A former college quarterback is suing video game company EA Sports and the NCAA for using his image in a popular video game without his consent in a case that legal experts say could affect the long-brewing argument over using athletes’ digital likenesses.
Sam Keller, who played for Arizona State and Nebraska universities from 2003-07, filed a lawsuit this spring arguing that student athletes should be compensated when their likenesses are used in video games, even if their names are not printed on their jersey. The case’s initial motion won’t wrap up until late July, and the case likely won’t reach a courtroom until late 2010, said Leonard Aragon, one of Keller’s attorneys.
Keller’s argument for student compensation came just weeks before the NFL Players Association agreed to pay retired players for using their names and images in video games. The NFLPA agreed to dole out $26 million to the more than 2,000 players named in the suit–meaning each NFL retiree should receive about $13,000.
EA Sports and the NCAA did not return several inquires from eCampus News.
Law professors interviewed by eCampus News said the issue of student-athlete compensation has lingered for more than a decade now, and cases have been complicated by superior video game graphics in recent years. Gamers now can control players whose bodies, equipment, and even facial hair have been copied to offer a better virtual experience.
"Not until the U.S. Supreme Court rules on a similar case will we see a final resolution to this issue," said Jeff Spurlock, associate director of Troy University’s Hall School of Journalism & Communication.
Darryl Wilson, a law professor at Stetson University in Tampa Bay, Fla., said college athletes have a more difficult task in arguing for compensation from video-game makers because colleges pay for their higher education.
"That’s why athletes in the NCAA have weaker ground to stand on than professional athletes," Wilson said. "The athletes are just tools [who] are supposed to believe the ultimate benefit is [a] free education. … If [colleges] shared money with players, it might be resolved."
Keller is the only one-time collegiate athlete named in the lawsuit, but Aragon, his attorney, said a former basketball player might be included in the court case soon. Aragon acknowledged that student athletes are given scholarships worth tens of thousands of dollars, but he said players still should receive a piece of the massive profits companies reap from popular sports games.
"Everybody is making money off of these young men expect for the young men," he said. "They are getting a college education, but they’re more than compensating the school for that college education."
Improving video-game graphics over the past decade, Aragon said, has created a digital duplicate of every player on college and professional sports teams. For example, Roy Hibbert, a former Georgetown University basketball standout drafted into the NBA last year, wears a distinctive band that covers most of his left arm–a detail copied in NCAA basketball video games.
"They do match up every idiosyncratic trait of the players," he said. "You know exactly who it is. It makes a big difference. They’re clearly violating the likeness of these players."
Wilson said players in video games of the 1980s and 1990s had generic body types and almost none of the unique qualities found in today’s games. The more athletes’ images are copied, he said, the better argument they can bring to a courtroom.
"That’ll help them go a long way toward winning the case," Wilson said.
Eldon Ham, an adjunct professor who teaches the course "Sports, Law, and Society" at Chicago Kent College of Law, said the issue of using players’ likenesses likely won’t reach the Supreme Court, but rather will be decided in lower courts.
"If we get different decisions in different places, the Supreme Court might clear it up, but [decisions at lower courts] generally end up sticking," he said.
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