Two letters and a number. That’s all you need to be a household name in college football — or its video game, at least. But this year, when NCAA Football 14 hits shelves on Tuesday, South Carolina’s fearsome DE#7 and Texas A&M’s do-it-all QB#2 will be joined, for the first time, by active players appearing under their own names.
That’s thanks to the game’s new Ultimate Team mode, which like its implementation in Madden, NHL and FIFA, offers a huge pool of stars for gamers to collect and assemble into their best team to take online. Under a group licence granted to NCAA Football by the NFL Players Association, current NFL stars will appear in the game under their alma maters’ colours. The agreement does an end run on the knottiest problem of college sports video games — how to present real players in college uniform without violating their rights or NCAA amateurism bylaws — by going to the professionals.
Problem solved, right?
No. Not yet. Right now, it’s more like a diplomatic agreement between two sides that — on the matter of college players in video games — in fact oppose each other in court, in a case with existential ramifications for both.
In February, the NFLPA, along with the NBA Players Association and the NHL Players Association — both longtime licensors of EA Sports products — and the unions for Major League Baseball and Major League Soccer, filed a joint brief opposing Electronic Arts’ kitchen-sink defence in a federal lawsuit brought by the former Rutgers quarterback Ryan Hart.
EA had prevailed, at the district level, on grounds that had spooked the unions. Basically, Electronic Arts asserted that its presentation of Hart — just two letters and a number — in NCAA Football 2003 to 06, was a transformed use of likeness — modified beyond recognition — and a form of protected speech under the First Amendment, the same way The Social Network‘s cinematic presentation of Mark Zuckerberg didn’t require his permission or compensation.
It’s a claim that has even greater strength thanks to the 2011 Supreme Court ruling that found video games to be works of protected speech. It’s also a claim that threatens the necessity for group licenses, or any licensed use of likeness, of athletes whether college or professional, household name or not. Players’ unions make huge money from these licenses, which go to makers of memorabilia and authentic jerseys and commemorative DVDs, and video games.
“Once EA made that argument, our alarm bells went off,” Ahmad Nassar, the general counsel for NFL Players, Inc., which handles the union’s licensing, told me. “That argument would apply with equal force, if accepted by the court, not just to games EA makes, but any game — Activision, 2K — that any of those guys make.”
An appeals court sided with Hart in May. The case been sent back to district court. His claim is similar to that of another player, former Nebraska and Arizona State quarterback Sam Keller, and has ties to a third and even more notorious lawsuit also involving EA, brought by the former UCLA standout Ed O’Bannon. A judge will now rule on whether the O’Bannon case will be given class action status; if it is, it could force the NCAA to make settlement negotiations, rather than risk a judgment that bankrupts it or destroys the way it handles billions in television revenue.
So, here is why I wanted to talk to the NFLPA. If the union’s business and its players’ interests are so gravely threatened by Electronic Arts’ legal posture on the use of likenesses — and the NFLPA’s group licence for Madden is probably its richest deal — why continue to do business with EA? Why do more business?
“I think it’s more the opposite,” Nassar said. “We want the college players’ likenesses to be used,” and to be paid for, he said. “We think that will make a better game, we think EA will make more money, we think the NCAA would make more money.
“I view that as nudging them,” Nassar said. A policy of engagement, rather than isolation. “We greenlighted that [license] because we want to lead by example. We can’t grant the rights to University of Michigan players because we have no rights to the University of Michigan or its players. But you want to use Denard Robinson [now an NFL pro] in a college video game? Absolutely.”
There is no group licensing of current NCAA players’ likenesses. There is no individual licensing of player likenesses, either. This is at the heart of the Hart, Keller and O’Bannon lawsuits. In these cases EA Sports has been depicted as a co-conspirator with the NCAA to keep its own costs down by cutting players out of rightful compensation for the use of their images.
My opinion is that the blame is almost exclusively on the NCAA. Its quaint, unilaterally enforced concept of amateurism amounts to shielding its virginal athletes from the corruption of big-time money by selflessly pocketing all the dough itself. What noble martyrs.
If EA Sports has been operating with figleafs like numerical names and wink-and-nod features like roster sharing, it may make them liable — but it’s because of the NCAA’s head-up-its-ass approach to the reality of the big time athletics model it created itself. And communications churned up by these suits has shown EA agitated for the NCAA to reconsider its posture on the use of players’ actual names.
Now, whether the NCAA would require compensation for that use — and to whom it would go — is another hypothetical whose answer is unknowable. My opinion is if a group licence for college players was available to EA Sports, I believe it would pay for it — even as an added cost — for two reasons. One, a college football game with real players returns value above that cost. Ultimate Team with Jadeveon Clowney instead of DE#07 is only part of it. Real players give designers a lot more creative freedom in how they depict the game, career modes especially. Two, that cost represents another barrier for a competitor to hurdle.
Electronic Arts, however, finds itself backed against a wall by three lawsuits potentially worth billions in damages to those who have been recognisable, to any thinking person anyway, in these college video games for years. And EA’s burn-the-village-to-save-it approach, theoretically, could do away with the kind of licensing that sports video games today must pay to have any chance in the marketplace. It could also kill the thing people hate the most about EA Sports — the exclusive licence it holds to make an NFL video game.
In light of that, why should gamers sympathize with the NFLPA — which does, after all, exclusively authorise EA Sports and only EA Sports to use its members’ names and images to make video games?
“Every two months we get a letter from someone pissed off that there’s no NFL 2K5,” Nassar conceded. “But I think it’s a little shortsighted for people to think that way. It doesn’t just apply to sports video games. If you take [EA’s] defence to its logical conclusion, it’s not just college or professional athletes. Pictures of you and me on Facebook and Twitter could be incorporated in video games without our permission. Where none of us have the right to control our likenesses and images, it’s all controlled by the First Amendment and free expression.”
Electronic Arts hinted at this defence back in early 2012 when it was sued by the maker of a military helicopter over its appearance — “trade dress” is the legal term — in Battlefield 3. At the time, EA strongly implied it was making this matter a First Amendment question because of the 2011 Supreme Court ruling, and because prevailing could be a victory for games development on the whole, not just for the publisher. I pointed out exactly what the NFLPA did this February: that it could do away with not only the need to licence Madden, NBA Live or FIFA, but also automobiles in the Need for Speed series, notably Porsche. Privately, I was told that was not the publisher’s intent.
I recently asked Electronic Arts if it had made any assurances to any of its licensing partners regarding the strength of their existing relationships in light of the defence it’s adopted in Hart and Keller. An EA representative replied that the publisher doesn’t comment on pending litigation or contract terms, and declined comment on other questions I had, too — particularly whether it would pay for any group licence to use real NCAA players. Fair enough.
The NFLPA received at least some kind of verbal promise EA didn’t intend to nullify its licence if it prevails in Hart, but that’s not good enough for the union.
“The knee jerk reaction of gamers, I could absolutely see what you’ve said,” Nassar told me. “People might say, ‘Well, wait, if it means I have five different games to choose from, and people can even put projects on Kickstarter, then I like this. … But if the players are cut out of it, I think that there are some interesting things in development that are dependent on player involvement — things like headscans, or motion capture, or voices. Even if the First Amendment covers the passive use of someone’s likeness, if you need Tom Brady to say something, you need to pay him. There’s the chance games might take a step back from what we’re accustomed to.”
He has a point there. For example, each year the NBA photographs all of its players in high detail — particularly to capture their tattoos close-up. The only purpose I can imagine for these visual references are their use in video games. Without the cooperation of the league or its players’ association, that goes away. If paying a players’ union becomes just an optional cost to be cut, what do you think a publisher would do, and what would that do to your enjoyment of a game? Before you answer, remember that some people are still furious there are no sideline chain officials in NCAA Football.
These lawsuits are years from being resolved. In the end, in a perfect world, everyone would prevail but the NCAA. I think that’s a cartel that has one hell of a coming-to-Jesus moment in its future. But I want EA Sports to continue to make these games. I want them to pay players to use their real images. And I want to play the game that results from it. Nassar does too. He tells me he’s also a gamer.
“It’s like a playoff,” he said. “If college football had a true playoff, it would be even more popular. To me, it’s the same as a video game, if NCAA Football had all of the player names and their exact likenesses — not this halfway song-and-dance that waters down the product. Let’s incorporate everybody in there.”