In a nutshell, Keller—the former star quarterback for Arizona State—is suing EA Sports and the NCAA for monies received as a result of using his likeness in their popular NCAA college football game.
For years, the NCAA has shared "...undisclosed royalties with the NCAA for use of college stadiums, team names and uniforms and the players' images..." while the players, themselves, receive nada.
The case will be argued on this Tuesday in Pasadena and revolves around a ruling made more than a year ago by Judge Claudia Wilken that rejected the notion that the images used in the popular EA Sports games should be protected under the First Amendment.
EA's lawyers argued, at that time, that the depictions are used to "...create works of art much in the same way authors, filmmakers and songwriters insert real people in novels, movies and songs."
Judge Wilken contended that the images were not "transformed" enough to be considered art and, therefore, EA is liable to the plaintiff—in this particular, case, Sam Keller—for damages.
Apparently, under the transformative defense, "a work is considered protected by the First Amendment if it contains "significant transformative elements" or "the value of the work does not derive primarily from the celebrity's fame."
Obviously, by using all the same characteristics of each player—i.e. height, weight, jersey number, hometown, and college team—EA is not exactly transforming anything. In fact, the only thing missing from the game's version of these players is the name itself which, to be honest, can be altered by the player after purchase.
In other words, EA isn't fooling anyone with their intent.
So, if that defense holds, what will it mean for the thousands of players who have been basking in the glow of an empty hand for years? Will the NCAA and EA be forced to fork over millions of dollars to not only former players, but current ones as well, for profiting off their likenesses?
That's hard to say at this juncture, but a ruling against the NCAA and EA could open the barn door wide open for other athletes looking to cash in.
Should college athletes be allowed to make money off their names—especially if the NCAA is making billions off of them each year—and be granted the opportunity to say "yes or no" to being marketed and sold against their better judgment? Maybe. Some might say the athlete is already getting paid enough. After all, they receive free room and board, a full scholarship, medical attention, and many outside perks that many will never garner.
However, isn't there a catch-22 inherent in that situation? Don't the universities, at least at competitive Division-I institutions, recoup a great bit of that investment through television and licensing deals that dwarf the actual cost of the scholarship itself?
Doesn't one hand simply wash the other?
Don't misunderstand, I am not about to start advocating issuing paychecks to athletes—there could be a lot more negatives in that than some can imagine—but I am not against seeing a trust fund being made available for them after they've finished their playing careers—that's something that could be particularly helpful for guys who don't have a shot at the pro level.
It's a suit that definitely bears watching, but it's possible that EA has seen it's luck run out on this one—it could finally be time for them to pay the piper or, in this case, the player.
What say you?
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