A cocktail-napkin calculation about what’s at stake in former NCAA players’ lawsuit against EA Sports arrived at a potential cash-and-prizes value of $US1 billion. But as apocalyptic as that total sounds, Electronic Arts doesn’t sound too worried.
“We could lose billions more if a giant meteor hits the earth,” spokesman Jeff Brown told CNBC’s Darren Rovell, who whipped up the estimate today. “We’re not planning for either outcome.”
Well that’s good to know, although it isn’t reassuring that Electronic Arts is in charge of plans for extinction-level asteroid deflection. I’d rather they outsource that to BioWare.
Kidding aside, I’m not sure how to take Rovell’s figuring, which gained a lot of traction largely because he is the nation’s biggest name covering sports business. The pricetag assumes a few things, not least is that the players prevail in this class action suit. They very well could, but their case against EA Sports depends upon a finding, under Indiana state law, that EA knowingly, willfully or intentionally violated players’ rights to publicity.
Now, they allege conspiracy between EA and the NCAA to keep the subject of paying players for their likenesses out of the question, but that is not an open-and-shut case. Second, Electronic Arts contends their depictions of athletes, even celebrity athletes, in a realistic sporting environment, are works protected by the First Amendment. Before you go snickering, that’s a claim upheld by a federal judge, in a lawsuit brought by Cleveland Browns hall-of-famer Jim Brown.
But after that, I think Rovell’s got a problem with his math. His calculation assumes that there are 6,875 Football Championship Subdivision players (formerly Division I-AA) included in all versions of the game. They aren’t. They haven’t ever been on the PS3 or Xbox 360 versions, for starters, and I forget whether they were on such platforms as the Wii or PSP but I doubt it. That cuts into the $US137.5 million he estimates they’d be owed ($1,000 for each player, featured in 20 different versions from 2007 to 2009).
Rovell himself acknowledges that just because unauthorised use of likeness is proven in the case of one player doesn’t mean that less recognisable players can prove they are identifiable on the same grounds.
If there is a grave threat to EA Sports or to its NCAA Football, it’s that the football and men’s basketball players could prevail and that any works going forward would either have to compensate them for the use of their likeness (a headache no one in the NCAA would ever want to contemplate, especially as it has ramifications for Title IX compliance), or that it no longer licenses video games as a result.
If that comes to pass, I’ve speculated that there could be a “third way” in which EA could continue with an NCAA Football that uses the university colours, logos, nicknames and symbols, which are not in dispute, while randomising out the players’ appearances and attributes and still delivering a game whose teams reflect, collectively, real-world expectations.
It’s possible that such contortions are too much of an effort, for a product the public would view as crippled. That said, NCAA Football is ramping up its investment in the “Road to Glory” career mode, in its created-teams support, and in its “Coaching Carousel”, which are modes whose rosters aren’t necessarily as dependent upon reality and which decreasingly reflect real-world teams and players the deeper you go, with a complete roster turnover usually by the fourth year.
That may be the survival plan EA Sports is working on as we speak. Not saving the Earth from giant planet-killing asteroids.
Electronic Arts Could Lose $US1B to NCAA Athletes [CNBC’s Darren Rovell via USA Today]