By Robert Alan Brookey and Thomas P. Oates
About five years ago, in a graduate seminar on video games studies at Northern Illinois University, a curious observation was aired during a seminar discussion about avatars and identity. One of the students had a fiancé who played football for a Big Ten school, and had appeared in one of the Electronic Arts (EA) NCAA Football video games. He made the discovery while playing the game.
Around this same time, Ed O’Bannon, a former basketball star at UCLA similarly discovered that his likeness was included in EA’s popular NCAA Basketball game. As was the case with the example from the NIU classroom, O’Bannon was not informed of his inclusion in the game, his permission was not sought, and he received no compensation for the use of his image. NCAA rules forbid players from receiving financial compensation for their college exploits, even years after the fact. In this case, O’Bannon’s likeness was included in the video game as part of the 1995 National Championship UCLA team. O’Bannon was not identified with his name, but his bald head, height and weight, left-handed shot, and uniform number left no doubt as to who was being represented.
O'Bannon filed a lawsuit, citing the fact that he never gave his permission for his likeness to be used in the game, and he never received any compensation, even though he had not been a college player for more than a decade. The NCAA claimed that such compensation would destroy the “amateurism” of college sport. The organization had long been wary of the possibility of such a challenge, and was prepared to defend its careful legal construction of “student-athletes,” which the NCAA insisted left the players without a legitimate claim to normal workplace regulations.
A recent ruling handed down by a California court rejects the NCAA’s longstanding claim that, as “student athletes,” those who play the games have no claim to financial compensation. The NCAA can no longer bar schools from capping compensation below the cost of attendance or establishing limited trust funds for athletes. The ruling will not go into effect until July 1, 2016, but it has broad implications for college sports generally.
Specifically where video games are concerned, the ruling may prove to be a moot point. As is mentioned in Meredith M. Bagley and Ian Summers' chapter on the EA Sports NCAA Football game in our forthcoming book Playing to Win: Sport, Video Games, and the Culture of Play, the 2014 version of the game will be the last. Even prior to this ruling, the NCAA and EA Sports had decided to discontinue their association with licensed games. In fact, the NCAA had sued EA basically blaming the video game company for irresponsibly using athletes' names and likenesses. Given that these games have been produced for over two decades, it seems surprising that the NCAA was either unaware or unconcerned about these games until they themselves were sued. Or, on reflection, perhaps it’s not surprising at all.
What can be said with some certainty is that the decision to discontinue these games has already had important repercussions. It has resulted in layoffs at EA Games. It has also eliminated a revenue stream for the NCAA, and has been a factor in the organization’s recent decision to empower the wealthiest conferences to operate by different rules, including the possibility of compensating athletes beyond the current limits (which do not even cover the full cost of attendance).
The NCAA is appealing the O’Bannon ruling, so the fate of the lawsuit is uncertain. It seems likely, however, that whatever the outcome, the financial landscape of college sports is forever changed. The NCAA may be left to rue the reality that, unlike in a video game, there is no restart button when events spin out of control.
Robert Alan Brookey is Professor of Telecommunications at Ball State University where he also serves as the Director of Graduate Studies for the MA program in Digital Storytelling. He is the author of Hollywood Gamers: Digital Convergence in the Film and Video Game Industries (IUP, 2010).
Thomas P. Oates is Assistant Professor of American Studies and Journalism and Mass Communication at the University of Iowa.