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. (Ea Sports)

"I think it's fair to say that, from the totality of circumstances, if you can say this is a particular athlete -- whether it's uniform number, likeness, all those sorts of things -- if the public can know who it refers to, the more that it's there, the more they can claim this is as an aspect of my identity being used for commercial purposes," said Matt Mitten, director of Marquette's National Sports Law Institute.

Mitten differentiated this issue with other claims of athletes' rights being violated, such as the use of players' statistics in fantasy sports. He said protecting one's publicity rights is a fine line, but there is a difference between information in the public domain and an athlete's identity.

Although courts have had a difficult time determining what's protected by the First Amendment and what's an exclusive property right, Mitten said an issue in these cases is often consent.

Athletes sign standard forms that provide the NCAA "limited rights" to promote NCAA championships and events, according to an NCAA spokesperson. Schools can also have the players sign additional forms to use them for promotional purposes, but athletes cannot profit from their name or picture/likeness and retain their eligibility.

Keller believes his role is to be the "face" of the issue, but he does not want EA Sports to "change the game." He said knowing the players made the game fun. When Keller was a backup quarterback to Andrew Walter at Arizona State, he used to take out Walter in the video game and insert himself as the starting quarterback -- or at least what he perceived to be his virtual self.

Although the final ruling will be determined by a judge, Keller said the issue could be resolved with the creation of a trust fund created for former athletes depicted in the game. He does not want to take the games off the shelf -- after all, Keller enjoyed playing the game -- but does not want this annual milestone of summer to continue without the players benefiting.

"Don't tell me that that's not me, or that's not Sam Bradford, or number 12 on Texas is not Colt McCoy," Keller said. "Don't tell me they're making the games and throwing in a bunch of randoms for each college. Don't tell me that. Something's got to change."