Early May Update on Developments in the Player Likeness Lawsuit

It’s been a month now since last detailing the happenings related to the huge lawsuit that could shape the future of the NCAA and have lasting ramifications on sports video games. The hearing to determine whether the case will be considered class action could now be delayed by up to a month. It had been scheduled to take place on June 20. 

The potential delay is due to objections raised by the NCAA, CLC, and EA regarding new expert reports submitted by the plaintiffs. They asked that the reports be stricken or to have additional time to review them and depose the experts in order to craft one last pre-hearing filing. District Judge Claudia Wilken has since ruled the reports will be admitted but not yet whether a delay with the scheduled class action hearing will be granted.

In other news a filing by the plaintiffs provides additional evidence supporting their claims that the NCAA, CLC, and EA were concerned years back that the extent player likenesses were being represented in video games “adds to the argument that student-athletes should be unionized and receive a cut of the profits, etc.” Big Ten commissioner Jim Delany has now publicly stated the NCAA won’t settle the case.

Earlier/Summary Below

The player likeness lawsuit against the NCAA, CLC, and Electronic Arts is the culmination of two high profile filings that were combined as led by Sam Keller and Ed O’Bannon (and O’Bannon now heads it up). It alleges improper use of player likeness through various forms of merchandise and media including video games in which the parties in question conspired to avoid paying players for their rights. Some interesting details and claims regarding the case at hand were revealed when EA was reentered as a defendant after initially being dismissed.

EA has won a previous case regarding player likeness with the courts ruling video games are artistic works rather than commercial speech and therefore protected by the First Amendment. The Supreme Court in 2011 established forms of media, producing expressive works of art, are not subject to judgments based on incorporating someone’s name or likeness.

Recent uncovered emails have shown that NCAA representatives were well aware that players in games were based off real-life players. At one point the NCAA and EA had nearly reached an agreement to have actual player names included in the products. The EA Locker / Roster Share feature was a fallback option. With momentum clearly on the plantiffs’ side NCAA reps have begun to publicly express concern over the future of collegiate sports.

This consolidated case in California looks as though it will be going to trial and ultimately be the determining factor of how the NCAA proceeds in the future handling broadcasting rights, merchandising, and video games. Should a negative result come down, which one analyst has pegged as being a potential loss of $1 billion for EA, it would likely not just end the NCAA Football series but also with it any realistic possibility of college sports games being made in the future. The NCAA is currently seeking to block classification as class action. The trial now is slated to begin June 2014. Appeals following a decision could extend the fight through 2020.