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

By Zach Berman
Washington Post Staff Writer
Monday, July 12, 2010; D01

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.

"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."

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