, is wrongful.[3] Writing for the majority, Justice Alito opined, “Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own.”[4]

Since Murphy decided that the states may individually choose whether or not to legalize sports gambling for its citizens, a handful of states have opted in favor of legalization.[5] Recently, among those states is Virginia.[6]

In April of this year, Governor Ralph Northam approved sports betting in Virginia by signing off on three different bills.[7] Since then, the Virginia Lottery Board (hereinafter “the Board”) has received hundreds of comments regarding the rules and guidelines that would accompany the implementation of sports gambling in Virginia.[8] Predictably, an important topic of consideration that arose regarding these rules has been which internet-based sports betting platforms, including mobile apps, will be permitted to operate in Virginia, and what rules will guide their operation.[9]

During the Virginia Lottery Board’s public comment period (which concluded on September 9th), the Board fielded comments from many of the more prominent sportsbooks, including FanDuel, DraftKings, theScore, and Caesars Entertainment.[10] Comments from these sportsbooks expressed dissatisfaction with some of the rules laid out in the framework provided by the Board and urged it to reconsider rules that would be difficult or impossible to comport with their technology.[11]

For example, both DraftKings and FanDuel commented on a requirement obligating sportsbooks to provide bettors with an explanation about how each bet is calculated.[12] Both sportsbooks ardently pushed back, contending that not only has no other state in the country insisted on a similar condition, but that it would be next to impossible to comply with such a requirement.[13] Sportsbooks such as FanDuel and DraftKings provide a tremendous amount of wagers for bettors to bet on, including live bets, which feature constantly changing odds.[14] Specifically, the fast-paced nature of a basketball game, for example, naturally necessitates that real-time betting odds reflect the current score of the game.[15] With how quickly the score of a basketball game changes, one can clearly see how difficult it would be for a sportsbook like FanDuel or DraftKings to constantly provide an explanation for odds that change so quickly.[16]

The two sportsbooks also protest that the ability for bettors to parlay their bets (tether multiple wagers, such that a winning bet depends on the success of two or more wagers, making the bet harder to win but providing more rewarding odds to the bettor) presents sportsbooks with an even more difficult burden.[17] Of these rules, FanDuel complains, “Sports betting apps are simply not built to provide and display this type of information . . . As such, this requirement would force a re-engineering of the products, to create a demonstrably worse user experience, and all to provide information which is immaterial to the calculation of the odds and/or payout a bettor will receive.”[18]

On September 15th, The Virginia Lottery Board approved a “framework for legal sports betting.”[19] Presumably, this updated framework will address concerns like the ones voiced by FanDuel and DraftKings about the capability for the technology in their apps to comport with the rules approved by the Board.[20] Probably, though, with the rise in popularity of online sportsbooks and sportsbook apps,[21] it would be advantageous for both parties to come to an agreement where the interface of sportsbook apps like those of FanDuel and DraftKings remains as intuitive as possible, and the desire for the Board to maintain certain standards is respected.

Regardless, Virginia’s efforts toward implementing sports wagering and approving online and app-based sportsbooks are forging forward, and in the coming months, Virginia bettors will be able to place wagers on some of their favorite teams.[22]

 

[1] Murphy v. National College Athletic Ass’n, 138 S. Ct. 1461 (2018).

[2] See id. at 1470.

[3] Id. at 1475–76.

[4] Id. at 1484–85.

[5] See US States with Legal Sports Betting the Definitive Guide, The Game Haus (Sept. 16, 2020), https://thegamehaus.com/sports/us-states-with-legal-sports-betting-the-definitive-guide/2020/09/16/ (listing which states have legalized sports gambling).

[6] See Christina Monroe, Gov. Northam Approves VA Sports Betting Bills After Amendments, Legal Sports Betting (Apr. 29, 2020, 11:54 AM), https://www.legalsportsbetting.com/news/gov-northam-approves-va-sports-betting-bills-after-amendments/.

[7] See id.

[8] See WFXRtv.com Digital Desk, Virginia Lottery Board Approves Sports Betting Regulations, Brings Virginia Closer to Legal Sports Wagering, WFXR Fox (Sept. 16, 2020, 8:56 AM) https://www.wfxrtv.com/news/commonwealth-news/virginia-lottery-board-approves-sports-betting-regulations-brings-virginia-closer-to-legal-sports-wagering/.

[9] See Graham Moomaw, Virginia Rolls Out Initial Sports Betting Rules. Big Gambling Platforms Push Back, Virginia Mercury (Sept. 10, 2020) https://www.virginiamercury.com/2020/09/10/virginia-rolls-out-initial-sports-betting-rules-drawing-some-pushback-from-big-platforms.

[10] See Jill R. Dorson, Stakeholders Have Plenty to Say About Proposed Virginia Sports Betting Regulations, Sports Handle (Sept. 14, 2020) https://sportshandle.com/virginia-regulations-comments-betting/.

[11] See id.; See also Moomaw, supra note 9.

[12] Moomaw, supra note 9.

[13] See id.

[14] See id.

[15] See id.

[16] See id.

[17] See id.; See also Sports Betting Guide: Parlay Bets and Odds Explained, Odds Shark (last visited Sept. 18, 2020) https://www.oddsshark.com/sports-betting/parlay-betting (explaining how parlay bets function).

[18] Moomaw, supra note 9.

[19] WFXRtv.com Digital Desk, supra note 8.

[20] Chris Murphy, Virginia Moves to Legalize Sports Betting in Time for Early 2021, SBC Americas (Sept. 16, 2020) https://sbcamericas.com/2020/09/16/virginia-moves-to-legalize-sports-betting-in-time-for-early-2021/ (statement of Virginia Lottery Executive Director Kevin Hall) (“A lot of helpful feedback was provided during the public comment period, and the updated regulations approved by the Lottery Board today incorporate many of the suggestions from stakeholders and citizens.”).

[21] PYMNTS, Odds Are That Online Sportsbook Wins Big Post-COVID, PYMNTS (Sept. 16, 2020) https://www.pymnts.com/digital-payments/2020/odds-are-that-online-sportsbook-wins-big-post-covid/ (noting that the online sportsbook and esports wagering sector has ballooned during the first half of 2020).

[22] See Murphy, supra note 20.

Image Source: https://medium.com/@isatyam/top-10-sports-betting-apps-for-2020-that-deserve-space-in-your-mobile-d86b5f80ba54

How the Return of Sports Could Help Pull Off a Major Comeback Against COVID-19

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On September 17, 2020

In Blog Posts

By: Noah Holman

We, as a country, have yearned for many relics of normalcy throughout the uncertain times that the COVID-19 pandemic has created. Sports are one of those relics. After months of cries for their return, they are here at last. And they have not disappointed, providing value far beyond mere entertainment. While sports’ potential as a catalyst for positive change is perhaps more well-known, or at least more accepted, now than ever before, it may nevertheless remain understated.

Colin Kaepernick kneeling for the national anthem in 2016 cemented his legacy as the martyr for athletes speaking out about racial inequality.[1] If Kaepernick is the martyr, Lebron James is the torchbearer. Never quiet to speak out about social and political issues, Lebron has spearheaded the NBA’s ongoing “More Than a Vote” campaign with the lofty goal of eradicating voter suppression.[2] While all of these racial inequality and social reform initiatives have garnered much publicity in recent weeks, and deservedly so, there has been noticeably less attention on the potential sports have to advance medical research and improve the effectiveness of COVID-19 protocols.[3]

When I speak of sports in such optimistic light, I am largely referring to the National Basketball Association (NBA) and the National Hockey League (NHL) to a lesser extent. While both the NBA, going on five weeks of no new cases of COVID,[4] and the NHL have been incredibly successful, Major League Baseball (MLB) has quite a conflicting track record.[5] Ultimately, though, the NBA has shown us the potential of sports at their height.

Professional sports aid in our collective response to the COVID-19 pandemic by funding research.[6] Specifically, the NBA funded new saliva test research at Yale.[7] It should come as no surprise that professional sports leagues are committing their resources, as much as half a million dollars in the aforementioned case,[8] to fund such research given not only their vast capital resources but also their economic interest in insuring their players and personnel take the most effective precautions. In addition, live sporting events are a significant source of revenue for the leagues, so they want to return to having full stadiums as quickly as possible. However cynical you may be of their motives, that major sports leagues are helping to fund research relating to COVID-19 is good for all.

In addition to funding research, much new technology is being tested in the NBA’s famous “bubble.”[9] Perhaps most well-known is the Oura rings, which monitor users’ temperature, heartrate, and other biometric data.[10] Players are also using logging their daily vitals on an app, using Bluetooth thermometers, and smart pulse oximeter devices.[11] The NBA, along with the host of its bubble, Disney, has repurposed the “Disney Magic” bands that guests at its amusement parks would typically wear to track the whereabouts of the players and personnel in the bubble.[12] Although it is difficult to say any one of these particular measures is cause for the NBA’s success in returning to play without an outbreak of the virus, all of them together seem to be effective.

Even despite the NBA bubble’s success, it is not a perfect case study. Although the NBA allegedly ordered 2,000 of them, apparently only around 25% of players and personnel are wearing the Oura rings, which is optional under the NBA’s policy.[13] Similar to wearing masks and the COVIDWISE contact tracing app that Virginia rolled out not long ago,[14] the technology that these rings provide is only effective if the overwhelming majority of the population under study is wearing them.[15] Thus, their actual effectiveness is far from proven.[16]

All that being said, the return of sports should be celebrated for many reasons beyond giving us something to watch other than the “gay, gun-toting cowboy with a mullet” that captured America by storm in the beginning of quarantine.[17] Sports are directly funding the medical research needed to save hundreds of thousands of lives, and indirectly stimulating the economy that needs to be revitalized to save the livelihoods of just as many others.[18] We can only hope that we have reached the fourth quarter of this physically and mentally tolling quarantine, but no matter what: sports will not give up until they hear the final whistle. And they will win, along with all of us.

[1] See Tadd Haislop, Colin Kaepernick Kneeling Timeline: How Protests During the National Anthem Started a Movement in the NFL, Sporting News (June 9, 2020), https://www.sportingnews.com/us/nfl/news/colin-kaepernick-kneeling-protests-timeline/xktu6ka4diva1s5jxaylrcsse.

[2] Cf. Emmanuel Morgan, More Than a Vote is More Than a Statement for Lebron James and Other Athletes, L.A. Times (July 30, 2020), https://www.latimes.com/sports/story/2020-07-30/more-than-a-vote-lebron-james.

[3] E.g., Kevin Stankiewicz, NFL’s Goodell: “We’re Going to Stand Behind Our Players” Against Any Backlash Over Protests, CNBC (Sep. 2, 2020, 1:29 PM), https://www.cnbc.com/2020/09/02/nfls-roger-goodell-on-backlash-to-player-protests-over-racial-justice.html.

[4] Lisa Eadicicco, The NBA Bubble Has Rolled Out Some Wild Technology to Help Keep Players, Coaches, and Staff COVID-free — Including a $300 Smart Ring that Can Monitor Biometric Data, Business Insider (Aug. 26, 2020, 2:04 PM), https://www.businessinsider.com/nba-bubble-oura-smart-ring-used-by-quarter-of-campus-2020-8.

[5] Nick Lichtenberg, The NBA and MLB Show Opposite Reopening Strategies — and One of Them is Already Striking Out. Here’s What Businesses and Schools Can Learn from the Great Pro Sports Reboot, Business Insider: Newstex Blog (July 29, 2020), https://www.businessinsider.com/nba-mlb-reopening-lessons-for-businesses-schools-coronavirus-2020-7; Markham Heid, NBA Bubble – How Does It Work? Science Behind the NBA Bubble, Popular Mechanics (Aug. 25, 2020), https://www.popularmechanics.com/science/health/a33796756/nba-bubble/.

[6] See infra note 7.

[7] Chris Hine, COVID Saliva Test Gets Big Boost from Wolves, NBA, StarTribune (Aug. 25, 2020), https://www.startribune.com/timberwolves-doctor-playing-key-role-in-covid-fighting-saliva-test/572208252/?refresh=true.

[8] Id.

[9] Eadicicco, supra note 4.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Geoffrey A. Fowler, I Downloaded America’s First Coronavirus Exposure App. You Should Too., Wash. Post. (Aug. 18, 2020), https://www.washingtonpost.com/technology/2020/08/17/coronavirus-exposure-notification-app/.

[15] Cf. Eadicicco, supra note 4.

[16] Id.

[17] See generally Taylor Borden, One Murder-for-Hire Plot, 5 Husbands, and 176 Tigers: Meet Joe Exotic, the Man Nicholas Cage Will Play in an Upcoming TV Series, Business Insider (May 4, 2020), https://www.businessinsider.com/who-is-joe-exotic-maldonado-passage-tiger-king-netflix.

[18] See generally Hine supra note 7.

Image Source: https://www.vanityfair.com/news/2020/07/inside-the-nbas-covid-free-bubble

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