In recent times, former and current NCAA athletes have noticed a myriad of similarities between themselves and avatars depicted in videogames. Knowing full well no release was either presented or signed; athletes find themselves wondering, “What gives these videogame manufactures the right to use my likeness?” The better question is: Who granted those rights? Based on lawsuits filed in 2009 and 2010, the consensus is that the NCAA licensed the right to use player likenesses to Electronic Arts (EA) for its use in videogames.
Lawsuits filed by Former Athletes on behalf of Current and Former College Players
In 2009, Ed O’Bannon, former power forward for UCLA who played on their 1995 NCAA championship team, filed a ground-breaking lawsuit challenging the rights of the NCAA to license his image to Electronic Arts. After seeing a friend’s child play a videogame, O’Bannon recognized himself as one of the avatars featured in the game. O’Bannon observed, “It didn’t have my name, but it had my number, it was left handed and it looked like me.” O’Bannon’s friend looked at him and said, “You know what’s sad about this whole thing? You’re not getting paid for it.”
In his lawsuit, O’Bannon not only named the NCAA but he also named Electronic Arts and the Collegiate Licensing Company (CLC), which is the licensing arm for the NCAA. According to O’Bannon, the NCAA, through CLC, granted to the videogame manufacturer, rights to use the names, images and likenesses of former Division I football and men’s basketball players in various commercial ventures without the players’ permission and without providing the players with compensation.
Sam Keller, a former football player who attended both Arizona State University and University of Nebraska, filed a nearly identical lawsuit. Keller’s lawsuit adds the allegation that EA intentionally circumvented NCAA rules and regulations that specifically prohibit the use of student-athletes’ names in commercial endeavors by allowing videogame players to upload team rosters from a third party who created the “EA Locker” feature, which applies student-athlete names to their corresponding videogame avatars, within a matter of seconds.
In 2010, former Rutgers University quarterback Ryan Hart, joined by former University of California quarterback Troy Taylor, also filed suit against EA, CLC and the NCAA alleging similar violations. That same year, former University of North Carolina football player Byron Bishop filed a class action suit against EA, CLC and the NCAA, charging that the defendants conspired to violate the NCAA’s bylaws prohibiting the for-profit use of amateur athletes when they included likenesses – but not names – of current athletes in NCAA-branded videogames.
EA produces videogames under the names, NCAA Football and NCAA Basketball. These games, in particular, depict virtual basketball and football games between NCAA member-institutions that feature avatars that are apparently inspired by former and current players. This conclusion is drawn based on the fact that the avatars’ facial features, height, weight, athletic abilities, signature moves, position on the team, jersey number and even wrist-band placement, are all easily matched up with real players.
As any college-bound athlete knows, before you can suit up at a Division 1 school, you have to sign a few documents. Most notably among them is the Form 08-3a Student Athlete Statement. By signing, students affirm that they understand that they are prohibited from profiting from the commercial use of their names, pictures or likenesses while in school. In addition, at Part IV of the form, the students expressly authorize the NCAA and the CLC to use the student-athlete’s names or pictures in accordance with Bylaw 12.5, including promoting NCAA championships or other NCAA events, activities or programs. Bylaw 12.5 expressly limits the NCAA’s right to use the names or pictures of enrolled students. However, this bylaw does not place a time limit on the NCAA’s right to use names or pictures. It follows then, that likenesses captured during college are probably subject to NCAA rules, which expressly permit the NCAA to license the use of likenesses to entertainment outlets…like Electronic Arts (among others).