Unverified Voracity, With Law-Talkin' Guy Comment Count

Brian May 13th, 2009 at 2:19 PM

Events past and future. Excellent diary—with pictures—from MGoAero on yesterday's Alumni Club event in DC featuring Rodriguez, Beilein, and Berenson, for those interested:

The evening started with an autograph session during which each coach was scattered around with throngs of people surrounding. The first humorous event of the evening was watching Bill Martin wander around with... fewer people, and at one point introducing himself to a confused little boy for someone to talk to. Rodriguez obviously had the longest line, but listening in on some of the conversations, the coaches were refreshingly honest and down-to-earth in their dealings with the fans.

Plus Yvgeni of Nothing Is Illuminated has a thread on the matter plus videos of the thing on his home site:

If you're in the Chicago area you can catch the show your ownself at the Standard Club tomorrow. Details can be found on the Alumni Association website.

Suin' and hopin' and prayin'. More on this Sam Keller lawsuit, which has ignited the college football commentariat in a way that would be surprising if it wasn't May. Darren Rovell says these guys have a case:

I've seen many lawsuits brought about by student athletes in my day and this is probably the best case I have ever seen constructed. I think Keller was smart to go after the video game business instead of the jersey business because I think he can make a better case with the former even though Nike and adidas call up football programs so that they can only produce jerseys with the numbers the stars are wearing each year.

Meanwhile, a law-talkin' reader who works at a class-action firm that works closely with the one Keller has retained says these guys are "pretty big time" and that if they "didn't think this suit had merit, they wouldn't be wasting their time on it." He's gone through the complaint, so let's hand the mic to him. I've bolded some parts for emphasis:

The complaint is pretty thorough and lists several causes of action which all have different remedies, but in general it asks for the following basic things as a remedy:

-Damages- This would include money to compensate for the loss of past earnings/punish EA and the NCAA for their conduct/etc. Now, assuming the court certifies the class (which is a big, big assumption) any damages would be paid out on a class wide basis. So each athlete would be due some percentage of the pot of money at the end, minus the plaintiffs' attorneys' cut. Usually, the class rep (Keller, in this case) would be due a slightly larger percentage to compensate them for time and effort. Like, Keller may be due a couple extra grand. It's not (supposed) to be a huge amount.

-Disgorgement of profits- Meaning that EA would have to give back (to the class) all the money they've made off their illegal conduct. This is generally an appropriate remedy for unjust enrichment suits like this, but I really, REALLY doubt that a court would actually do this to EA. Basically, Keller's asking for this for leverage.

-Destruction of all copies of the offending titles- See my comments on Disgorgement.

-Equitable/Injunctive relief- This is the bit you were worried about in your article. Keller's asking the court to prevent EA from making games in the future where athlete's likenesses are used. If they get this, then we're looking at randomization and the games will suck ad infinitim.

My thoughts on what is likely to happen from here on out: EA is going to fight this like hell because this is basically the survival of their brand. Keller (or, more accurately, Keller's attorneys) know this and will push strongly for an early settlement. EA may be able to make a small concession (like randomizing the state of origin or skin color or whatever) in order to give the settlement an appearance of legitimacy for the court and that might be that. In that case, everyone will get a small amount of money and EA still gets to make their products. The problem with THAT solution is that it leaves EA open for another suit a few years down the road that alleges the same basic things, but I'm sure they'd take that. This is kind of what everyone should be rooting for. The IDEAL solution (as you alluded to) is to make ongoing payments to college kids for their likenesses in the future, but I think we can both agree that the odds of the NCAA signing off on that are somewhere between nil and bupkis.

If they don't settle early, then EA may win on class certification (which is a process that takes a year or so all by itself) and then this all pretty much goes away. But if it gets past that point and Keller can certify the class, then EA is very probably fucked (legal term).

Bottom line: Unless EA can kick this stuff out on a "technicality" within the next year or so, we're very likely going to have some change to the way EA makes their college games. The only question is how big the change will be and how much EA will have to pay out in the interim.

It's always been a fiction that EA wasn't profiting off the likenesses of college athletes, especially after consoles hooked themselves up to the internet and roster downloading became commonplace. The fig leaf of not using players' names doesn't change the fact that it's Mike Hart in the #20 jersey, and that this is an illegal use of player likenesses. Listen to the law-talkin' guy.

If the NCAA has any sense they will use this opportunity to provide players in revenue sports some of the fruits of their labors. Here's an opportunity to provide some level of payment over and above the scholarship money they're already getting. The money comes from an outside source—so it won't cannibalize whatever the NCAA wants to do—and can reasonably be distributed on an equal basis to everyone. I'm betting EA would prefer that to randomizing players entirely if they lose the suit. There is a way to comply with the law that is a win-win and a way that's lose-lose. The NCAA should pick the good one, because in all probability they're going to have to choose.

Unless, that is, EA's lawyers boot up a 2003 version of the game and use John Navarre to option the universe into submission. In that case, all bets are off.

Just don't grow awesome hair, kid. Oklahoma's decisions on which marginal characters to keep and which to ditch are mystifying. Last year, wideout Josh Jarboe brought a gun to school and got expelled. Oklahoma decided they'd still take him but he was on triple-secret probation. Jarboe then showed up on the internet smiling as he rapped about, you know, things that are in rap, at which point Bob Stoops said this:

"Kick a guy off the team for what he says?" Stoops said. The whole Internet culture frustrates Stoops. "We're starting to talk about everything kids say and do," Stoops said. "Now we're in people's homes, in their private spaces."

The probation was so triple-secret that not even Stoops knew about it. The local vultures in the Oklahoma newspapers swooped in and the kid got gone.

Now enter Justin Chaisson, who has issues at least as severe as Jarboe's (warning: link has video that plays automatically; advise you skip it):

Outside the coffee shop, Chaisson grabbed the girl's arm and forced her into the back seat of his sport-utility vehicle, according to the report.

The girl told police Chaisson punched her in the ribs and drove her to the desert before pulling her out of the vehicle. She said that’s when he placed a screwdriver to her neck and threatened to kill her, according to the report.

The reprehensible Barry Tramel, the main vulture mentioned above, has an opinion on this: take him because now we're all cynical and stuff. What's the message here? Just don't show up on the internet screwing around with your friends and we're good? Avoid amazing dreadlocks?* Words are words, man, especially when they're not directed at anyone.

*(Actually, given Johnny Sears this might be a good message: kids, if you have amazing dreadlocks they will bring you naught but misery.)

Etc.: I think I'm a fan of Philadelphia's new MLS team. "Join or Die": I choose join.

Comments

Kinda Blue

May 13th, 2009 at 2:45 PM ^

I would not be surprised if, going forward, the NCAA or the schools or some collective group required athletes to assign, license, or waive any right to assert a right to these "athlete likenesses" or even the use of their name as a condition of their particpation/eligibility in NCAA football activities or to receive their scholarship from the school.

That would seem the easiest way to maintain the status quo and avoid future litigation.

k bizzle

May 13th, 2009 at 3:16 PM ^

Keller has retained says these guys are "pretty big time" and that if they "didn't think this suit had merit, they wouldn't be wasting their time on it."

I'm sure EA will have a team that can get down to business as well. With so much money at ri$k they may even have to go to Jackie Chiles.

Erik_in_Dayton

May 13th, 2009 at 3:58 PM ^

Sadly, it's hard to imagine the NCAA allowing players to make any money from the games...His motives might not be entirely pure, so to speak, but I applaud Keller. Pointing out the hypocrisy of the products the NCAA licenses (in view of their puritanical take on athletes making money) is a good thing, generally speaking.

WolvinLA

May 13th, 2009 at 4:38 PM ^

Does anyone know who is representing EA? I heard Morrison & Foerster, which would make some sense since they are a huge firm with their home office in SF. Can anyone confirm or correct this?

AC1997

May 13th, 2009 at 4:55 PM ^

I don't see the NCAA ever even considering payment for the players, in any form. That is too far removed from their way of thinking.

What I would like to see them do is to allow some money to be paid back to players for their likeness. It doesn't have to be huge, just something. That money is not accessible to the athlete until after they graduate. It is sort of like a trust fund. You could tie it perhaps to academic standing or something and players get money deducted if they don't meet certain standards.

I'm sure there are many things wrong with that scenario, but that's what I'd like to see. If they players knew that they had this money, however large or small it was, waiting for them as long as they didn't get kicked off the team and kept in reasonable standing, that's incentive for them to do well.

Maybe the NCAA could implement this with the argument that the likeness is bringing positive attention to the school, thus allowing the payment. But if the player does something to attract negative publicity (grades, drugs, kicked off team, etc.) then they aren't entitled to that money anymore.

And if you hold the payment until they leave school, you're not technically paying an amatuer athlete.

Don

May 13th, 2009 at 5:18 PM ^

while standing up against a blank concrete wall.
I'm in favor of the sort of plan that AC1997 puts forth here. I also think the NFL, which has been getting a free ride on player development forever compared to the NHL and MLB, should kick in a good deal of dough. Put it into interest-bearing accounts that are accessible upon graduation. And stipulate that the NCAA can't get a fucking cent out of it.

Wolv54

May 13th, 2009 at 6:17 PM ^

sprinkled on it. Sam Keller was not hurt by this game nor did EA profit off of Sam Keller. You've got a guy whose dreams of being an NFL QB was pronounced dead at the scene and now he wants a cash grab however big or small. Nobody bought NCAA football to play as Sam Keller; not one person. This is all legal ramblings by class action lawyers (extortionists) who use the laws and legal system to make a profit. You know who wins in any class action lawsuit? The lawyers do.

You can get up on a moral high horse and talk about the legalities or the merits of the case, but just ask yourself one question: If you were 20 years old and your likeness was used in a badass video game, would you be pissed off about it and feel like you have been infringed upon? Hell no you wouldn't.

Blue_Bull_Run

May 13th, 2009 at 6:29 PM ^

Two things I'd like to point out:

1) If your spread the amount of money that EA "owes" to the players equally to all NCAA football players, then the players wont be left with much. Perhaps enough for a crazy night at the bars, or an iPod. But its not like every player will be getting a new 'vette. So, to that end: a) the NCAA could look the other way, or b) players could set up a constructive trust whereby they either receive payments if they are used in 4 or 5 versions of the game (and therefore have already completed their NCAA eligibility), or donate the money to the football team (which isn't gonna be a whole lot).

2) EA could always randomize the players. As long as players are allowed to be customized, there will be someone who posts an active roster on the internet for downloading. The players are in for a long battle if they think they can stop people from downloading rosters to customize a game that is originally randomized.

Logan88

May 13th, 2009 at 6:33 PM ^

Fortunately for Stoops, this business with Chaisson should be a "no brainer": dump him. Dude's production fell WAY off from his junior year when Rivals declared him a Top 100 4 star stud. Jr Year: 102 Tackles and 23 Sacks vs. Sr Year: 46 Tackles and 5 Sacks.

Verdict: Sell!

Seriously, though, this guy is legally an adult and threatened to kill his girlfriend while holding a screwdriver against her neck after dragging her out into the middle of the desert. Should you really get an all-expenses paid college education to a major public university when this is what you are doing with your down time?

backusduo

May 13th, 2009 at 8:21 PM ^

If this goes through next year's NCAA game is going to have a bunch of players that look nothing like the real players, with unrealistic stats, because even if you changed Mike Hart to white, but he still had the same dimensions and talents, they could still say you are profiting. We all know the NCAA isn’t going to change their stance, so that just means NCAA fans are going to pay from this lawsuit. As a Michigan fan, that lives in AZ, thanks again Sam Keller. Maybe you should have focused on staying one place and learning how to be a college QB, instead of taking a tour of the Big 10, Pac 10, and Big 12, and now ruining the best game on consoles.

DrDetroit

May 14th, 2009 at 9:06 AM ^

I do not see how this lawsuit has any merit.

The athletes are public figures. Each University will release a media guide with a picture of the players. The players will be made available for interviews etc etc.

Could they next sue newspapers for making money by using pictures of the players during a game? The newspaper would be using the players likeness.

This to me is basically the same as a Papparazi photographing celebrities and then selling the images. People magazine then publishes the images and literally makes money of the likeness of the celebrity.

Can someone explain to me why this has any merit?

Off hand, I am guessing that this lawsuit was brought about to just get a quick settlement from EA for Keller.

Erik_in_Dayton

May 14th, 2009 at 9:38 AM ^

The difference between, say, People magazine having Brittany Spears on the cover and EA Sports using player likenesses is that People is using Spears' image in the context of journalism (I use the term in it's loosest sense, of course). EA Sports, by using player likenesses, is arguably co-opting an unpaid endorsement...To put it another way, People magazine can have a cover with a picture of Brittany Spears that says, "Brittany Spears has alien baby" but they can't, w/out her approval, run an add that implies that she endorses People magazine as a product (w/out her approval).

Re: Keller, I don't think he's likely to see much money. No one player can say they were deprived of that much.

Sgt. Wolverine

May 14th, 2009 at 1:21 PM ^

The newspapers are using the photographs for editorial purposes, which means Keller isn't going to sue them unless he wants to screw with the freedom of the press (if news photos required model releases, a lot of great news photos would never be published). If somebody started using the photo for commercial purposes -- like advertising -- then they'd be in trouble.

yrro

May 14th, 2009 at 4:22 PM ^

Just to get an idea of scale for possible rewards/damages.

EA Sports NCAA Football sells about 1 million new copies of their game a year across all platforms.[1]

Each game costs $60 new.

There are about 119 Division 1-A schools.

Each of these schools can have 85 players on scholarship.

So assuming that all players' likenesses have equal value (this is patently false, but all of their likenesses are being used without permission, and since none of them can sign commercial contracts, I don't see how exactly they could compute the relative value of Sam Bradford versus Nick Sheridan), if EA game up all of their revenue from the games you'd be looking at a little under $6,000 apiece per year, minus lawyers fees.

This scenario is unlikely, but it tells us what kind of numbers we're looking at. There are a lot of players, but the games do gross over $50 million dollars a year.

Personally I think it's complete bullshit that the NCAA lets them use everything about the players but their names without paying the players anything. They make how much money for the schools? But they get paid less than minimum wage.

[1]http://www.pastapadre.com/3109/ncaa-football-09-sales-numbers