Documents say NCAA knew video games matched reality

Unsealed documents from the O'Bannon v NCAA, EA Sports lawsuit reveal an NCAA Vice President's admission that EA Sports illegally uses players' images and such use generated millions for NCAA sports.

Steve Berkowitz
November 13, 2012

Lawyers representing former and current college football and men's basketball players in an anti-trust lawsuit said in documents unsealed Monday that the NCAA knew video game manufacturer Electronic Arts made its products with the purpose of having the game characters "match as closely as possible the real-life characteristics" of actual student-athletes.

The lawyers also said the NCAA was aware that other companies had developed ways for the names of actual student-athletes to be added to the games and "knowingly tolerated" it.

The documents originally had been filed under seal and in redacted form in U.S. District Court in California as part of a bid by the athletes' lawyers to have the lawsuit certified as a class action. They were revealed Monday, following the conclusion of nearly two months of legal wrangling and numerous rulings about which documents and parts of documents would be made public and which, at least for the time being, would not.

The suit seeks damages from the NCAA, EA and Collegiate Licensing Co., the nation's leading collegiate trademark licensing and marketing firm. The 15 named plaintiffs, including former basketball stars Ed O'Bannon, Oscar Robertson and Bill Russell, say their names, images and likenesses were used illegally by the NCAA.

They allege that the defendants violated anti-trust law by conspiring to fix at zero the amount of compensation athletes can receive for the use of their names, images and likenesses in products or media while they are in school and by requiring athletes to sign forms under which they relinquish in perpetuity all rights pertaining to the use of the names, images and likenesses in ways including TV contracts, rebroadcasts of games, and video game, jersey and other apparel sales.

Another document made public Monday by the plaintiffs lawyers showed the results of an NCAA commercialism and licensing survey in which 12 of 150 responding Division I schools said they "engage in the sale of licensed products bearing a current student-athlete's individual likeness." The date of survey is not included, but based on the reported response number and rate (45.9%), it is likely the survey occurred around 2004 to 2006, when Division I had around 327 member schools.

The NCAA and the other defendants have contended the case should not be certified as a class action, in part, because the plaintiffs have recently adopted legal approaches to their case that are fundamentally different from those cited in the plaintiffs' underlying complaint.

NCAA spokesman Bob Williams said in an e-mail Monday night: "Although we haven't reviewed all of the documents, it appears the plaintiffs again are trying to make their case on likeness. Discovery and the plaintiffs' own depositions clearly indicate that the NCAA never marketed student-athlete likeness nor prohibited student-athletes from profiting from their likeness when their eligibility was completed."

In an internal e-mail from July 2003 that was entered by the plaintiffs, Peter R. Davis, then the NCAA's associate director of brand management and licensing, wrote that the new EA Football game's cover had been made available for the NCAA's approval and that it talked about downloading team rosters.

Davis wrote that he asked EA about that "to be sure that EA is not using current players' names. Here is the response I received.

" ... We don't actually use player names but we do use all the attributes and jersey numbers of the players."

The EA representative, who is not identified, goes on to explain that if a user is playing a season with Mississippi's team and Eli Manning gets injured, "When the gamer goes to update Ole Miss's roster for that week Eli's backup would be the starter. Rosters will be updated on a weekly basis so that in addition to players injured, players who are dominating in real life would then have their attributes in GameBreaker pumped up to reflect real life success."

Davis then writes: "Here's my concern – Eil [sic] is a current player on the Ole Miss team. Is using his actual number and attributes (height, race, etc.) too close to reality thereby using Eli's likeness (if not his name) and causing an eligibility issue?"

Another NCAA staffer, Melissa Caito, wrote in response: "Pls be cautious as you move through this – any more 'watering down' of the video games will likely move the manufacturers to cease operations with us."

In an August 2007 e-mail exchange among then-NCAA president Myles Brand, another top NCAA official Tom Jernstedt, and the NCAA's then- senior vice-president for basketball and business strategies Greg Shaheen, Brand observed that he "seriously doubts" college presidents would vote to allow the use of student-athlete names and likenesses in commercial products, including video games.

Shaheen replied that he agreed but wanted to make two points, one of which was "the names and likenesses are rigged into the games now by illegal means, meaning that many of the video game players have the features, it's just that our membership doesn't benefit from it. ... In the end, in college basketball ... we will lose the game because the sales numbers show we can't sustain the game if it doesn't meet the pace of realism that the other games do – EA will simply pull out of this category.

"It certainly isn't the end of the world, but it is a few million dollars (ultimately $4 to $8 million a year in the current model; more if the name/likeness matter could be solved) that we would lose. And, for college basketball to not have a video game will be a major limitation in our promotion of the game, especially to the young ages we are trying to reach."