On eve of latest NCAA Football video game release, athletes still look for recourse

Video games, such as EA Sports' NCAA Football 11, are popular in part for their recognizable avatars.
Video games, such as EA Sports' NCAA Football 11, are popular in part for their recognizable avatars. (Ea Sports)
By Zach Berman
Washington Post Staff Writer
Monday, July 12, 2010

This time of year once excited Sam Keller. The release of the updated version of the popular NCAA Football video game series by EA Sports is an annual milestone of summer, appearing in stores about seven weeks before the college football season begins.

Keller, a former quarterback at Arizona State and Nebraska, could sit in his college living room with roommates and play as his virtual self -- or at least as a player with the same number, skin tone, height, throwing arm and home state.

Whether those likenesses are part of a college athletes' intellectual property is a fundamental issue in a class-action lawsuit filed by Keller against the NCAA and EA Sports. The issue has been ongoing for more than a year, and likely won't be resolved anytime soon. The newest version of the game will be released on Tuesday, complete with team rosters similar to those that will play on Saturdays this autumn.

"Something needed to change about how college football players were being taken advantage of with this game," Keller said. "College football players, and college athletes in general, they work really hard and to be taken advantage of by this game. I felt we could win this thing."

Keller's attorneys said that the claims against the EA Sports and the NCAA are different. Their issue with EA Sports is the use of the likenesses of the players. Their issue with the NCAA is that college sports' governing body made a deal with the video game manufacturer, turning a blind eye toward the use of the players' likenesses. The suit also names the Collegiate Licensing Company, which is the NCAA's licensing arm.

The NCAA contends it "does not attempt to profit from the likenesses of Mr. Keller or any other student-athletes, nor does it license EA to use those images," spokesman Bob Williams wrote in an e-mail.

An EA Sports spokesperson wrote: "Our position remains unchanged. We have reviewed the complaint, and we remain confident we will win on the merits. We do not believe that any violations of student-athlete rights have occurred."

In a 2006 Indianapolis Star article about the realism in the game, an EA Sports spokesperson said, "This has been an ongoing discussion: 'Okay, how far can we go?' " While stopping short of using the players' names, players are identified by positions and jersey numbers. They also use a different home town, albeit one in their home states.

In a similar but separate case, former UCLA basketball standout Ed O'Bannon, along with other former athletes, presented a class-action lawsuit against the NCAA using athletes' images and likenesses without compensation.

Keller does not object with the NCAA making money off licensed products such as jerseys, or even if the school promotes the player for its own purposes. But he said the video game is the most egregious misuse because the players' intellectual property is being violated.

"They don't have a name on the back, because they're not allowed to," Keller said of the players in the video game. "It's supposed to be Arizona State and just a bunch of players. They're not supposed to have each player pixilated, but they do, and it's obvious. The issue with EA Sports is completely separate from any issue with the NCAA. The only reason it comes in line is because EA Sports takes our images, and they're not supposed to. But the NCAA lets it happen. They're not protecting us."

EA Sports' NFL version of the game is the popular Madden NFL series, which has an exclusive agreement with the NFL and the players' association that allows EA Sports to use the names and likenesses of players. In the NCAA game, users can manually insert -- or even download online -- the names of players in the game.

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