Next Level Sports Marketing

Former Arizona State and Nebraska quarterback Sam Keller is suing the NCAA and its video-game partner, EA Sports, claiming they’ve gone too far in using the likenesses of college players who are prohibited from sharing in the games’ profits.
The class-action antitrust suit, filed this week in U.S. District Court in San Francisco, claims the games make illegal use of football and basketball players’ names — through the download of team rosters — and unidentified but scarcely hidden likenesses and that the NCAA condones the practice in violation of its own rules.

It seeks unspecified damages for every football and basketball player on an opening-game roster whose jersey number appeared in an EA game. “I think the merits are very strong,” said Steve Berman, one of Keller’s attorneys.

” I think it’s pretty clear they’re taking the players’ likenesses and using them in the game. It’s also pretty clear that the NCAA prohibits that. There’s not supposed to be misappropriation, or an appropriation, of players’ names or players’ likenesses for profit. And so we think we have a pretty strong case that they’ve misappropriated, in violation of state law, these players’ likenesses.

“A case like this usually takes a couple of years to resolve.”

The suit cites examples of actual college players’ heights, weights and other distinguishable characteristics — along with their positions, jersey numbers and even home towns — matching those of virtual players on the same teams in the games.

Unlike the pro football and basketball versions of the games, however, the college video game uses neither players’ names nor facial features. In a statement, the NCAA said, “We are confident that no such use has occurred and that we will ultimately be dismissed from this lawsuit.”

The challenge comes amid a debate within the NCAA over increased commercial activity in college sports, including where and how to draw the line on the role of athletes. A task force weighing the issue recently re-emphasized that they not be exploited as sales tools, though it recommended guidelines governing the use of names and likenesses be loosened as long as it “does not portray the student-athlete in a manner as promoting or endorsing the sale or use of a commercial product or service.”

EA Sports also issued a statement: “EA, the NCAA and CLC have reviewed the complaint, and do not believe that the claims have merit. EA, the NCAA and CLC regularly conduct reviews of EA’s NCAA-branded games, and we do not believe that any violations of student-athlete rights or NCAA bylaws have occurred.”

In licensing EA Sports to make and market video games, the association prohibits the identification of individual players. However, the lawsuit says, the only real restriction is not using their names on the virtual players’ jerseys.

“With rare exception,” it says, “virtually every real-life Division I football or basketball player in the NCAA has a corresponding player in Electronic Arts’ games with the same jersey number and virtually identical height, weight, build and home state. In addition, Electronic Arts matches the player’s skin tone, hair color and often even a player’s hair style.”

Further, it says, each game “matches players’ idiosyncratic equipment preferences such as wristbands, headbands, facemasks and visors.”

Keller was one such athlete while playing at Arizona State from 2003-05 and Nebraska as a fifth-year senior in 2007. He now lives in Arizona.

When he was at Arizona State, his computer-generated counterpart in EA Sports’ NCAA Football video game happened to have the same number. Same height and weight and hair color and home town, too.

Ditto the Nebraska quarterback depicted in a later edition of the video game after Keller transferred to the Cornhuskers in 2006 — with the exception of the jersey number. Keller was initially assigned No. 5 and switched to the same No. 9 he wore at ASU before taking the field for the Huskers — too late for the video-game maker to adjust.

Its virtual Nebraska QB wore No. 5, but Keller argues in a newly filed lawsuit that the avatar was otherwise in his own image.

“Compare the two images,” he says in the suit, “and it is obvious they are not randomly generated.”

Besides Keller, the suit points to virtual players it says could easily be identified as Ohio State linebacker James Laurinaitis, Texas Tech receiver Michael Crabtree and former Georgetown basketball center Roy Hibbert, among others.

“Last year, for the NCAA Football game, we think they sold 2.5 million copies. That’s at about $30 a copy, and that’s just for one year,” says Berman, a managing partner in the Seattle-based law firm Hagens Berman Sobol Shapiro. “We think they sold about 450,000 of the basketball game. And they’ve been doing this for quite awhile.”

Attorney and NCAA critic Pete Rush says he’s not surprised by the challenge. “It would seem to have sound basis in the law,” he says.

Rush, based in Chicago, represented Jeremy Bloom five years ago in his fight to regain his football eligibility at Colorado. An Olympic skier in addition to a star receiver, Bloom had violated NCAA rules by accepting skiing endorsements.

“It’ll be fascinating,” Rush says of Keller’s suit. “I’ve always been concerned about when and how the NCAA procured a right to exploit the images of student-athletes. There is nothing in the national letter-of-intent that speaks to it. And attempts to seek assignment of these rights. .. would not be enforceable.”