A former EA Sports producer says that the NCAA games developed by EA Sports over the years were designed to replicate actual players without using their names. This is according to a deposition given by former EA Sports producer Jeremy Strauser, who testified in a deposition for the Ed O'Bannon lawsuit against the NCAA, Collegiate Licensing Company, and EA Sports. The deposition, along with other documents from the case are part of EA's filings with the court last week. Jeremy Strauser worked at EA from 1995 until 2011.

According to information gleaned from court documents obtained by ESPN, EA Sports used the real names of NCAA college athletes during the development of its now-dead college basketball video game franchise. The information came from emails that are being used as part of an antitrust lawsuit filed against the NCAA, Electronic Arts, and the Collegiate Licensing Company (CLC) by former NCAA college athletes.

A law firm representing former college athletes is asking a court for certification of their class action lawsuits that claims the NCAA tricked them into signing away their rights to profit from their own images being used in video games and other materials. In a 2009 class action lawsuit, former UCLA basketball star Edward O'Bannon claimed that the NCAA "forced" student athletes to sign a "misleading Form 08-3a" if they wanted to play NCAA sports.

Electronic Arts has agreed to give up the exclusive rights to create games based on the NCCA and AFL, and to pay $27 million to customers as part of a class action lawsuit settlement. The lawsuit alleged that EA had created a football game monopoly and used its position to edge out competing companies by adjusting prices downward, and locking down exclusive licenses. When that competition disappeared EA then raised the price of its games back to normal levels.

A lawsuit filed by former Rutgers University quarterback Ryan Hart has been thrown out of the Trenton, New Jersey U.S. District Court on the grounds that Electronic Arts was exercising free expression under the First Amendment. Hart had alleged in his lawsuit (Hart v. Electronic Arts Inc et al, U.S. District Court, District of New Jersey, No. 09-0599) that Electronic Arts has used his image in its NCAA Football video game without his permission.

NCAA president Mark Emmert said that the organization dedicated to collegiate sports will not stray from its long-standing tenet of not directly paying college sports players.

"It’s grossly unacceptable and inappropriate to pay players … converting them from students to employees," Mark Emmert tells USA Today.

But Emmert also acknowledges that it might be time for the organization to spread some of the revenue it generates from licensing around to players in one way or another. While he is not making any promises, Emmert thinks it would be acceptable to compensate players in other ways such as increasing the amount of money paid towards scholarships and other college expenses.

“I will make clear,” he says, “that I want this to be a subject we explore.”

Former Tennessee NCAA basketball player Bobby Maze has filed a lawsuit in California federal court against the NCAA and EA Sports over using his likeness in EA’s NCAA games without his permission. Maze joins former Nebraska quarterback Sam Keller and other former athletes seeking class action status against the NCAA. The complaint filed by Maze also names the Southeastern Conference and EA Sports, who he claims profited from exploiting his likeness.

While video games do not name players, they do identify them in every other way including "height, weight, ethnicity, uniform numeral, position, and year in school." Is this a simple way for the NCAA to avoid paying royalties of any kind to players for licensing their likenesses? Many say yes.

The suit also alleges that the NCAA requires athletes to sign a form every year giving up the right to their likeness that continues even after they graduate. No doubt, this practice will be tested in court.

U.S. District Court Judge Claudia Wilkin has denied the NCAA’s request to dismiss a class action suit filed last year by ex-UCLA star basketball player Ed O’Bannon which alleged that the collegiate association misused the likenesses of college athletes in a variety of licensed materials, including videogames.

Rivals.com notes that the ruling will now open the door for the discovery process to begin, which could shed some light on the inner workings of the NCAA. Lawyer Jon King, a Partner at Hausfeld LLP—one of the law firms handling the class action suit—thinks such discovery could be a big deal:

This is a truly historic day – to our knowledge, no one has ever gotten behind the scenes to examine how student-athletes’ current and future rights in their images are divided up and sold.

It was also noted in the article that the Hausfeld firm is attempting to link the O’Bannon  case with a similar class-action suit filed by ex-NCAA football player Samuel Keller.

If O’Bannon et al were to win the case, Rivals offered that such a judgment could “lead to former student-athletes getting a cut of the multi-billion dollar college sports revenue pool and dramatically impact the way college athletics operates.”

As GamePolitics has reported, former college athletes have filed a trio of lawsuits this year alleging that the NCAA and video game publisher Electronic Arts profited from the unlicensed use of their images in video games based on college football and basketball.

If successful, the suits have the potential to change the way the sports licensing game is played. What are the chances that will happen?

IGN has posted an interview with litigation support/public relations expert Jason Maloni, whose firm represents Roger Clemens, among others. Maloni comments on the implications of the lawsuits for the NCAA and EA:

Technology is a huge part of it. When I was growing up playing Space Invaders, you couldn't be one of the characters in the game. But with sports games, it's become such a huge phenomenon to assume the identity of your favorite athlete, and it only increases the bond people have with both the game and the team. That's why the pro and collegiate ranks love this type of branding...

 

I expect the impact for EA Sports will be minimal. The company is still going to produce games and derive a profit. The NCAA and large institutions stand to lose a small part of their current revenue... however, they are making [money] hand over fist. I don't think compensating these athletes in some way at the end of the day going to put a crimp in their budgets. College sports are a big business and it will remain a big business...

Like a lot of laws, it takes someone to stand up and say this isn't right. You might also be seeing a growing sympathy for former athletes. Not everyone goes on to the pros or gets mega contracts. I think student athletes are seeing what former pro athletes have done recently seeking restitution against the NFL for the use of their images.

By "pro athletes," Maloni is referring to the recent $26.25 million settlement that a group of retired NFL players reached with the former union over the unlicensed use of their images in EA's best-selling Madden franchise.

The sports video game business is clearly in a period of legal upheaval as yet another class-action suit involving the licensing of athletes' images has emerged.

In the latest development, former UCLA power forward Ed O'Bannon is the lead plaintiff in a federal class action suit charging that the NCAA unlawfully deprived former student athletes of compensation for the use of their likenesses in, among other things, video games, DVDs, jerseys and stock video footage.

O'Bannon led UCLA to the 1995 NCAA Championship and played for three seasons in the NBA.

Michael Hausfield, whose firm, Hausfield LLP is representing O'Bannon and other members of the plaintiff class, offers this comment in a press release issued this morning:

No one has a right to own or control another person’s image or likeness for eternity without providing fair compensation. Former student athletes should have a voice in how their own images or likenesses – once they are no longer students – are used throughout their lifetime.

In his Sports Law column for Sports Illustrated/CNN, Vermont Law School professor Michael McCann terms the stakes in the case "enormous." McCann's full column is worth a read. Here's a taste:

There are two core areas of law implicated by O'Bannon v. NCAA.

First, by requiring student-athletes to forgo their identity rights in perpetuity, the NCAA has allegedly restrained trade in violation of the Sherman Act... Student-athletes, but for their authorization of the NCAA to license their images and likenesses, would be able to negotiate their own licensing deals after leaving college...  For example, if former student-athletes could negotiate their own licensing deals, multiple video game publishers could publish games featuring ex-players. More games could enhance technological innovation and lower prices for video game consumers.

Second... the [former players argue that] NCAA has deprived them of their "right of publicity." The right of publicity refers to the property interest of a person's name or likeness, i.e. one's image, voice or even signature...

It's important to note that the O'Bannon lawsuit is directed at the NCAA, not video game publishers. In addition, it deals only with licensing issues relating to former, not current NCAA athletes. On that score, however, O'Bannon requests that a trust be established with any funds won in the case; such proceeds would benefit today's players when they are finished with their collegiate careers.

In addition to the O'Bannon case, a pair of recent class-action suits by former college football players Sam Keller and Ryan Hart target the NCAA and Electronic Arts over similar licensing issues. And, as GamePolitics reported last month, retired NFL players won a $26.5 settlement with the National Football League Players Association over their unlicensed use in EA's popular Madden series. EA was not a defendant in that case, but some militant voices among the retired players advocate pursuing the Madden publisher at some future point.

Turbulent times, indeed...

The long-awaited NCAA Football 2010 launches today and you can count Florida Gov. Charlie Crist (R) among the game's fans - and its players.

Orlando's WESH-2 reports that the Guv was on hand at EA's Tiburon Studios for an NCAA '10 launch event. Crist praised not only the game but the industry's positive economic impact on Florida's economy:

This is so cool that EA Sports, [that] Tiburon is right here in Florida...

 

The realism of [the game] is what just blows you away... This is the knowledge-based economy we want to continue to build throughout the state.

It's great for Florida. It's great for jobs. You know in this economy especially, looking for new and innovative ways for people to have gainful employment and the pride that goes along with that. It's so important to so many people.

Crist, who quarterbacked the 1976 Wake Forest team, even appeared in the game dressed in full uniform, courtesy of NCAA '10's Team Builder feature. In a demo of the game run by Tiburon developers, Crist scrambled and passed the Demon Deacons to a four-play touchdown drive.

In comments after the demo, Crist was a good sport about his NCAA '10 character's performance:

I love college football. I wasn't ever very good. The guy on the screen was good. You're very generous.

El Mundo Tech has several videos of the event.

NCAA Football 10 launches at midnight with a pair of lawsuits filed by one-time college football stars hanging over its head.

The former players allege that they weren't compensated for the use of their likenesses. On CNBC this morning, Sports Business Reporter Darren Rovell covers the controversy and concludes that the players will win their lawsuit:

If the copies of Electronic Arts' NCAA Football '10 that we received are the same that hit stores at midnight, the damages against the video game company and the NCAA could grow in the suit against them...

I reviewed the top 10 players in college football... Every single one... was within two inches of their real height and 10 pounds of their real weight in the game. Four athletes... were listed at their exact heights and weights. Every single one of them had the correct eligibility status and 9... had the correct birthplace listed on the in-game bio page.

All jersey numbers were accurate, including [Jeremiah] Masoli, who switched his number from 2 to 8 in the offseason... [Tim] Tebow is wearing a big wristband on his right arm in the game, as he does in real life...

Should [plaintiff Sam] Keller eventually prevail in this lawsuit, as I believe he will, all the athletes who were infringed on this year will be entitled to get cut in on a piece of the damages.

Via: Fanster

Yesterday, GamePolitics reported that two more former college quarterbacks have sued EA over the alleged inclusion of their likenesses in the best-selling NCAA Football series of games.

Ryan Hart of Rutgers and Troy Taylor of Cal filed their suit in New Jersey Superior Court. In May, former Nebraska QB Sam Keller lodged a similar complaint against EA.

While some observers have ridiculed the athletes' claims, columnist Jon Solomon of AL.com, a website incorporating several Alabama newspapers, believes the allegations have merit:

The NCAA insists that college athletes shouldn't be sales tools... What does that mean? Crossing that line has been awfully blurry, even before the video game lawsuits.

Why do you think fans buy No. 8 Alabama jerseys and No. 15 Florida jerseys? It's no coincidence the punter's jersey number doesn't hang in stores next to those of Julio Jones and Tim Tebow...

There is no question EA Sports identifies individual players. If this were an open-records request by a media outlet, universities would redact every video game player, citing personally identifiable information. Funny how that works, isn't it?

All it takes for a major NCAA mess is one sympathetic judge or jury to an athlete's claim of exploitation. Ironically, that forum could come from video games, which are wildly popular with the very college athletes whose identities are being used.

Today's news brings more legal headaches for Electronic Arts.

Last month, GamePolitics reported on a federal class-action lawsuit filed by former University of Nebraska football player Sam Keller. The one-time college quarterback charged that EA used his likeness in its popular NCAA Football game franchise without his permission. Keller's suit also names the NCAA as a defendant.

One-time Rutgers QB Ryan Hart (left) and former University of California QB Troy Taylor filed a similar lawsuit in New Jersey Superior Court, according to MyCentralJersey.com. EA Sports spokesman Rob Semsey told the website:

EA, the NCAA and CLC (Collegiate Licensing Company) have reviewed the complaint, and do not believe that the claims have merit. EA, the NCAA and CLC regularly conduct reviews of EA's NCAA-branded games, and we do not believe that any violations of student-athlete rights or NCAA by-laws have occurred.

GP: It's unclear why Hart and Taylor filed a state suit against EA and did not simply join Keller's federal class-action. Perhaps some of our attorney readers can suggest a reason?

As GamePolitics has reported, Electronic Arts may soon face a lawsuit by retired NFL players who believe their likenesses were unlawfully incorporated into EA's best-selling Madden game. But former college players now want their slice of EA's money pie as well.

SF Weekly reports that a one-time college quarterback is now making the same claim as NFL retirees in regard to EA's popular NCAA Football and NCAA Basketball franchises. Samuel Keller (left), formerly of Arizona State and Nebraska, is the lead plaintiff in the class action suit.

From SF Weekly:

The suit [claims] in its first sentence that it "arises out of the blatant and unlawful use of [NCAA] student likenesses in videogames produced by [EA]... to increase sales and profits." This, the complaint continues, is abetted with a wink-and-nod assist from the NCAA, which "intentionally circumvents the prohibitions on utilizing student athletes' names in commercial ventures by allowing gamers to upload entire rosters, which include players' names and other information, directly into the game in a matter of seconds..."

This, the suit alleges, is a symbiotic relationship between the NCAA and EA that leaves the student athletes -- who make this whole venture possible -- empty-handed.

 

So it rankled Keller to note that "with rare exception, virtually every real-life Division I football or basketball player in the NCAA has a corresponding player in Electronic Arts' games with the same jersey number, and virtually identical height, weight, build and home state. In addition Electronic Arts often matches the player's, skin tone, hair color, and often even a player's hair style."

DOCUMENT DUMP: Grab a copy of the lawsuit here.