Former Arizona State and Nebraska quarterback Sam Keller is suing the NCAA and its video-game partner, EA Sports, claiming they've gone too far in using the likenesses of college players who are prohibited from sharing in the games' profits.
The class-action suit, filed this week in U.S. District Court in California, claims the games make illegal use of football and basketball players' names — through the download of team rosters — and unidentified but scarcely hidden likenesses and that the NCAA condones the practice in violation of its own rules.
EA Sports, the NCAA and Collegiate Licensing Co., the Georgia-based marketing firm that represents the NCAA, "deliberately and systematically misappropriate players' likenesses to increase revenues and royalties at the expense of student athletes," says the suit, filed on behalf of every football and basketball player on an opening-game roster whose jersey number appeared in an EA game.
It asks for a jury trial. No damages are specified.
"I think the merits are very strong," said Steve Berman, managing partner of the Seattle-based Hagens Berman Sobol Shapiro, the firm representing Keller. Attorney Stuart Paynter of Washington, D.C., is also included in Keller's representation.
" I think it's pretty clear they're taking the players' likenesses and using them in the game," said Berman. "It's also pretty clear that the NCAA prohibits that. There's not supposed to be misappropriation, or an appropriation, of players' names or players' likenesses for profit. And so we think we have a pretty strong case that they've misappropriated, in violation of state law, these players' likenesses."
"A case like this usually takes a couple of years to resolve."
The NCAA on Thursday responded in a statement, "Our agreement with EA Sports clearly prohibits the use of names and pictures of current student-athletes in their electronic games. We are confident that no such use has occurred and that we will ultimately be dismissed from this lawsuit."
The suit comes amid a debate within the NCAA over increased commercial activity in college sports, including where and how to draw the line on the role of athletes. A task force weighing the issue recently re-emphasized that they not be exploited as sales tools, though it recommended guidelines governing the use of players' names and likenesses be loosened as long as it "does not portray the student-athlete in a manner as promoting or endorsing the sale or use of a commercial produce or service."
In licensing EA Sports to make and market video games, the association prohibits the identification of individual players. However, the lawsuit says, the only real restriction is not using their names on the virtual players' jerseys.
"With rare exception," it says, "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 matches the player's skin tone, hair color and often even a player's hair style."
Further, it says, each game "matches players' idiosyncratic equipment preferences such as wristbands, headbands, facemasks and visors."
Keller was one such athlete while playing at Arizona State from 2003-05 and Nebraska as a fifth-year senior in 2007. He now lives in Arizona.
EA Sports is headquartered in Redwood City, Calif.
Attorney and NCAA critic Pete Rush says he's not surprised by the challenge. "It would seem to have sound basis in the law," he says.
Rush, based in Chicago, represented Jeremy Bloom five years ago in his fight to regain his football eligibility at Colorado. An Olympic skier in addition to a star receiver, Bloom had violated NCAA rules by accepting skiing endorsements.
"It'll be fascinating," Rush says of Keller's suit. "I've always been concerned about when and how the NCAA procured a right to exploit the images of student-athletes. There is nothing in the national letter-of-intent that speaks to it. And attempts to seek assignment of these rights. .. would not be enforceable."
***
Contributing: Steve Berkowitz
