It’s in the Game (Again): EA Sports Revival Fuels Ongoing Athlete Publicity Rights Movement
Photo Source: Ian T. McFarland, Gaming, Flickr (Nov. 13, 2009) (CC BY-SA 2.0).
By: Michael P. Schmidt* Posted: 05/13/2021
EA Sports is returning with a new college football video game – but not without facing an inevitable legal hurdle involving players’ name, image, and likeness (“NIL”) rights. Back in 2013, the EA Sports franchise discontinued its college football and basketball video game series as a lawsuit emerged between the franchise, athletes, and the NCAA regarding the athletes’ compensation rights for unauthorized use of their likenesses and physical descriptions in the games. From there, settlements resulted between EA Sports and the eligible athletes, though EA Sports lost support from the NCAA and other major conferences in the process. However, as for the athletes’ ensuing antitrust class action against NCAA, the Ninth Circuit Court of Appeals in O’Bannon v. NCAA refused NIL cash payments towards the athletes that were “untethered to their education expenses,” and reasoned that “not paying student-athletes is precisely what makes them amateurs” as required for NCAA participation.
With the upcoming revival release this time around, EA Sports can sidestep the issue to some extent, thanks to a partnership with the Collegiate Licensing Company that allows EA Sports to use college logos, stadiums, and uniforms in lieu of depicting actual named athletes. Still, this may not be smooth sailing for the game as individual schools are announcing their intention whether to participate, and many schools have not yet decided. Perhaps the most newsworthy response was Notre Dame’s decision this past February to opt out “until such time as rules have been finalized governing the participation of our student-athletes” in upholding their NIL rights. Hence, the issue remains whether student athletes can take free rein over their athletic personhood, under the confines of current NCAA policy restricting compensation or through the granting of rights by legislature.
NCAA & NIL Tensions
For the athletes who challenged the NCAA in court over NIL rights, they were required to release such rights as a condition for eligibility to play in their respective division – in essence, a forfeiture of compensable monetary value associated with their individual identities in exchange for NCAA participation. The O’Bannon decision recognized this prohibition on compensation as an antitrust injury-in-fact because EA Games likely would have paid the athletes if there were no such rules. Further and against NCAA’s contention that NIL rights hold no value, the court found these rights were at least one component of an overall “bundle that schools provide to recruits,” of which NCAA’s price fixing has a “significant anticompetitive effect on the college education market” subject to antitrust scrutiny. Ultimately, NCAA’s compensation rules were found “patently and inexplicably stricter than is necessary to accomplish all of its precompetitive objectives” – i.e., promoting amateurism and competitive balance among NCAA schools – but the court still did not authorize compensation beyond the cost of college attendance.
More recently and in response to public pressure to afford athletes their publicity rights, NCAA gave itself a deadline this January to update its compensation rules, premised on a set of principles geared towards student opportunity, transparency, diversity, equity, and fairness. So far, NCAA is not meeting this commitment, as it has postponed its decision due to need for more information. As delays and proposal rejections continue within NCAA, the organization may find itself subject to intervention in the form of federal legislation, while some states are already ahead of the process.
Supreme Court for the Save?
Although the United States Supreme Court denied reviewing the O’Bannon case, it will nonetheless decide another case this term involving college athlete compensation in a different context – whether NCAA’s student compensation eligibility rules violate federal antitrust law. However, the issue in the forthcoming NCAA v. Alston case is more about limitations on compensation amount itself and eligible benefits, rather than NIL rights, which the lower Ninth Circuit decision identified as an issue distinct from the broader Alston issue of capping the already eligible compensation athletes receive for their services. Still, the decision is expected to address NCAA’s view of its own definition on amateurism and its interplay with federal antitrust law, which could implicitly affect future disputes over NIL compensation. At oral arguments last month, Petitioner NCAA defended its amateurism rules against antitrust scrutiny whereas Respondent athletes argued the price-fixing amateurism rules are a restraint of trade that deprives athletes the opportunity to obtain other education-related benefits.
Luck through the Legislature
Amid the delay in NCAA updating its policy and in Congress enacting federal law, states have taken their own initiative in passing legislation protecting student athletes’ NIL rights, with six states already having passed bills and many others close to joining. California was the first to make the leap with its “Fair Pay to Play Act,” currently scheduled to take effect beginning 2022 or on the day NCAA’s updated rule is enacted, if earlier. As the race among the states stands, Florida will have the first active law on July 1 this year, allowing athletes NIL benefits that extend towards a broader state benefit in recruiting power.
These laws, rather than limiting the schools’ profiting off individual athletes, give those players the power to contract their NIL rights with sponsors and brands. Considering the potential disarray if each state were to draft its NIL laws differently in form and level of protection afforded, federal legislation protecting individuals’ publicity rights appears to be the necessary solution (if not popular) for all parties involved – for NCAA in meeting the demand, for states in bridging the potential disparity in recruiting power, for the contractors like EA Sports seeking legal agreements, and of course for the individual athletes who enjoy the recognition of their rights. Until the country gets there, it’s a game to see which schools join the EA Sports remake and which states follow through on their protections.
*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2021, Villanova University Charles Widger School of Law.
 See Mike Hume & Rick Maese, EA Sports revives college football franchise as courts mull NCAA’s stance on amateurism, Wash. Post (Feb. 2, 2021, 12:00 PM), https://www.washingtonpost.com/video-games/2021/02/02/ea-sports-college-football/ (“[W]e’re at a point in time where the schools and conferences are comfortable partnering and building a college football game again . . .” (quoting EA Sports executive president and general manager)).
 See Jason Kirk, EA Sports, CLC settle lawsuit with college players: NCAA now alone in legal battle, SB Nation (Sept. 26, 2013, 5:18 PM), https://www.sbnation.com/college-football/2013/9/26/4774730/ea-sports-clc-obannon-ncaa-lawsuit (announcing video game series discontinuance); see also Nam Le, NCAA to fight Ed O’Bannon suit ‘all the way to the Supreme Court’, SB Nation (Sept. 26, 2013, 4:33 PM), https://www.sbnation.com/college-football/2013/9/26/4774464/ncaa-ed-obannon-lawsuit-supreme-court (stating lawsuit began four years prior in 2009).
 See Jon Solomon, EA Sports and CLC settle lawsuit by Ed O’Bannon plaintiffs; NCAA remains as lone defendant, AL.com (Sept. 26, 2013), https://www.al.com/sports/2013/09/ea_will_not_make_college_footb.html (describing “ripple effect” of conferences not renewing licensing agreements with video game, following NCAA’s decision not to renew); see also Steve Eder, E.A. Sports Settles Lawsuit With College Athletes, N.Y. Times (Sept. 26, 2013), https://www.nytimes.com/2013/09/27/sports/ncaafootball/ea-sports-wont-make-college-video-game-in-2014.html (predicting “broad implications” for future student athletes in enjoying profits of university sports).
 O’Bannon v. Nat’l Collegiate Athletic Ass’n, 802 F.3d 1049, 1076 (9th Cir. 2015) (emphasis in original) (disagreeing with lower court’s award though hesitating to apply flat rule permitting or forbidding NIL compensation).
 See Eric Van Allen, EA College Football reportedly won’t launch until 2023, GI Live (Mar. 11, 2021), https://www.gamesindustry.biz/articles/2021-03-11-ea-college-football-reportedly-wont-launch-until-2023 (reporting EA and CLC partnership and no use of real student NIL); see also James Batchelor, EA Sports returning to college football, GI Live (Feb. 2, 2021), https://www.gamesindustry.biz/articles/2021-02-02-ea-sports-returning-to-college-football (noting past class action challenging publishing rights over license as illegal monopoly).
 See Matt Fortuna, Notre Dame, Wisconsin out of EA Sports College Football, but Nebraska, Miami, others are in: Tracking updates, Athletic (Mar. 9, 2021), https://theathletic.com/2408818/2021/03/09/notre-dame-wisconsin-out-of-ea-sports-college-football-but-nebraska-miami-others-are-in-tracking-updates/ (tracking seven declines, forty acceptances, and forty-nine “nothing yet” responses from institutions that have responded as of early March 2021).
 Id. (quoting Notre Dame Athletics statement, indicating school’s “strong desire” that athletes benefit directly). Of the other schools that declined to appear in the game, Fresno State, Texas Christian, and Tulane have cited NIL rights concerns. See id. (quoting statements from schools)
 See Joe Schick, Name, Image, Likeness: It’s Do or Die for the NCAA, U. Cin. L. Rev. (Dec. 22, 2020), https://uclawreview.org/2020/12/22/name-image-likeness-its-do-or-die-for-the-ncaa/ (noting NCAA’s retention of control over school athletics and public’s concern over decades why athletes do not receive revenues).
 See In re Nat’l Collegiate Athletic Ass’n Athletic Grant-in-Aid Cap Antitrust Litigation, 375 F.Supp.3d 1058, 1093-94 (N.D. Cal. 2019) (describing O’Bannon plaintiffs’ claims that NCAA and licensing partners engaged in price-fixing conduct in disallowing compensation to athletes who released NIL rights).
 See O’Bannon v. Nat’l Collegiate Athletic Ass’n, 802 F.3d 1049, 1067, 1072 (9th Cir. 2015) (concluding “NCAA’s rules deny the plaintiffs all opportunity to receive this compensation is sufficient to endow them with standing to bring this lawsuit”).
 Id. at 1070-72 (reaching finding under first step of “Rule of Reason” framework that places burden on plaintiff to show anticompetitive effects within relevant market).
 Id. at 1072, 1075-76. (emphasis in original) (reviewing full-tuition grants and NIL compensation as considered remedies).
 See Board of Governors moves toward allowing student-athlete compensation for endorsements and promotions, NCAA (Apr. 29, 2020, 8:30 AM), https://www.ncaa.org/about/resources/media-center/news/board-governors-moves-toward-allowing-student-athlete-compensation-endorsements-and-promotions (providing list of NCAA board’s guiding principles in modernizing NIL rules).
 See Dan Murphy & Adam Rittenberg, NCAA delays vote to change college athlete compensation rules, ESPN (Jan. 11, 2021), https://www.espn.com/college-sports/story/_/id/30694073/sources-ncaa-delays-vote-change-college-athlete-compensation-rules (noting building pressure for updated rules as states pass laws forbidding schools to follow NCAA’s current NIL rights policy).
 See Ross Dellenger, As Congressional Power Shifts, NCAA Reform and Athletes’ Rights Are Firmly in the Crosshairs, Sports Illustrated (Jan. 20, 2021), https://www.si.com/college/2021/01/20/ncaa-athlete-rights-compensation-congress-nil (suggesting recent Democrat control of House, Senate, and White House may yield less friendly result to NCAA).
 See Nat’l Collegiate Athletic Ass’n v. O’Bannon, 137 S.Ct. 277 (2016) (denying certiorari to appeal of Ninth Circuit O’Bannon decision); see also National Collegiate Athletic Association v. Alston, SCOTUSblog, https://www.scotusblog.com/case-files/cases/national-collegiate-athletic-association-v-alston/ (last visited Apr. 14, 2021) (providing issue on appeal and timeline of proceedings).
 See In re Nat’l Collegiate Athletic Ass’n Athletic Grant-in-Aid Cap Antitrust Litigation, 958 F.3d 1239, 1244, 1254 (9th Cir. 2020) (describing existing NCAA compensation rules and calling O’Bannon “a narrow challenge to restrictions on NIL compensation”); see also Dennis Dodd, Breaking down the NCAA’s forthcoming Supreme Court battle with its Big Brother status and amateurism at stake, CBS (Feb. 3, 2021, 1:45 PM), https://www.cbssports.com/college-football/news/breaking-down-the-ncaas-forthcoming-supreme-court-battle-with-its-big-brother-status-and-amateurism-at-stake/ (implying Supreme Court’s likely rule favoring NCAA in perhaps upholding NCAA’s amateurism standards).
 See Andrea P. Brockway, et al., NIL Update: The NCAA Delays NIL Rule While Congress and States Continue with Divergent Goals and the U.S. Supreme Court Buzzes In, JD Supra (Feb. 9, 2021), https://www.jdsupra.com/legalnews/nil-update-the-ncaa-delays-nil-rule- (providing lower courts’ finding of no antitrust violation where NCAA limits compensation unrelated to education, i.e. NIL compensation).
 See Nat’l Collegiate Athletic Ass’n v. Alston, Oyez, https://www.oyez.org/cases/2020/20-512 (last visited Apr. 14, 2021) (transcribing oral arguments); see also Jules Schulman, Who are the Real Winners in the Demise of the NCAA’s Amateurism Rule? | Opinion, Newsweek (Apr. 14, 2021), https://www.newsweek.com/who-are-real-winners-demise-ncaas-amateurism-rule-opinion-1583312 (suggesting viability of NCAA amateurism in “significant” doubt following oral arguments).
 See Ross Dellenger, With Recruiting in Mind, States Jockey to One-Up Each Other in Chaotic Race for NIL Laws, Sports Illustrated (Mar. 4, 2021), https://www.si.com/college/2021/03/04/name-image-likeness-state-laws-congress-ncaa (citing California, Florida, Colorado, Nebraska, New Jersey, and Michigan as states with passed legislation, and recognizing legislators’ attitudes that legislation is “necessity” for states to gain athletic and academic edge).
 See J. Brady McCollough, California’s new bumped-up NIL bill expected to counter NCAA’s proposal, L.A. Times (Dec. 7, 2020, 11:30 PM), https://www.latimes.com/sports/story/2020-12-07/californias-new-bumped-up-nil-bill-expected-to-counter-ncaas-limits-on-athletes (expecting date of NCAA’s rule on August 1 this year).
 See Amanda Christovich, An NIL Storm is Brewing in Florida, Front Office Sports (Feb. 10, 2021), https://frontofficesports.com/florida-nil-law/ (warning NCAA might sue Florida or make Florida schools NCAA-ineligible as response).
 See Jeffrey A. Wakolbinger, Game On: Are New Opportunities Opening Up for Brands to Use Student Athletes’ Name, Image and Likeness Rights?, Nat’l Law Rev. (Feb. 11, 2021), https://www.natlawreview.com/article/game-are-new-opportunities-opening-brands-to-use-student-athletes-name-image-and (noting such laws run contrary to NCAA policy).
 See Braedon B. Morrow, One – “NIL”: A Score for Student-Athletes in their Fight for Name, Image, and Likeness Rights, La. Law Rev. (Nov. 25, 2020), https://lawreview.law.lsu.edu/2020/11/25/one-nil-a-score-for-student-athletes-in-their-fight-for-name-image-and-likeness-rights/ (supporting national NIL law that would shift power from NCAA to individual athletes and bring uniformity among states); see also Celene Funke, To Get NIL Right, Congress Must Protect Nonrevenue Sports, Sports Illustrated (Mar. 11, 2021), https://www.si.com/college/2021/03/11/ncaa-name-image-likeness-athletes-acc (supporting federal standard to preempt state law and to protect student athletes in nonrevenue sports who compose eighty percent of student athlete population).
 See Tracker: Name, Image and Likeness Legislation by State, Business of College Sports (Mar. 1, 2021), https://businessofcollegesports.com/tracker-name-image-and-likeness-legislation-by-state/ (listing status of federal and state NIL bills).