• Brian Park

The Return of EA Sports College Football and Ongoing Legal Fight over Student Athlete Compensation

Updated: Jun 20


[1]


On February 2nd, 2021, Electronics Arts (EA) announced the highly anticipated return of their college football video game franchise.[2] EA will be naming the new game EA Sports College Football and will not be using the game’s old title, NCAA Football.[3] EA is currently working with the Collegiate Licensing Company (CLC) to gain permission from over 100 FBS schools to use their stadiums, uniforms, mascots, traditions, and names.[4] Even though an official release date has yet to be determined, the game’s announcement was long-awaited by fans since its discontinuation in 2014.


The EA Sports College Football video game franchise was negatively impacted by past legal battles between the NCAA and its athletes over the issue of athlete compensation. In 2009, Ed O’Bannon, a former UCLA basketball player, and other college athletes filed a class action lawsuit against the NCAA for its wrongful use of athletes’ images, commercially forcing EA Sports to discontinue its college football video game franchise.[5] Electronic Arts, Inc. and the Collegiate Licensing Company were named as co-defendants in the lawsuit.[6] O’Bannon and the other athletes argued that the NCAA’s rule disallowing players from profiting off of their their name, image, and likeness (NIL) was a direct violation of federal antitrust laws because it set the value of players’ identity rights at $0.[7] Even though the players' names were not specifically used in the college football and basketball video games, the players were unable to profit from their image and likeness which were used.[8]

In 2014, the U.S. Court of Appeals for the Ninth Circuit held that this NCAA rule was a clear violation of federal antitrust laws and stated that the NCAA would be in compliance with the court’s ruling if they allowed schools to offer student-athletes scholarships that included the full cost of attendance.[9] Both the NCAA and the plaintiffs appealed the ruling to the U.S. Supreme Court, who declined to hear the case.[10] In 2015, a Federal Magistrate Judge ordered the NCAA to pay around $46 million to the plaintiff’s lawyers for attorney’s fees and legal costs.[11] The NCAA also settled with the plaintiffs for $20 million for their NIL rights.[12]. EA and the CLC settled with the plaintiffs for $40 million for their improper use of the athletes’ images and likeness in the college football video games.[13] EA was willing to pay collegiate athletes for their NIL rights, but ultimately decided against it.[14] The NCAA’s unwillingness to allow its players to profit from their NIL rights and the looming possibility of another potential lawsuit forced EA to discontinue the games.[15]


The NCAA was founded on the idea of amateurism because it wanted to distinguish collegiate athletes from professional athletes.[16] Recently, however, the NCAA has shown a desire to allow collegiate athletes to profit from their NIL. In April of 2020, members of the NCAA Board of Governors supported the idea of allowing student-athletes to profit from third party endorsements, and receive compensation from social media or business endeavors that these athletes have started.[17] They asked all three NCAA divisions to consider these rule changes.[18] However, the board clearly stated that universities should not pay student-athletes for NIL activities.[19] This is a major shift for the NCAA, which has long been hesitant towards the ideas of paying its student-athletes, and signifies a major win for NCAA athletes.

Voting for the passage of NCAA legislation regarding student-athlete compensation and NIL rules is currently delayed due to an ongoing antitrust lawsuit against the NCAA.[20] Alston v. NCAA, was filed by current NCAA athletes concerning the restriction of “non-cash education related benefits.”[21] The plaintiffs assert that this restriction violates federal antitrust laws.[22] The U.S. Court of Appeals for the Ninth Circuit ruled that the NCAA was not allowed to prevent schools from giving “non-cash education related benefits to their student athletes.”[23] The NCAA appealed the Ninth Circuit court ruling to the U.S. Supreme Court, who agreed to hear the case.[24] This is the first time that the Supreme Court will hear a case involving the NCAA since 1984, and a ruling is expected by June of this year.[25] Hopefully the Supreme Court will provide some much-needed clarity on the issue of collegiate athlete compensation.


The pending Supreme Court decision, along with the NCAA’s recent willingness to shift its stance from its long-standing ideal of amateurism, has given many fans of the college football video game franchise hope that there will eventually be real athletes in the video game. There has also been growing optimism that the 2K Sports College Hoops NCAA basketball games will also return in the future after being discontinued in 2010.[26] The possibility of future NCAA sports video games is looking more certain, and with the large number of college sports fans interest in these games will likely be substantial.



References:

[1] easportscollege, For Those who never stopped believing, Instagram, (February 2, 2021), https://www.instagram.com/p/CKzCN0XDGqv/


[2] Michael Rothstein, EA Sports to Do College Football Video Game, ESPN, (February 2, 2021), https://www.espn.com/college-football/story/_/id/30821045/school-plan-ea-sports-do-college-football


[3] Id.


[4] Id.


[5] Samuel Draper. The Ed O’Bannon Case: How It Has Affected the NCAA and the Future Prospects of Paying Athletes, University of Baltimore Law Review, (March 24, 2017), https://ubaltlawreview.com/2017/03/24/the-ed-obannon-case-how-it-has-affected-the-ncaa-and-the-future-prospects-of-paying-student-athletes/


[6] Kevin Sweeney, Why Did EA Sports Stop Making NCAA Football Video Games, Sports Illustrated, (February 2, 2021), https://www.si.com/college/2021/02/02/ncaa-football-ea-sports-stopped-making-games


[7] Michael McCann, Key Questions, Takeaways from the NCAA’s NIL Announcement, Sports Illustrated, (October 29, 2019), https://www.si.com/college/2019/10/30/ncaa-name-image-likeness-announcement-takeaways-questions#:~:text=O'Bannon%20established%20that%20NCAA,players'%20identity%20rights%20at%20%240.&text=To%20be%20clear%2C%20college%20players,not%20mean%20colleges%20pay%


[8] Id.


[9] Id.


[10] Donald Remy, U.S. Supreme Court denies petitions in O’Bannon v. NCAA, NCAA, (October 3, 2016), https://www.ncaa.org/about/resources/media-center/news/us-supreme-court-denies-petitions-o-bannon-v-ncaa


[11] Jon Solomon, NCAA ordered to pay $46 million in Ed O’Bannon legal fees, CBS Sports, (July 13, 2015), https://www.cbssports.com/college-football/news/ncaa-ordered-to-pay-46-million-in-ed-obannon-legal-fees/


[12] Id.


[13] Tom Farrey, Players, game makers settle for $40M, ESPN, (May 30, 2014), https://www.espn.com/espn/otl/story/_/id/11010455/college-athletes-reach-40-million-settlement-ea-sports-ncaa-licensing-arm


[14] Sweeney, supra


[15] Id.


[16] McCann, supra


[17] Stacy Osburn, Board of Governors moves towards allowing student-athlete compensation for endorsements and promotions, NCAA, (April 29, 2020), https://www.ncaa.org/about/resources/media-center/news/board-governors-moves-toward-allowing-student-athlete-compensation-endorsements-and-promotions


[18] Id.


[19] Id.


[20] Dennis Dodd, Matt Norlander, NCAA expected to table planned vote on name, image, likeness rights amid Supreme Court case, Senate changes, CBS Sports, (January 9, 2021), https://www.cbssports.com/college-football/news/ncaa-expected-to-table-planned-vote-on-name-image-likeness-rights-amid-supreme-court-case-senate-changes/

[21] Id.


[22] Id.


[23] Greta Anderson, Court Panel Rules Against NCAA Restriction on Athletes Pay, Inside Higher Ed, (May 19, 2020),

https://www.insidehighered.com/quicktakes/2020/05/19/court-panel-rules-against-ncaa-restrictions-athlete-pay#:~:text=The%20case%2C%20Alston%20v.,between%20professional%20and%20college%20athletics


[24] Supreme Court agrees to hear NCAA athlete compensation case, ESPN, (December 16, 2020), https://www.espn.com/college-sports/story/_/id/30530625/supreme-court-agrees-hear-ncaa-athlete-compensation-case


[25] Id.


[26] Brian Mazique, How New NCAA License Laws could revive and open New Lanes for 2k Sports, Forbes, (October 30, 2019), https://www.forbes.com/sites/brianmazique/2019/10/30/how-new-ncaa-likeness-law-could-revive-and-open-new-lanes-for-2k-sports/?sh=1464cbff2ae7