Skip to main content

Former NCAA QB wins appeal, sets up First Amendment showdown with EA

ryan-hartFormer Rutgers quarterback Ryan Hart won his appeal in an ongoing lawsuit against EA Sports regarding the unauthorized use of his likeness in the NCAA Football series of games earlier this week, according to Kotaku. Hart’s victory comes after a Federal District Court judge dismissed his suit in 2011, ruling that EA has a First Amendment right to depict college football players.

Hart appealed the ruling to the 3rd Circuit Court of Appeals, and the three-judge panel sided with the former quarterback in a 2-1 decision, ruling that “[t]he various digitized sights and sounds in the video game do not alter or transform the appelant’s identity in a significant way,” according to Judge Joseph Greenaway.

The legalities of depicting NCAA players in a for-profit manner are murky at best, and this case may help to create a new precedent. Former Nebraska and Arizona State quarterback Samuel Keller is at the Federal Appeal level in a different district with an identical complaint. Keller’s case was already combined with that of former UCLA player Ed O’Bannon, who seeks to make it a class action suit.

According to NCAA rules, a player cannot profit off of their athletic performance. Even the action of selling personal memorabilia is prohibited, as former Ohio State quarterback Terrelle Pryor and four of his teammates found out in 2010, leading to a five game suspension. 

While the players themselves are prohibited from receiving any compensation, the schools and other companies with license rights to NCAA football are not. Companies can sell the jerseys of any player they wish as long as that player’s name is not on the jersey, because that player would then be legally entitled to receive some of the revenue from that sale, a violation of NCAA rules. The same is true of EA Sports’ NCAA Football game series. NFL Players negotiate for fees through the Players Association, but the NCAA players cannot.  

Hart, who played for Rutgers from 2002-2005, claims that EA Sports used his likeness down to his actual football skills, his physical appearance, his stats, and even his background information. Hart’s lawyers claimed that EA essentially stole the likeness of Hart and other college football players for profit.

EA insists that the use of the players is done in such a way to create an “expressive transformation,” which would give them protection under the First Amendment. The arguments are not far removed from those EA is currently using in defense of its decision to no longer pay license fees to gun manufacturers in order to feature real weapons in games, as that too is protected under the First Amendment. 

The case will now be sent back to the District Court level for another hearing. If successful, these cases could have a significant impact both on the way the NCAA treats its players and on the future of college football video games.

Editors' Recommendations

Michael Rougeau
Former Digital Trends Contributor
Mike Rougeau is a journalist and writer who lives in Los Angeles with his girlfriend and two dogs. He specializes in video…
The NCAA says goodbye to EA Sports, but the show will go on [UPDATED]

After a long and fruitful relationship that spawned 17 annual games, the NCAA announced that it will not renew its licensing deal with Electronic Arts. The contract expires in June 2014, but according to the nature of the contract, the NCAA was required to give notice now so EA Sports could plan for the future accordingly. For fans of the series, that makes NCAA Football 14 the last game in the franchise – or at least the last game to use that particular name.
“We are confident in our legal position regarding the use of our trademarks in video games," the statement read. "But given the current business climate and costs of litigation, we determined participating in this game is not in the best interests of the NCAA."
The decision comes in the wake of the lawsuit that began with former UCLA basketball player Ed O’Bannon, who is suing the NCAA, Electronic Arts, and the Collegiate Licensing Company over the use of his likeness without permission. O’Bannon has been joined by several others, and is awaiting a judgment that will grant it class action status.
O’Bannon’s case was recently strengthened by the legal victory of former Rutgers quarterback Ryan Hart, who won an appeal against EA that overturns an earlier dismissal, clearing the way for a trial. This stands in contrast to EA's previous defense that video games, and the use of player likenesses, are protected under the First Amendment. Former Nebraska and Arizona State quarterback Samuel Keller is also involved in an identical appeal, and his case has been combined with O’Bannon’s.
O’Bannon’s lawyers have claimed for months now that they have several current NCAA players ready to join the lawsuit, but are afraid to unless they receive assurances that they could do so without reprisals from the NCAA. The NCAA has said that it would not target student-athletes that came forward, but it also wouldn’t give them any written guarantees. 
The NCAA’s decision to not renew the contract presents an interesting legal situation. O’Bannon’s lawsuit was not specifically regarding video games, while Keller’s was. That makes an already complicated lawsuit even more of a quagmire. It does, however, protect the NCAA from any current or future players looking to bring suit against EA.
“The NCAA has never licensed the use of current student-athlete names, images or likenesses to EA,” the statement read. “The NCAA has no involvement in licenses between EA and former student-athletes.”
To further complicate things for EA, the NCAA lawsuits are joined by others revolving around the Madden franchise, including a class action suit from former NFL players, also over the use of their likenesses.
As for the EA Sports college football franchise, the games will continue, and in some ways they are even returning to their roots. The series debuted in 1993 as Bill Walsh College Football, and then after one Bill Walsh sequel spent two years as College Football USA before adopting the NCAA brand for NCAA Football 98. The series will continue regardless, and likely still contain many – if not all – of the current teams.
“Member colleges and universities license their own trademarks and other intellectual property for the video game," the NCAA stated. “They will have to independently decide whether to continue those business arrangements in the future.”
Judging from the response from EA Sports, doesn't see that as a huge problem.
“This is simple: EA SPORTS will continue to develop and publish college football games, but we will no longer include the NCAA names and marks,” Andrew Wilson, Executive Vice President for EA Sports responded in a statement. “Our relationship with the Collegiate Licensing Company is strong and we are already working on a new game for next generation consoles which will launch next year and feature the college teams, conferences and all the innovation fans expect from EA SPORTS.”
[UPDATE] Following the news of the split, EA quickly confirmed that it has signed a new, 3-year contract extension with the Collegiate Licensing Company, the body that controls the licensing and marketing rights to 200 colleges, conferences, and Bowl games. It is now up to the individual groups to decide whether or not they will allow EA Sports to feature them in the games. So far more than 150 schools have agreed to the contract extension, but a few (who have not been named) have opted out. 

Read more
EA offers discounts and early access with Season Ticket

EA Sports is a beast. It is a massive money maker for the publisher, and it continues to hold the attention of millions of rabid fans thanks to a fairly consistent string of quality sports titles. And in this new age where downloadable content for games is not just common but profitable, EA has come up with a new way to offer some online content, give their fans a bit extra and make some scratch off of it in the process, naturally.
Earlier today, EA launched the "EA Sports Season Ticket," an annual service that offers a handful of benefits. For $24.99 via the PlayStation Network or 2000 MS Points through Xbox Live, subscribers will receive benefits on five EA Sports titles: Madden NFL Football, FIFA Soccer, Tiger Woods PGA Tour Golf, NHL Hockey and NCAA Football.
According to the press release, the benefits include:
• Early Full-Game Digital Access: Three days before a game's scheduled release, fans will be able to download and play the full version of all five participating titles on Xbox 360 and PS3™**. The digitally downloaded game will time out when the game is available at retail and consumers have the option to purchase the same full game on disc at retail. EA SPORTS Season Ticket subscribers can transfer all achievements earned during the three-day download period to the purchased disc, resulting in an early edge over the competition.
• Discounted Downloadable Content: Subscribers will get a 20-percent discount on all available downloadable content for participating EA SPORTS titles. Downloadable content, which enhances and refreshes the core game experience, includes such items as Ultimate Team packs, accelerator packs and gear upgrades.
• Free Premium Web Content: Premium web content extends the game experience beyond the console to a web browser. All participating titles will feature premium web content that will be free to EA SPORTS Season Ticket members beginning with the premium Creation Center packs for FIFA Soccer 12. These packs provide a deeper set of customization tools and abilities within Creation Center to build your own teams and tournaments, and will be available to the consumer until the membership to the program has expired.
• Membership Recognition: Subscribers are easily identifiable with an exclusive membership recognition badge displayed both in-game and on their profile.
So basically for $25 you receive a full demo a few days early, a slight discount, a bit of extra content and a shiny online badge. At first glance, that might not seem like much for your bucks. Actually, at second and third glance that might not seem like much of a deal either, but the pass is geared towards the hardcore EA Sports fans. It is a love letter to them—albeit a slightly expensive one. But with the prices of digital content rising all the time, and more and more optional features in games being available for a price (NCAA Football 12, offers the ability to max out the stats of a created player for a fee, for example), the benefits begin to come become more apparent.
Still, it is a risky move by EA. Fans are generally not in favor of having to pay extra for content that should justifiably have been included in the original title to begin with. The first game to fully utilize this service will be Madden NFL 12, which debuts on August 30.  Once that game is released, we’ll get a better look at what the EA Sports Season Ticket is all about.  

Read more
NCAA Football 12 Review

To some, it is a silly game that eats up a Saturday. To others, it is one messiah shy of being a religion. Wherever your interest in college football lands, the game is undeniably an important part of American society that draws a slew of fans. Because of that, half of EA Tiburon’s work is already complete before each new iteration of NCAA Football is released. It also doesn’t hurt that there is no competition.
EA's NCAA Football games have never received the attention that their big brother Madden has received, but they have always been solid games. Because they mine a nostalgia-tinted and fanatical fanbase, they tend to receive a pass on a few shortcomings, especially when it comes to innovation. Last year’s aptly named NCAA Football 11 was a somewhat major step forward for the franchise, relatively speaking. It added a few new features, but more than that, it fixed several problems. It was easily the best game of the series (as the newest game in an annual franchise should always be). So does NCAA Football 12 advance the series enough to justify its own existence? (Please note that I deliberately avoided saying things like “does it fumble,” or “does it advance the chains.” You’re welcome.) Yes and no.
NCAA Football 12 is the best game in the franchise, as it should be. But the real question then is, is it a big enough improvement over the previous game to warrant shelling out $60 for it? If you are a fan of the series, absolutely. Of course, if you are a fan of the series you were probably planning to buy it regardless. But while NCAA Football 12 won’t blow you away with innovations and new features, it retains the gameplay that fans love, fixes at least one major problem with the past game and added to another, and again shows why NCAA Football is among the best sports games on the market. (more…)

Read more