EA Sports College Football is Coming Back

On February 2nd, Electronic Arts (“EA”) announced that it is bringing back its EA Sports College Football video game in partnership with the Collegiate Licensing Company to license the use of over 100 schools and their uniforms, stadiums, and mascots. EA is promising to release the title while navigating an ever-evolving landscape of name, image, and likeness rights for student athletes. While EA has promised that the game will return in either case, it is presently unclear if new laws and regulations will permit them to obtain player likenesses for inclusion in the game, or if the game will have to be made without such likenesses.

Under current NCAA rules, student athletes who receive any compensation for their name, image, or likeness are rendered ineligible from play. Due to those rules, EA was able to license rights for schools, conferences, and bowl games, but not individual players. EA’s annual NCAA Football series thus rendered football players on each team as nameless avatars represented by vague physical characteristics such as their height, their jersey number, and the team logo on their uniform.

The NCAA Football series was originally cancelled in 2013, after players brought a class-action lawsuit against EA for violating their right of publicity and antitrust law by using their names and likenesses without compensation. In the suit, In re: NCAA Student-Athlete Name & Likeness Licensing Litigation, the Court applied the transformative use test to assess whether the Plaintiffs’ right of publicity was violated. As we detailed in our previous coverage of the suit, the five factors in the transformative use test are whether: (1) the celebrity likeness is one of the raw materials from which an original work is synthesized; (2) the work is primarily the defendant’s own expression if the expression is something other than the likeness of the celebrity; (3) the literal and imitative or creative elements predominate in the work; (4) the marketability and economic value of the challenged work derives primarily from the fame of the celebrity depicted; and (5) an artist’s skill and talent has been manifestly subordinated to the overall goal of creating a conventional portrait of a celebrity so as to commercially exploit the celebrity’s fame. The Court held that the use of the players’ likeness was not a transformative use because EA did not go beyond merely directly copying real-life people, reasoning that, though EA never used any names, they represented the named Plaintiff as “what he was: the starting quarterback for Arizona State and Nebraska, and the game’s setting is identical to where the public found [Keller] during his collegiate career: on the football field.” EA and the Collegiate Licensing Company settled with the athletes for $40 million, and the NCAA settled with the players for $20 million.

In a similar case, Hart v. Electronic Arts, Inc., Rutgers University quarterback Ryan Hart sued EA for creating a nameless quarterback character in his likeness, using his height, weight, number, hair color and style, body type, skin tone, and even his choice of accessories in its NCAA Football video game. The Court found that EA’s use of players’ likenesses was non-transformative because the realistic depictions of players in the game are the “sum and substance” of these digital facsimiles” because the goal of the game was to “create a realistic depiction of college football for the users.”

The use of NCAA players’ likenesses also raises antitrust issues. The NCAA mandates very specific rules on what compensation may be offered to student athletes, such as tuition, meals, board, and a cost-of-living allowance adjusted by location, all of which must be provided by the universities themselves. In O’Bannon v. NCAA, basketball player Ed O’Bannon sued the NCAA and Collegiate Licensing Company for licensing his name, image, and likeness to EA without his consent or compensation. O’Bannon argued that the NCAA had total control over players’ rights because players do not have a proper bargaining position. The Ninth Circuit found that the NCAA’s amateurism rules barring student athletes from compensation for use of their names, images, and likeness violate the Sherman Antitrust Act.

However, this legal landscape continues to evolve. While there is currently no practical way for the upcoming College Football game to include the likenesses of any players, there are some emerging paths that may allow EA to license players’ likenesses in the future. First, legislative action may provide new avenues. For example, Florida passed legislation to mandate that student athletes can receive payment for use of the name, image, and likeness that is set to take effect on July 1, 2021, and California passed a similar law that will take effect on January 1, 2023. Further, the Supreme Court itself may rule current NCAA restrictions illegal. The Court announced in December that it will soon hear a consolidation of two cases, National Collegiate Athletic Association v. Alston and American Athletic Conference v. Alston, following a May decision by the 9^th Circuit that NCAA limits on education-related benefits for student athletes violate antitrust laws.

Second, in view of these legal challenges, the NCAA itself may adopt new rules and regulations that allow for at least some player compensation without threatening eligibility. The College Football Nerds YouTube Channel explained several possibilities for licensing in the future. For example, players could potentially unionize, and the players’ union could negotiate on behalf of players to license their likenesses. Currently, each player would have to be contracted with individually, resulting in thousands of contracts, and the NCAA amateurism rules do not allow endorsement deals. If the NCAA were to allow a Collective Bargaining Agreement, then players could possibly be compensated as a group rather than as individuals, with money spread equally across all players in the sport. The NCAA could also create a clearinghouse that would license the likeness of a player. There is a fear that individual endorsements could become a backdoor to paying players to attend a certain school. College football has open recruitment with no player draft, so this could enable boosters of the wealthiest schools to simply outbid for all the best players by funneling money through guaranteed endorsements. This could be mitigated by having endorsements run through the clearinghouse, which keeps a small portion of the money (to incentivize it to make deals), and gives the rest as a portion to the player, a portion to the general scholarship fund, a portion to the NCAA, and a portion that is distributed across all players. However, if players are not given a substantial cut for their personal endorsement deals, with the money instead only being distributed to other players, then that may cause freeloader or incentivization problems.

Analysis:

EA is positioning itself well in response to a quickly-evolving set of circumstances. A few years ago, there was no possible way to contract with players for their likeness, and that created a largely impossible situation given jurisprudence requiring player compensation. However, it appears increasingly likely that name, image, and likeness payments will be permitted in the near future (possibly within a year). For example, the July 1, 2021, date upon which the Florida law goes into effect has the NCAA rapidly moving to get ahead of the law and create new guidelines for player compensation and/or collective bargaining that will be legally compliant in order to avoid a free-for-all. Given that the last college football game, NCAA Football 2014, was developed for gaming consoles now two generations old, it is likely that EA will need a few years to develop an all-new game with the 4K graphics that gamers expect. By starting on the game now, EA positions itself to be ready if and when any route to pay players to user their actual names and likeness becomes available. While we have no reason to question EA’s assertion that they will release a game regardless, one has to think the current timing is no coincidence.

Thank you to our colleague and College Football Nerds host Josh Davenport for his expertise and analysis. College Football Nerds is one of the largest YouTube channels covering college football, with over twenty-five thousand subscribers, and is known for their unbiased, analytics-heavy approach to the sport.