It seems like every time there’s a development in the O’Bannon litigation, it just makes me wonder what the NCAA is thinking… other than to postpone the inevitable, I suppose. Now word comes of a finalized settlement with the video game maker.
College football and basketball players have finalized a $40 million settlement with a video game manufacturer and the NCAA’s licensing arm for improperly using the likenesses of athletes, leaving the NCAA alone to defend itself in the upcoming Ed O’Bannon antitrust trial.
Lawyers for the plaintiffs filed the settlement agreement with a federal court in Oakland, California, on Friday night in an action that could deliver up to $4,000 to as many as 100,000 current and former athletes who appeared in EA Sports basketball and football video games since 2003.
That would be money paid to players for their likenesses, no? What say you about that, NCAA?
Current players who would be due compensation include any who have appeared in EA Sports games, a legal outcome that creates another challenge to the NCAA’s prohibition on players receiving money for the use of their images as athletes.
Asked about the chances that the NCAA might object, Berman said, “The NCAA could do that. But they’ve released statements saying they wouldn’t. To me, the definition of a professional is someone who earns a living at what they do. A payment of $2,000 to $4,000 is not earning a living.”
About that, Stacey Osburn had no comment.
The rest of the results from the settlement read like a horror show for the NCAA:
However, Wilken will allow discussion about the video games, the evidence from which is valuable to the plaintiffs’ position that the NCAA and member schools knew they were in the wrong.
In the EA-CLC settlement paperwork, lawyers reminded Wilken of some of the more indicting e-mails. They cited a July 2009 e-mail from former Big 12 commissioner Dan Beebe saying that the conference board was “uneasy with the exploitation of player’s names and likenesses for commercial purposes.” Bill Powers of the University of Texas wrote: “It looks like the NCAA makes money from the licenses. Why should we be defendants in this, rather than plaintiffs representing our students?” Harvey Perlman, chancellor of the University of Nebraska-Lincoln wrote: “(This) whole area of name and likeness and the NCAA is a disaster leading to a catastrophe as far as I can tell.”
In June 2013, former University of Michigan president James Duderstadt wrote that “(in) a sense, the NCAA’s objective is to preserve the brand so that it provides revenue primarily for a small number of people who get very, very rich on the exploitation of young students who really lose opportunities for their futures. … And that’s what’s corrupt about it. The regulations are designed to protect the brand, to protect the playing level and keep it exciting, not to protect the student athletes.”
Still, along the way, NCAA officials worked to allow EA to use player avatars in the video games, in which player names were left off but easily downloaded from the Internet by individual users, plaintiffs’ lawyers claim. Those officials include former NCAA president Myles Brand.
“EA’s internal spreadsheets show that each avatar was matched to dozens of the real student-athlete’s identifying characteristics,” according to the settlement. “For example, for the NCAA football videogame, EA matched: (1) the name of the real student-athlete; (2) his real-life jersey number; (3) his position played; (4) his hometown; (5) his year of eligibility; (6) his athletic abilities (on at least 22 dimensions, including speed, strength, agility, etc.); (7) his physical characteristics (on at least 26 dimensions, including, weight, height, skin color, face geometry, hair style, muscle shape, etc.); and (8) how he dressed for games in real life (on at least 28 dimensions, including shoes, how they taped, braces worn, undershirts, facemask and helmet styles, etc.).”
The good news hardly ends there.
Wilken did allow that plaintiffs can enter evidence related to the amount of injuries players incur in the course of playing for their universities. They’ll also be able to highlight the salaries of top NCAA administrators, which have grown as new revenues have flowed into the top tier of college sports.
So even if Mark Emmert isn’t there, his compensation package will be.
Keep in mind this is a bench trial, so when Judge Wilken makes a call on what evidence can be presented, what she’s really saying is that this is information that is material to her final ruling. That ain’t good, no matter how vociferously Donald Remy argues to the contrary. They’ve probably already got someone working on the appellate brief as I type this. Well played, NCAA.