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).
If Student-Athletes Already Assigned Certain Rights to the NCAA, Why are Former Student-Athletes Suing the NCAA?
First of all, not all of the plaintiffs in those cases accept the argument that the Student Athlete Statement extends to the NCAA the right to license student images to videogame manufacturers. Some believe the forms signed permitting an athlete to play college ball were limited in scope to issues of cable television syndication, re-airings of bowl games and other similarly newsworthy sporting events – not the creation of a videogame.
Still others argue that even if the Student Athlete Statement granted the NCAA rights to license player images without limitation, the license cannot last forever – it must either terminate or be revocable. Recall that more than 10 years passed by the time Ed O’Bannon saw his image from 1995 on a videogame. Is this reasonable? Does the NCAA own your image forever?
In most if not all of these cases, the players argue that the use of their images in these videogames constitutes a misappropriation of likeness, which violates their right of publicity. These rights may be violated by the use of a person’s name or biographical information in such a manner that more than a de minimis number of people recognize the athlete. In each of the NCAA-player lawsuits, the plaintiffs argue that both lesser known student-athletes and prominent student-athletes are all readily identifiable. It is believed that this level of recognizability exponentially increases the value of each videogame. As a result, the players are entitled to a share in the profits – or, are they?
How are the Videogame Manufacturers Justifying their Actions?
In defense of the NCAA player lawsuits, EA presents multiple points in an effort to justify their use of player likenesses. One of the most compelling defenses is that the videogames are protected by the First Amendment of the United States Constitution.
Specifically, EA argues that although the student-athletes’ likenesses are “referenced” in the creation of the videogames, the players’ likenesses are simply “raw materials,” or mere inspirations, used in the development of a final product, which is wholly separate from its component parts. EA explains that its games are unique because they allow the consumer to control, for example, coaching decisions, how the avatar will perform, who the avatar will play, whether the avatar stays in its designated position on the field (or on the court), and, among other things, whether the avatar’s skill sets will be utilized in a manner similar to the student-athlete while in school. (This defense is commonly referred to in the legal community as the transformative use doctrine. The transformative use doctrine has been relied upon for many years by those who engage in the manufacture of consumer goods that may remind the purchaser of someone or something.) EA further argues that the level of control exercised by the videogame player adds significantly to the level of fiction that exists in videogames. As a consequence, the avatar is not the student-athlete. To the contrary, it’s just a game.
In the case of Sam Keller, the court concluded that EA’s defense was unpersuasive. There, it was determined that the videogame manufacturer was essentially exploiting the attributes of the athletes without their permission and without compensation. Perhaps the fact that the avatars were easily identifiable as current and former NCAA players played a larger part in this court’s analysis than it did in Ryan Hart’s case.
In stark contrast to the Keller lawsuit, the Ryan Hart case ended up finding that the videogame manufacturer’s use of the student-athlete’s likenesses as raw materials was protected by the Constitution. The rationale there was that the avatars and scenarios were designed to be manipulated by the consumer, which is sufficient to find a basis for constitutional protection.
If Student-Athletes Succeed Against the NCAA, What’s the Practical Impact for the Rest of Us?
A similar issue recently arose in the case filed against game developer Rockstar Games and publisher Take-Two Interactive. In 2012, Ex-Cypress Hill member, Michael “Shagg” Washington, lost his lawsuit against the makers of Grand Theft Auto: San Andreas. In July 2010, Washington’s nephew reportedly showed him some of San Andreas’s gameplay. Washington found the main character Carl “CJ” Johnson to be a clear representation of himself, and he started putting together a lawsuit over fraud, misappropriation of likeness, and infringement. In his lawsuit, Washington produced evidence that he was invited to attend a meeting with game developers to talk about his life as a gangster. In addition to taking the meeting, Washington even gave them a photograph, which the designers maintained in their files. More importantly, the videogames’ credits reference Washington as a model. Despite this evidence, the court agreed with the videogame developers, concluding that the videogame is protected by the First Amendment of the Constitution.
With regard to the NCAA lawsuits, if successful, the lawsuits could cost EA dearly – who will buy their videogames if they lack the level of realism players have come to expect? Moreover, a finding in favor of student-athletes could include a finding that EA share its profits with all athletes, including current student-athletes, a notion that flies in the face of current NCAA policy.
Ultimately, the question of who can do what with your image is still in the hands of our judicial system. Stay tuned…