By Ryan M. Rodenberg
Inevitable.
If one had to pick an adjective to describe the recently-filed class action lawsuit against the National Collegiate Athletics Association (“NCAA”), video game manufacturer Electronic Arts (“EA”), and Collegiate Licensing Company (“CLC”), “inevitable” would be the most likely choice.
In the wake of the White v. NCAA settlement last year, the NCAA is now faced with another class action suit in the form of Keller v. NCAA, EA, and CLC. With video game manufacturers paying labor unions in the major professional team sports millions of dollars in licensing fees in exchange for the right to use actual names and likenesses, it was only a matter of time before litigation in the college sports context occurred. The fact that video game technology has improved to the point where player depictions are of near photographic quality also contributes to the inevitability of this case. Long gone are the days of stick men on the Atari 2600 or Nintendo Entertainment System.
Lead plaintiff Sam Keller is a former starting quarterback for Arizona State University and the University of Nebraska. He filed his class action complaint on May 9, 2009 in U.S. District Court for the Northern District of California. Although the litigation is in its infancy, it is possible to “play call” what some of the claims and defenses between the parties are likely to be, as Keller’s complaint goes far beyond federal civil procedure Rule 8(a)’s requirement of “a short and plain statement of the claim.”
For example, Keller wastes no time in outlining the impetus for the lawsuit. In the opening substantive paragraph, Keller states that the “suit arises out of the blatant and unlawful use of NCAA student likenesses in videogames produced by EA” (p. 1). The complaint’s detailed introduction continues, explaining how the alleged impermissible use occurs:
Despite clear prohibitions on the use of student names and likenesses in NCAA bylaws, contracts and licensing agreements, EA utilizes the likenesses of individual student-athletes in its NCAA basketball and football videogames to increase sales and profits. EA also 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. Rather than enforcing its own rules, the NCAA and its licensing arm, the CLC, have sanctioned EA’s violations (p. 1).
After its introduction, Keller’s complaint highlights a number of anecdotal examples of near-perfect matches between player likenesses featured in EA’s football and basketball video games and actual individual players. Pointedly, Keller alleges that:
With rare exception, virtually every real-life Division I football or basketball player in the NCAA has a corresponding player in EA’s games with the same jersey number, and virtually identical height, weight, build, and home state. In addition, EA matches the player’s skin tone, hair color, and often a player’s hair style” (p. 4).
Keller’s specific allegations are multi-faceted. The causes of action common to the proposed class of “all NCAA football and basketball players listed on the official opening-day roster of a school whose team was included in any interactive software produced by EA” are:
(i) Deprivation of rights of publicity as a violation of Indiana statutory law (against NCAA);
(ii) Deprivation of rights of publicity as a violation of California statutory law (against EA);
(iii) Deprivation of rights of publicity as a violation of California common law (against EA);
(iv) Civil conspiracy (against all co-defendants);
(v) Violation of California’s Unfair Competition Act (against EA);
(vi) Breach of contract (against NCAA); and
(vii) Unjust enrichment (against EA and CLC).
Of the seven causes of action, Keller’s breach of contract claim is the most interesting, as the plaintiff has creatively turned the national letter of intent and annual scholarship agreement on their collective heads to argue, among other things, that the NCAA failed “to insure and protect class members’ rights…when it established contractual relationships with [EA and CLC]” (p. 20). Keller cites NCAA Bylaw 12.5 that “specifically prohibits the commercial licensing of an NCAA athlete’s ‘name, picture or likeness’” (p. 4). In so doing, Keller is seemingly positing that such bylaw is incorporated by reference into the annual contract each Division I athlete signs acknowledging the “NCAA’s rules on prohibitions on the commercial use of their name, picture or likeness” (p. 4).
At the time of this writing, the NCAA and its co-defendants had yet to file their answer to Keller’s complaint. Nevertheless, their defenses can be hypothesized. The NCAA would likely use the national letter of intent and/or annual scholarship agreement as a shield and opine that the language in one or both serves as de facto consent to the type of name and likeness use at issue. Similarly, such language may be offered as evidence of each athlete’s waiver and release of certain claims. Finally, the NCAA will likely posit that one or both of the agreements constitute an assignment of certain commercial and publicity rights from the individual athlete to the NCAA and its member schools. The contractual provisions in the agreements between and among the co-defendants will also be meaningful. Given the foreseeability of a lawsuit such as Keller, EA and CLC may have insisted on the presence of an indemnification clause. If so, the NCAA may bear the brunt of the legal defense costs and the amount of any settlement or judgment.
Keller alleges that the NCAA’s 2008 revenues were $614 million and EA’s 2008 fiscal year revenues were $3.67 billion. With no video game-related revenue being directly paid to the individuals whose likenesses are featured in such games, Keller is no surprise. The surprise would be if this case results in a jury verdict instead of a settlement or non-jury disposition such as a summary judgment.
Ryan M. Rodenberg teaches sports law at Indiana University – Bloomington. He can be contacted at rmrodenb@indiana.edu. © Ryan M. Rodenberg 2009.
