• Jonathan Brannan

COULD WE SEE THE RETURN OF NCAA VIDEO GAMES?

Updated: Jul 10, 2020

This week gamers received a first look at both the Playstation 5 as well as Madden 21.


This has rekindled the discussion on 'Why isn’t there a college football video game?'

EA Sports


The last time that there was a college football video game was almost 7 years ago, when Electronic Arts (EA) released NCAA Football 14, for the Xbox 360 and PlayStation 3, in July 2013.


The game is even enjoying a coronavirus pandemic renaissance, with homebound, sports-starved gamers paying more than $370 for unused copies on eBay.


EA would announce in September 2013 that NCAA Football 14, would be its last college football title.


The announcement came amid a class-action lawsuit brought by the former UCLA basketball player Ed O’Bannon (@Ed_OBannon) against EA and the NCAA that claimed that college football and basketball players’ names, images, and likenesses (NILs) were illegally used in games for years.


EA would choose to settle with O’Bannon and his fellow plaintiffs in 2014 for $60 million.


Separately, a federal court the same year found that NCAA amateurism rules preventing athletes from profiting from their NILs violated antitrust law. However, she did not require the association to substantively change those rules.


The closest gamers have got to college football in a video game since then, came in Madden 20. When a career mode was added, allowing players the chance to step into the shoes of a quarterback competing in the College Football Playoff for one of ten schools: Clemson, Florida, Florida State, LSU, Miami, Oklahoma, Oregon, Texas, Texas Tech, and USC.

Lawsuit


For an organization such as the NCAA to not push through a new version of the NCAA Football video game does appear a bit strange. Especially when each year the video game sold on average 2 million copies.


If the NCAA really wanted to create the restore the video game franchise it appears to be something achievable.


However, the NCAA working group’s NIL recommendations pretend otherwise for a simple reason: college sports amateurism is a legal house of cards, and allowing a new game could speed up its demise.


To better understand, revisiting the original court case is essential.


Ed O’Bannon was a former UCLA basketball player, who led the Bruins to their 1995 national championship and was named Final Four Most Outstanding Player. In 2008 he noticed that his 1995 UCLA team had been included in EA Sports’ NCAA Basketball 09.


One of its digital players looked just like O’Bannon, with the same height, same position, same jersey number, same left-handed jump shot, same shaved head.


"Initially I was excited. Who wouldn’t be excited if you saw your face on a video game? I grew up with video games, so I was pretty pumped,” O’Bannon said. “But after thinking about it, my feelings changed. … Something is wrong with this picture.”


Despite his original elation at being able to play as himself in the game, O'Bannon soon realized that was his virtual likeness was being featured in a product that was selling for real money. Of which he was not receiving any compensation.


A year later, O’Bannon filed his lawsuit, which over time expanded from covering the use of former college players’ NILs in video games to the use of former and current players’ NILs in games and television broadcasts.


In a nutshell, his lawyers argued that NCAA amateurism rules constituted an illegal price-fix, that the association and its member schools were colluding to prevent athletes from receiving what they otherwise would in a free and competitive market for their NILs.


Antitrust law is designed to prevent collusion and promote competition. Rival firms, like the different schools vying for the services of All-American athletes such as O’Bannon, generally are not allowed to agree on a set price for labor or supplies. Literal case in point? In the 1990s, the NCAA placed a $12,000 cap on salaries for certain assistant basketball coaches. The coaches sued. The association got bodied in federal court, paying out $66 million in back wages, damages, and legal fees.


However, antitrust law sometimes allows for “procompetitive” agreements—that is, agreements necessary for a product to exist or thrive in the first place. (For example, flash drive manufacturers are allowed to agree to a USB standard, while competing on the basis of memory size and price). In the O’Bannon case, the NCAA claimed that amateurism was procompetitive for a number of reasons, including maintaining competitive balance in college sports. 


During a 2014 bench trial, federal judge Claudia Wilken found most of those reasons lacking. (It probably didn’t help that one of the association’s expert witnesses, economist Daniel Rubinfeld, specifically referred to the NCAA as a price-fixing cartel in a college textbook he authored). She ultimately concluded that the association’s NIL compensation restrictions violated the law, ruling that without amateurism, college athletes would be able to sell group licenses for the use of their NILs in television broadcasts and video games.


Yet Wilken also went easy on the NCAA. Instead of issuing an injunction that would allow athletes to freely sell their NILs, she gave some credence to the association’s because-we-say-so contentions that amateurism is pro-competitive because it attracts fans and makes athletes better students. As a split-the-baby remedy, she proposed that schools be allowed to make payments to athletes of up to $5,000 a year that would be held in trust funds until their graduations. An appeals court subsequently nixed those payments, ruling that any athlete compensation unrelated to school expenses would annihilate the NCAA’s entire justification for amateurism. 


"The difference between offering student-athletes education-related compensation and offering them cash sums untethered to educational expenses is not minor; it is a quantum leap," Judge Jay Bybee wrote. "Once that line is crossed, we see no basis for returning to a rule of amateurism and no defined stopping point; we have little doubt that plaintiffs will continue to challenge the arbitrary limit imposed by the district court until they have captured the full value of their NIL. At that point the NCAA will have surrendered its amateurism principles entirely and transitioned from its “particular brand of football” to minor league status.


In other words, the court's message the NCAA was: If athletes receive a dollar more than tuition, room, board, and cost-of-living stipends, and said dollar has nothing to do with schooling, like, for instance, getting paid through group licensing to appear in a video game while wearing your team uniform, then we no longer will protect your racket. 


The NCAA took the court's decision as a win. As all schools had to do to stay on the right side of the federal judiciary was keep the no-pay-for-play. Therefore, they took the decision to cancel the NCAA video games as this would force them to compensate athletes.


Then came in California.

California


California Governor Gavin Newsom signed the bill that will allow many of the state’s college athletes to profit from the use of their NILs starting in 2023, he didn’t mince words.


“I don’t want to say this is checkmate,” Newsom said last year while appearing on the Uninterrupted. “But this is a major problem for the NCAA.”


That was an understatement. By preventing athletes from receiving or negotiating for whatever anyone might want to give them, amateurism grants the association and its member schools the power to unilaterally control the $14 billion of revenue annually generated by college sports. As a result, campuses teem with extremely well-paid coaches and athletic administrators, strength coaches clearing high six-figure salaries, and lavishly gold-plated facilities. 


Meanwhile, impoverished athletes get by with the help of taxpayer-funded federal Pell Grants.


State NIL laws threaten the NCAA’s stranglehold on money and leverage—and not just because a local car dealer now making donations to Clemson University’s athletic department might prefer to pay quarterback Trevor Lawrence directly to appear in a commercial. Think back to the O’Bannon ruling: according to federal judges, the difference between college athletes receiving “education-related compensation” (like cost-of-living stipends, postgraduate scholarships, or cash bonuses for good grades) and “cash sums untethered to educational expenses” (like payments for the use of their NILs) is a “quantum leap.” 


Once that leap is made, amateurism becomes a legal zombie. After all, it’s not hard to imagine an attorney subsequently filing an antitrust lawsuit, walking into court, and arguing that: 


a) Thanks to California and other states, college athletes are now making money from their NILs; 


b) That money has absolutely nothing to do with education, and lots to do with athletes being good at sports; 


c) Despite the quantum leapiness of A and B, athletes are still studying, fans are still watching, and the college sports bus has not, in fact, exploded; 


d) As the court previously noted, there is now “no reason” for judges to protect amateurism—so please issue a permanent injunction ordering the NCAA and its member schools to pound all the sand in the Sahara the next time they try to punish an athlete for earning every last dollar of what she’s worth.


Now picture a reborn and robust NCAA Football title, complete with group licensing and school trademarks, both of which would answer gamers’ prayers, while making our athlete attorney’s job that much easier: Your honor, thousands of football players are being paid to appear in this product. Fans are so turned off that they’re buying two million copies annually. Schools are so concerned about the adverse educational and business impact of this that they’re cashing in by having their brand marks appear as well. Oh, and the title of the dang game is “N-C-A-A Football.” How is amateurism necessary to preserve college sports, again?

Amateur


There’s another, less obvious way that group licensing imperils the sweetheart deal now enjoyed by the NCAA and its member conferences and schools. In the O’Bannon case, Judge Wilken found that without amateurism, there would be a market for athlete NILs in video games and television broadcasts. 


Within college sports, the latter is far and away the biggest pot of gold—the football playoff package alone is worth $500 million a year to the Power Five conferences, while the NCAA clears roughly $1 billion annually for the rights to March Madness.


Shortly after Newsom’s bill signing, the National College Players Association (NCPA), the nation’s largest college athletes’ rights group, announced that it had entered into a partnership with a marketing subsidiary of the NFL Players Association, REP Worldwide, to explore how to maximize NIL rights, with the ultimate intention of providing group licensing representation to “every college athlete whose state passes a law to allow it.” Among the areas that the NCPA and REP Worldwide planned to explore? Merchandise, gaming, and—cha-ching!—broadcast revenues.


The legal path from individual college athletes in various states being granted NIL rights to a multi-state or national group of college athletes using those rights to get a cut of the broadcast dollars generated by their labor isn’t entirely clear. Relevant law varies by state. In Tennessee, for example, the right of publicity—which protects people from the nonconsensual use of their likenesses for commercial purposes—does not extend to sports broadcasts. 


As such, athletes might not be able to sue their way to payments. At least not quickly and easily. On the other hand, lawsuits likely wouldn’t be necessary. In her O’Bannon decision, Judge Wilken wrote that “even if some television networks believed that student-athletes lacked publicity rights in the use of their names, images, and likenesses, they may have still sought to acquire these rights as a precautionary measure. Businesses often negotiate licenses to acquire uncertain rights.”


Question is, who would networks negotiate with? College athletes are generally 18-t0-22 years of age. Their competitive careers are short. They’re scattered across the country, and are preoccupied with sports, school, and social life. 


In other words, they’re not ideal candidates to conduct complex, coordinated NIL rights negotiations with game makers or sports broadcasters. As such, they would need something to unify their interests—and make deals on their behalf. 


A labor union would fit the bill, just as it does for professional football and basketball players. However, a previous and persuasive effort by Northwestern University football players to unionize was nipped in the bud when the National Labor Relations Board punted on their case. Moreover, some states have outlawed college athlete unionization.

The NCAA working group report on NILs posits this as a near-insurmountable obstacle to group licensing, stating that “the group licensing programs that currently exist in professional sports or the Olympics all benefit from legal structures not available to the NCAA or its member institutions, namely the presence of a player's association to serve as a bargaining unit for the athletes.” But that’s not the case. All college athletes would really need is a trade association of some sort, or an organization set up and empowered to handle NIL deals.

“The notion that, ‘gee, well, we need a union for the group licensing that powers all the stuff that fans really care about, like trading cards and video games?’” says Ahmad Nassar, CEO of OneTeam Partners, a company launched by the NFLPA and Major League Baseball Players Association that handles group licensing. “No, you don’t. That’s dead wrong.”


And if that organization successfully negotiated a NIL deal with EA Sports for a new NCAA Football—building trust with athletes while getting them paid? Well, it’s not a stretch to imagine a next step of approaching broadcasters and conferences and asking for more. 

And by asking, I mean demanding. 


“If you did get a organization up and running that has functioning bureaucracy and can act on behalf of athletes, then you’ve created a monster in the NCAA’s eyes,” says Andy Schwarz, a Bay Area economist who has consulted for college athletes’ lawyers in NCAA antitrust cases. “The video game organization might have the ability to say, ‘by the way, we will advise all of our guys not to play next week unless you grant us some share of the TV revenues, too.’ I think what the NCAA is doing here trying to avoid a slippery slope.”

NIL


The NCAA doesn’t want athletes being paid in any way that could be construed as compensation for sports participation, because that would deep-six its antitrust defense; and the association doesn’t want athletes unified, because unity creates bargaining leverage.


(Regarding the latter point: Conferences and the NCAA itself are basically unions of schools, and both excel at extracting cash from television networks). 


Read in this light, the proposed NCAA Football-squashing NIL restrictions in the working group’s report make a lot more sense. Consider:


athlete benefits must be tethered to educational expenses or incidental to participation …

And:


… Outside the context of providing financial aid up to cost of attendance as allowed by prevailing law, schools, conferences and the NCAA should play no role in athletes’ NIL activities themselves …


And: 


… athletes should not be permitted to receive NIL payments related to their appearance in a live sports broadcasts or rebroadcasts; photos or news accounts of those broadcasts …

And especially:


… the working group is also not recommending any changes to NCAA rules to permit group licenses of student-athlete NIL in what are characterized as group products (like video games). There are legal hurdles to such activity that preclude it as a realistic option for implementation at this time. 


The working group recommends that the NCAA continue to explore whether those legal hurdles can be overcome through efforts described in Section VI, so that this issue can be revisited in 2021 or later …


Read that last part again. Maybe, just maybe, the NCAA can permit the group licenses needed for a video game, depending on the outcome of “efforts described in Section VI.” What, exactly, is Section VI? It’s the part of the report recommending that the NCAA go to Capitol Hill and get Congress to:


a) Preempt athlete-friendly state NIL legislation with a NCAA-friendly national law; 


b) Give the association a long-desired antitrust exemption.


“The courts are scared to be the entity that changes everything in college sports,” says Thomas Baker, a University of Georgia sports law professor and editor of the Journal of Legal Aspects of Sport who has written on college athletes’ NIL rights. “It has been easier for them to keep pretending, keep this veil of amateurism down, and hope that over time, amateurism dies by 1,000 paper cuts. But if the NCAA can’t secure a safe harbor from antitrust litigation, they eventually are going to lose.”


The association already is cozying up to lawmakers. In a December meeting with Sens. Mitt Romney (R-Utah) and Chris Murphy (D-Conn.), NCAA President Mark Emmert told the lawmakers that his organization needed their help “right now.” Meanwhile, the Associated Press reports that the association spent $450,000 last year on federal lobbying, the most it has since 2014, while in the first three months of this year, the Power Five conferences spent $350,000 on lobbying—more than they had previously spent in any full year.


In basketball terms, the NCAA has launched a full-court influence press. And in that context, it’s possible to view the working group’s recommendation to revisit group licensing for video games, someday, as either a dangling carrot or a form of hostage-taking. Give us the legal protection we want, and maybe you can have your precious NCAA Football back.


Fans


So are sports gamers out of luck, condemned to haunt the Internet like Banquo’s ghost with a PayPal account, searching for old copies of NCAA Football 14 and updated rosters to make the title feel new? Should fans of the franchise be—yikes—rooting for the NCAA to get its way in Washington?


No. And absolutely not. Federal intervention that makes college athletes second-class economic citizens isn’t needed to bring back the game. To the contrary, the fairest and fastest path to a NCAA Football restoration is for Congress to do nothing. No national legislation, no antitrust exemption, no trying to wring consensus out of a bitterly divided body facing an ongoing public health emergency and possible Great Depression II against the backdrop of a looming presidential election starring this guy. 


Instead, let state NIL laws go into effect. Let the NCAA file lawsuits. Let the federal judiciary’s reflexive deference to college sports amateurism—an amorphous set of exploitative rules promulgated by a glorified trade association that has never, ever been the actual law of the land, no matter how much the FBI and DOJ want to pretend otherwise—fully crack and collapse under the weight of its own tautological lunacy, the Catch-22 legal logic of college athletes can’t be paid because they’re amateurs, and what makes them amateurs is that they can’t be paid. Free college athletes to earn every NIL dollar they can.


Oh, and also free the NCAA’s member schools to earn more money right alongside them.

Such is the not-so-dirty little secret of the NIL debate: a truly unfettered market could and likely would grow the pie for everyone, just as it does in professional sports. One example? Right now, the NCAA’s proposed rules would prevent schools and athletes from joint ventures. That sets up a zero-sum competition. “Say we rep Trevor Lawerence and want to do a deal with a pizzeria in Clemson,” says Nassar, the marketing executive. “If he can’t wear his jersey, and Clemson can’t also be a sponsor, then the pizzeria might have to pick between the two. And if I’m an existing school sponsor, then I have to worry about all of my competitors going to work with athletes at the same school. That weakens the value for everyone.”


By contrast, collaborative sponsorships strengthen value. “It’s true for jerseys and trading cards and bobblehead dolls and all of the stuff that fans really care about,” Nassar says. “And it’s true for video games.” Is it ever. NBA 2K, Madden NFL, and the FIFA soccer series feature real players and real teams. They dominate sales charts—not just for sports video games, but for all video games. They are pop culture phenomenons, and it’s not hyperbole to say that they bring new fans to and increase excitement for the real world sports they simulate.


During the O’Bannon case, it was revealed that EA Sports wanted to obtain NIL rights for college football players in order to create a more true-to-life game, and was ready to pay extra for the privilege. Since 2008, the NCAA has spent more than $600 million on legal fees and settlements with college athletes, with at least $438.7 million of that directly connected to propping up amateurism. As schools and athletic departments struggle with COVID-19-related budget shortfalls, wouldn’t they be better off collecting checks from sponsors instead of cutting them for lawyers? And wouldn’t it be better still if hungry, food-insecure athletes could fully capitalize on the value of their NILs? The NCAA Football franchise doesn’t have to be a casualty of how the association’s NIL rules currently work. It ought to be a model for how they should work, with players and schools partnering to make the best possible products—and fairly sharing the spoils.