03/04/24 | More Than 10,000 Athletes Sign on to EA College Football Game in Wake of Name, Image and Likeness Litigation
A decade after Hagens Berman’s groundbreaking win in Keller et al v. Electronic Arts and National Collegiate Athletic Association, and three years following a 9-0 unanimous Supreme Court victory in In re: National Collegiate Athletic Association Athletic Grant-In-Aid Cap Antitrust (Alston), Electronic Arts is reviving its popular EA Sports College Football series and compensating athletes for the use of their name, image and likeness (NIL). Prior to the Keller decision, college athletes could not share in the profits from use of their NIL in video games due to NCAA regulations. In 2009, Hagens Berman filed a lawsuit on behalf of former NCAA quarterback Sam Keller and a class of college football and basketball players whose likenesses had been used in games without their consent.
“The Keller case was truly game changing, and we’re seeing the impacts of those changes today. For the first time, hardworking college athletes will now see some of the profits from the use of their likeness in video games, and fans will be able to play a video game where their favorite athletes are faithfully represented. This is a win-win,” said Steve Berman, managing partner at Hagens Berman and the attorney who led the firm’s cases against the NCAA.
The Keller case established college athletes’ right to recover the value of their NIL if it was used without their consent, and Alston went on to show that not permitting those rights to be managed by the student-athletes themselves was improper. Together, these cases were the true catalyst for the first payments the NCAA ever made to student-athletes for rights related to their play on the field.
In a separate lawsuit, O’Bannon v. NCAA, former UCLA basketball player Ed O’Bannon challenged the NCAA’s use of college athlete publicity rights in television broadcasts. The O’Bannon case was denied class certification, and a federal judge’s favorable ruling on the case’s claims was partially reversed by an appeals court in 2015. It was denied review by the Supreme Court in 2016. Contrary to inaccurate media reporting, this case did not have significant bearing on the use of college athlete NILs in video games.
Hagens Berman Sobol Shapiro filed a class-action lawsuit against the NCAA and Electronic Arts, Inc. claiming the companies illegally use college football and basketball players' names and likenesses in video games without permission or consent from the player.
The suit claims using a player's name, picture or likeness violates contracts and licensing agreements in NCAA bylaws. Despite these prohibitions, the NCAA allegedly condones the use of players's name and likeness in EA games to increase popularity and ultimately increase revenues and profits, the suit claims.
Players claim the NCAA and EA conspired to permit the use of NCAA players for their own monetary gain and without compensation to players. In contrast, Electronic Arts paid the NFL Players Union nearly $35 million each year for the use of players' names and likenesses in NFL games.
The name and likeness litigation suit was filed by Sam Keller, a former starting quarterback for ASU and Univ. of Nebraska football teams, represents all NCAA football and basketball players listed on the official opening-day roster of a school whose team was included in any game produced by Electronic Arts, and whose assigned jersey number appears on a virtual player in the software.
CASE TIMELINE
The Keller and O'Bannon parties filed final paperwork in federal court adjusting their respective settlements to create one claims process. In merging the settlements, the cap on the amount student-athletes can receive in the settlement was removed. Without a cap, student-athletes who participate will receive a proportional share of the $60 million fund based on variables, including the number of video games in which they appeared. more »
The NCAA announces current college players will not be punished for collecting part of the settlement.
Attorneys reach preliminary approved settlement with Electronic Arts. more »
A settlement has been reached between the Hagens Berman and other attorneys representing the plaintiffs and Electronic Arts. The terms of the settlement are confidential, pending disclosure to the court.
Today, Judge Claudia Wilken appointed Hagens Berman Sobol Shapiro as co-lead class counsel for the lawsuit against Electronic Arts and NCAA which claims the companies used college players' likeness in NCAA-branded video games. Judge Claudia Wilken ordered Hagens Berman and its co-lead counsel Hausfeld to direct the litigation among co-counsel. The Court also consolidated plaintiffs represented in the lawsuit against the two companies.
Recent developments surfaced this week in a class-action lawsuit against NCAA and Electronic Arts (EA). U.S. District Judge Claudia Wilken denied the motion made by Electronic Arts and NCAA to dismiss the case. The class-action lawsuit will move forward and the two companies will need to prove they did not use college players' likeness in its NCAA-branded gaming franchise.
EA unsuccessfully argued protection under the first amendment and the freedom of creative expression over the highly successful NCAA-branded video games. However, Judge Wilken rejected the gaming company's argument, siding that allegations made by plaintiff Samuel Keller, former quarterback for Arizona State University, have merit.
