As multiple lawsuits have been brought in multiple venues by multiple former college athletes—some of whom are actually more recognizable as professional stars—I've tried to pull back to the big picture of what really faces video gamers and (principally) EA Sports in the parade of litigation over unauthorized use of likenesses in sports video games.
Any ruling adverse to EA Sports or the NCAA could, theoretically, require college football video games to be published with absurdly scrambled and anonymized rosters. At best we could see an unrecognizable Alabama backfield; at worst, a game in which N.C. State is a preseason No.1.
We're not there yet. Still, that outcome is all that gamers care about, not who gets paid when a gavel comes down.
Over the past three years, EA Sports has been named in several actions, some dismissed, some still pending. The lead defendant in all of these is their licensing partner, the NCAA, which has profited from the commercialized use of amateur players' likenesses for far longer than sports video games have even existed.
Even if EA has extricated itself from lawsuits against the NCAA—even if federal courts have ruled EA Sports has a First Amendment right to the indirect portrayal of some collegiate athletes—what happens to college sports' governing body has serious ramifications for video games' dominant sports publisher.
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With that giant preamble out of the way, a two-time NCAA champion and one of the NBA's greatest players ever, Bill Russell of the University of San Francisco, recently filed suit against both the NCAA and EA Sports for the unauthorized use of his likeness in NCAA Basketball 09. He joins several retired players, spanning the range of greatness from Nebraska quarterback Samuel Keller to UCLA nation champion basketballer Ed O'Bannon to NFL hall of famer Jim Brown, suing the video game publisher over what they say were recognizable simulations of them.
Russell alleges that the "Tournament of Legends" mode in NCAA Basketball 09 (released 2008) exploits his reputation while using every identifiable characteristic but his name. The game mode allowed players to create a 64-team bracket of the NCAA's greatest teams whose players, much like the current NCAA Football, were identified not by name but by number and position.
Any casual fan would know that "USF Center #06," whether in 1956 or 2008, means Bill Russell. The Dons retired his number years ago. Indeed, pre-release communication from the development team itself all but named Russell as a showpiece in the mode. From an EA Sports' producer's blog written for Operation Sports in November 2008:
1950s: One of the best players of all time played during this era. The University of San Francisco's center, #6, is arguably one of the best players to play that position. He won two championships and many many more at the professional level. Any player who averages 20 points and 20 rebounds per game during his college career, is definitely worth playing with. However, you can't forget about 1957 Kansas' center #13 (who averaged 30pts and 18rpg in college) or 1954 LaSalle's ball handling big man.
If most basketball fans would recognize Russell as the first player, they'd absolutely know Wilt Chamberlain is the second. For the third, a two-second Google search identifies him as Tom Gola.
EA Sports, through Electronic Arts' principal spokesman, Jeff Brown, had no comment on Russell's lawsuit to Bloomberg news. I don't blame him. This foofaraw seems unresolvable until one case reaches the Supreme Court or, less likely, the Congress establishes some law about compensating college athletes.
As a gamer, I'm happy with either outcome, because I am exasperated by the series of incremental developments, which each side triumphantly emails me as proof they will prevail and their adversary is standing on a foundation of sand. I've tried to keep coverage focused either on new actions—the filing of a new suit—actual verdicts, or dismissals of complaints. As this concerns sports in North America, I only want a final result with a winner. I'll respect any ruling that means one side can say to the other, definitively, "Scoreboard."
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See, I really no longer give a damn. Dan Wetzel of Yahoo! Sports has said it best. Major collegiate athletics—which mainstream sportswriters unironically call a university's "revenue sports"—are about sticking out your hand for money. It's the same game if you are a school president or an athletic director getting his palm greased by a bowl executive or a TV network; a player getting a free car, a trip to Miami or tattoos; a loaded alumnus providing a kid some walking around money, or a lawyer representing any of these.
If all sides get paid, I don't care. If everyone gives it to charity and funds women's field hockey and Title IX compliance, fantastic. I only want to know if we will have video games that reasonably approximate the reality of current college sports. or if we're going to have a key component of our enjoyment driven underground, where the Fairdale Kings need a month to create something that looks normal.
I am not a legal scholar, and neither is the vast majority of those who play these games or comment on them (yes, that means you). But let's get this to an up-or-down decision for good, rather than the injunctions, denied motions, appeals and dismissals that mean as much to the final score as a three-yard second-down pass in the first quarter. Unless, that is, someone wants to settle up before then and start the wrenching process of paying college players for the fruits of their labor and their self-evident celebrity, something I and most thinking college sports fans, viewers and video game players have been ready to accept for years.
I doubt that will happen, either. Electronic Arts and the NCAA are powerful entities. While legal expenses are a cost unit, not revenue, these two have a high threshold of pain for litigation. If these cases are going to be filed they probably want them to marinate in the court system for a good long while, to test the will of the plaintiffs.
This doesn't mean I'm rooting for one side or the other. I only want resolution. If that means it goes to the Supreme Court—an eminently pro-business, anti-worker Supreme Court, so be it. Until then, whether it's a basketball hall-of-famer suing EA Sports, or some guy I never heard of from Rutgers, they both mean about as much.
STICK JOCKEY
Stick Jockey is Kotaku's column on sports video games. It appears Saturdays.