By Kadence Otto, Ph. D., Associate Professor
Western Carolina University
The NCAA’s latest filing against EA Sports and CLC is, yet, another example of its failure to take responsibility for its actions. The NCAA filed suit against its former business partners for “failing to protect college sports’ governing body in settlement talks over the alleged use of athletes’ likenesses in video games” (Solomon, AL.com). The NCAA claims that:
…when EA contracted for the license of the NCAA’s and the NCAA’s member institutions’ intellectual property for use in the video games, EA expressly agreed not to include student athlete names and likenesses in the football and basketball video games…and that EA would bear the risk that its video games violated certain third-party rights, including the right of publicity…and hold the NCAA and CLC harmless for any claims or damages. (Solomon, AL.com)
For this claim, the NCAA cites a 1999-2001 Basketball Video Game Licensing Agreement between EA and CLC.
The problem with the NCAA’s filing is two-fold. First, since the NCAA is a non-profit organization, it is required to meet its legal duty—the duty of obedience. Under the duty of obedience a non-profit organization is not permitted to act in ways that are inconsistent with its central goals and instead must act in ways that reflect faithfulness to its mission. So, what is the NCAA’s mission? The Fundamental Policy, Basic Purpose of the NCAA is “…to maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body and, by so doing, retain a clear line of demarcation between intercollegiate athletics and professional sports” (NCAA Division I Manual, 2012-13, Bylaw 1.3.1). Additionally, its Principle of Amateurism reads “…student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises” (NCAA Division I Manual, 2012-13, Bylaw 2.9).
How the NCAA thought that engaging in a multi-year, multi-billion dollar business deal with EA Sports to produce video games is aligned with its Basic Purpose (i.e., its reason for existing) and its Principle of Amateurism is beyond me; albeit not surprising, since the “business interest” in intercollegiate athletics existed prior to the NCAA’s founding1.
This brings me to my second point. The fact that the NCAA argues that it should be “held harmless” for any claims or damages as a result of EA’s alleged actions is perhaps even more troubling than its first claim especially when one considers that, as evidence, the NCAA cites a contractual agreement that is over a decade old. To make matters worse, one of the NCAA’s own, Director of Corporate Alliances, Peter Davis’ 2003 email correspondence with EA evidences the contrary. Emails suggest that the NCAA knew what EA was doing and how it was going about doing it (Solomon, AL.com). I wonder how many non-profits have a salaried position titled ‘Director of Corporate Alliances’? The very name of this position seems to be incongruous with the duty of obedience (but I digress).
You see, the problem was that no one, not until O’Bannon et al. that is, had challenged the NCAA’s blatant violation of its own principles. So what message will the NCAA’s latest maneuver send to Judge Claudia Wilken? In my mind, EA Sports did the right thing (finally)—they admitted that they were in the ‘wrong’ and paid the consequences for their actions. A $40 million settlement most likely looks really good to EA at this point. As for the NCAA, it’s going to go kicking and screaming like a child who knows he’s in trouble and instead of admitting what he did was wrong, he lashes out at another kid (EA and CLC). Additionally, we are all well aware that the NCAA is very good at issuing edicts and dictating orders—they are not good at obeying their own. The bottom line is that Judge Wilken, in all of her wisdom, will no doubt see the hubris of the NCAA.
In sum, we stand at a crossroads. More than a century later, the proletariat has risen up. The importance of O’Bannon cannot be understated. If O’Bannon settles, the NCAA will get a ‘slap on the wrist’, similar to the NFL’s recent $765 million ‘wrist slap’ for withholding evidence regarding traumatic brain injuries and football. A settlement similar to the NFL’s will not substantially hurt the NCAA financially, nor will it fundamentally change the way the NCAA “does business”. According to lead plaintiff Ed O’Bannon, he “…would like to see the way the NCAA does business change”. Well Ed, you’re up against a real Goliath here, and the only way to fundamentally change the way the NCAA “does business” is to take the NCAA to trial. So, find a sling shot, change your name to “David”, and see if you can win this thing.
1. The prize for winning the very first intercollegiate competition, a rowing match between Harvard and Yale in 1852, “was a pair of expensive black-walnut oars”, and “no one complained that the amateur nature of the event was cheapened because a…railroad owner sponsored the event in the quest for rail profits” (Smith 1985, p. 223; Smith 1993, p. 432).
