Over the past few decades, the market for video games in the United States has grown exponentially and has become a wildly successful and lucrative business within the entertainment industry. Sport video games have become a particularly flourishing genre of the industry and comprise approximately 15.3 percent of total game sales.
Entertainment and video game manufacturer Electronic Arts is a leviathan in the sports video games market and prides itself on its unparalleled ability to provide visual authenticity in replicating a sport.
Due to rewarding licensing contracts, publishers such as EA are granted the legal ability to brandish league logos, teams, uniforms, exact specifications of stadiums and coach and player likenesses to enhance the reality of their professional and collegiate sports games.
Of course, EA compensates professional athletes for the use of their identities in the wildly popular Madden NFL and NBA Elite video game franchises through an agreement reached between EA, the NFL, the NBA and each league’s players association.
Our Florida Gator athletes, on the other hand, receive no such lucrative royalties from EA’s NCAA Basketball or NCAA Football game franchises due to restrictions set forth by suffocating NCAA bylaws, which require student athletes to maintain their amateur status and are therefore prohibited from being compensated when their physical likeness is used in any commercial products. Just imagine the profits Florida accumulated selling generic No. 15 jerseys throughout the Tim Tebow era.
In the summer of 2009, Sam Keller, a former University of Nebraska quarterback, filed a class action lawsuit in the California Northern District Court on behalf of various college football and basketball players. The crux of Keller’s argument was that the images of student athletes were exploited and used without permission by EA to construct a realistic representation of college sports in the NCAA Football and NCAA Basketball video game franchises. Keller claimed EA deprived him and other collegiate athletes of their publicity rights and right to profit from their own images. The athletes involved seek to recoup profits from EA and to seize games that continue to infringe on athletes’ rights.
Under the California law in question, Keller not only must establish that EA utilized student-athlete likenesses in its video games but also must prove that EA benefited specifically through the use of such exploited representation.
Keller alleged that EA’s illegal use of player likeness in its collegiate sports games is integral to the games’ heightened realism and in turn has translated into increased sales and increased revenues for EA. According to Keller’s complaint, the increase in revenue would provide EA with a commercial advantage through the use of student athlete likenesses and therefore is in violation of California statute.
In 1994, McFarland v. Miller established that the doctrine of the right of publicity has indeed provided protection to individuals (in this case, student athletes) to regulate the commercial value and exploitation of one’s identity or likeness and to lawfully prohibit others from unjustly profiting from such use .
But since collegiate athletes are required to comply with NCAA bylaws as a precondition to participate in NCAA-sponsored sporting events, the court may very well find that Keller and his class lawfully have waived their publicity rights by means of their signed agreement with the NCAA.
If the court’s final verdict is in favor of Keller and the class, the NCAA’s relationship with EA would change drastically along with the valued amateur status of student-athletes. The NCAA and EA could resolve this issue by altering the currently established and suffocating NCAA bylaws to allow usage of student athlete likenesses and contribute a fair percentage of royalties from the video games to the Student Athlete Opportunity Fund. This fund would then provide former and existing student athletes with monetary assistance upon demonstration of financial or academic need.
It must be recognized that most student athletes will not move on to the pros, play a game they love for a career, bank millions of dollars, retire and live the rest of their lives luxuriously, relaxing on the beach. Nevertheless, they sacrifice their bodies, compromise their GPAs and forfeit months at a time to train, practice, travel and perform.
In any other situation, such an extenuation of labor and physical risk coupled with a marketable image would reap compensation. Collegiate athletes should be no exception.
Brett Wagner is a UF student.
