Biggest Problem Facing College Sports: Not BCS, It’s Video Games

In May 5, 2009, Sam Keller, a former quarterback at Arizona State and Nebraska University, filed a complaint against Electronic Arts (EA Sports), the National Collegiate Athletic Association (NCAA), and the Collegiate Licensing Company (CLC) for using his likeness. Keller is bringing a class-action lawsuit on behalf of all NCAA athletes for the “blatant and unlawful use” of student-athlete likenesses in video games.

EA Sports has created a long line of profitable games, some of which are based on NCAA sports, including: NCAA Football, NCAA Basketball, and NCAA March Madness. For EA Sports games based on professional sports, Electronic Arts bargains with the players’ association for a license to use player names and their likeness. For example, if EA Sports would like to use player names and their likeness on Madden 2010, the NFLPA can, and have, assigned those rights to Electronic Arts for roughly $35 million per year, according to Keller’s complaint. EA pays the NFLPA a fee, the players obtain a royalty through the NFLPA, and their likenesses and names are used in the games. In its repertoire of games based on NCAA sports, EA Sports does not use the athletes’ names nor does it bargain with the NCAA and the CLC to use such. Additionally, EA Sports claims that the player’s likenesses are not being used.

Keller’s suit contends that EA Sports “intentionally circumvents the prohibitions on utilizing student athletes’ names in commercial ventures by allowing gamers to upload entire rosters, which include players’ names and other information.” As seen on ESPN’s Outside the Lines, gamers can easily download rosters from an EA Sports website.

Further, Keller is asserting, even though specific names are not used, EA Sport’s replication of an athlete’s jersey, number, height, weight, build, skin-tone, hair-color, hair-style, and accessories, i.e. wristband, headband, facemask, and/or visor, constitute a replication of that player’s likeness.

In one example, Keller uses Kent State running back Eugene Jarvis. Jarvis is 5-foot-5, weighs 170 pounds, wears number six and is a redshirt junior from Pennsylvania. In EA’s NCAA 2009, the Kent State running back is 5-foot-5, weighs 170 pounds, wears number 6 and is a redshirt junior from Pennsylvania. Keller contends that no randomized selection process would create a 5-foot-5 running back with the same number, weight, and background.

In the wake of Keller’s complaint, several similar cases have been filed against EA Sports, and/or the NCAA and the CLC. Cases brought by the likes of: Ed O’Bannon, you may remember him as being one of the O’Bannon twins that helped Tyus Edney, Cameron Dollar, and the rest of the 1994-95 UCLA Bruins win the NCAA National Championship in basketball; Byron Bishop, the former starting left guard for the North Carolina football team; and others. Pretrial motions for the Keller, O’Bannon, Bishop and other suits have been submitted recently and the court is now trying to determine whether each of the plaintiffs can join forces.

History and Background of the Applicable Law

Since their inception, intellectual property rights have continually expanded. Property rights now protect not only one’s personal property, good will, or interest in a business or product/service, but also protect one’s name or “persona,” and/or image.

In cases dating back to 1953 and perhaps beyond, courts have been protecting one’s “right to publicity.” In the 1953 case Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. involving two rival chewing gum manufacturers who were arguing over exclusive rights to use the image of a professional baseball player to promote their product, the court determined:

For it is common knowledge that many prominent persons (especially actors and ballplayers), far from having their feelings bruised through public exposure of their likenesses, would feel sorely deprived if they no longer received money for authorizing advertisements, popularizing their countenances, displayed in newspapers, magazines, busses, trains and subways. This right of publicity would usually yield them no money unless it could be made the subject of an exclusive grant which barred any other advertiser from using their pictures.

Protection of one’s persona and image is an outgrowth of the protection of intangible property rights. In the case of celebrities, athletes, or other famous persons, the name, persona and image may be as valuable as the good will of a business or other property they may own.

California Civil Code – Section 3344 states:

Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof.

So How Does One Make A Successful “Likeness” Claim?

Right of publicity is a state-law legal claim, so there is some variation of the law in different states. Generally, a plaintiff must establish three elements to hold someone liable for unlawful use of name or likeness:

1. Use of a protected attribute;
2. For an exploitative purpose; and
3. No consent given for the offending use

1. The Use of a Protected Attribute

The plaintiff must show that the defendant used an aspect of his or her identity that is protected by the law. Typically, this means a plaintiff’s name or likeness, but other personal attributes are protected as well. “Likeness” refers to a visual image of the plaintiff, whether in a photograph, drawing, caricature, or other visual presentation. The visual image need not precisely reproduce the plaintiff’s appearance, or even show his or her face, so long as it is enough to evoke the plaintiff’s identity in the eyes of the public.

The law protects other personal attributes or aspects of identity from unauthorized use as well. For example, courts have held that use of a celebrity’s voice can violate the right of publicity. (Midler v. Ford Motor Co.) One court held a defendant liable for using the slogan “Here’s Johnny” as a brand name for portable toilets because it sufficiently evoked Johnny Carson’s identity. (Carson v. Here’s Johnny Portable Toilets, Inc.) Courts have held defendants liable for using a photograph of the plaintiff’s race car in a television commercial, (Motschenbacher v. R.J. Reynolds Tobacco Co.), and creating a commercial featuring a robot decked out to resemble Vanna White and posing next to a Wheel of Fortune game board. (White v. Samsung Elec. Am., Inc.)

In all of these cases, the common rationale was that the attribute in question was sufficient to identify the plaintiff and evoke their identity for the public.

2. An Exploitative Purpose

The plaintiff must show that the defendant used his name, likeness, or other personal attributes for commercial or other exploitative purposes. There are exceptions for news reporting and other expressive purposes.

The right of publicity is the right of a person to control and make money from the commercial use of his or her identity. A plaintiff must show that the defendant used his or her name or likeness for a commercial purpose. This typically means using the plaintiff’s name or likeness in advertising or promoting goods or services, or placing the plaintiff’s name or likeness on or in products or services you sell to the public.

3. No Consent Given For The Offending Use

The plaintiff must establish that he or she did not give permission for the offending use.

Exceptions To The Prima Facie Likeness Claim

One of the exceptions to a prima facie likeness claim, one that will likely be a key element in Keller v. EA Sports, is a First Amendment protection. The First Amendment and the laws of many states protect a defendant’s use of someone’s name or likeness in creative works and other forms of entertainment.

As a general matter, one will not be held liable for using someone’s name or likeness in a creative, entertaining, or artistic work that is transformative. In other words, the First Amendment ordinarily protects defendants if they use someone’s name or likeness to create something new that is recognizably their own, rather than something that just evokes and exploits the person’s identity.

So what exactly is “transformative”?

On September 25, 2006, the California Court of Appeals ruled in Kirby v. Sega of America, Inc., that the First Amendment provides a complete defense for misappropriation of a celebrity’s likeness and image where the defendant’s use is transformative. The court further held that in order for something to be sufficiently transformative it only requires some new expression. Commentary, parody or satire is not also required.

Appellant Keirin Kirby is a singer, choreographer and designer best known for her role in the early 90’s band Deee-Lite. Its single, Groove is in the Heart¸ and its video were in heavy rotation in 1990 on radio and MTV. Going by the moniker “Lady Kier,” Kirby claims that she has created a distinctive persona and public identity resulting from “her signature costumes and lyrical expression.” Lady Kier’s likeness is a blend of 60’s retro funk and space-age futurism. Lady Kier had pink hair, wore brightly colored mini-skirts or unitards and stiletto-heeled, knee-high platform boots and used the catch phrase “ooh la la.” Sega distributed a Japanese video game called “Space Channel 5” or SC5 where the principal character in the game was a female reporter called “Ulala.” Ulala’s character appeared to look and dress very similarly to Lady Kier. Ulala also used the catch phrase “ooh la la.” The original Japanese version of SC5 was released in 1999. The next June, an American version followed. Over the next three years, several other versions of the game were released for use on various gaming platforms.

The court found that video games, although commercial speech, are creative, expressive works entitled to protection unless they are false or misleading. In cases such as this, the free exchange of ideas can conflict with a celebrity’s right to protect their identity.

Like Sega did in Kirby, here, EA Sports will likely make the same argument.

What Will Be The Outcome of These Cases?

The pending decisions have the potential to reshape the landscape of college sports and the definition of the word amateur, which going back to its French roots means “lover of.” Collegiate athletes would no longer be playing for the “love of the game” and would therefore no longer be amateur athletes.

Universities have found ways in order to entice star athletes to choose their program in the form of scholarships. The NCAA considers scholarships to be payment for the athlete to attend the school rather than to play sports. Although college athletes are considered amateur (to date), they still receive a large number of perks that if not supplied by the University would cost hundreds, maybe thousands, of dollars per month. Student-athletes receive equipment, clothes, tutors, academic advisors, trainers, stipends to pay for regular living needs, etc. on top of all school related costs (tuition, books, housing). While these athletes are not getting paid directly, they are still benefiting handsomely from their ability to play a sport.

When I first heard about this law suit, I felt that the college athletes did deserved some compensation, but after contemplating the potential outcome, I like things just the way they are. If court decided in favor of the athletes, this may set a precedent that whenever an image or the likeness of any collegiate athlete is used for an exploitative purpose, that respective player must be compensated. Where do you start? Where do you stop? Would it be necessary to pay players that are not publicly recognizable? Would there be a cap? Would the BCS conferences have a higher “salary” cap than the other conferences? Would more lawsuits result from having a cap? Would coaches and boosters be able to lure top recruits with cars, salaries, and other monetary or non-monetary incentives?

Though Keller, et al. have strong arguments that their likeness is being used unlawfully, EA Sports will likely have a strong argument that their use of the player’s likeness falls under the First Amendment’s protection. I suspect that if Keller does not settle, the court will find in favor of EA Sports, the NCAA, and the CLC and then I can get back to complaining about the BCS system.