Is EA Still Violating Name, Image, and Likeness Rights of College Athletes?
It has been six years since the landmark decision in O’Bannon v. NCAA where the court held that collegiate athletes must be compensated for their use of name, image, and likeness. It has been six years since the last NCAA video game was released because, despite Electronic Arts (EA) agreeing to compensate collegiate athletes, the NCAA said compensation would destroy the idea of “amateurism.” The NCAA uses the idea of amateurism as a scapegoat to
avoid compensating players.
What is amateurism? Amateurism is whatever the NCAA says amateurism is at any particular moment. Judge Claudia Wilken wrote in her opinion in the
O’Bannon case that “[t]he association’s current rules demonstrate that, even today, the NCAA does not necessarily adhere to a single definition of amateurism.” O’Bannon v. NCAA , 7 F.Supp.3d 955, 1000 (N.D. CA 2010). Because of the O’Bannon decision, EA Sports was unable to continue producing NCAA sports games unless players were compensated for their name, image, and likeness.
Ed O’Bannon is a former NBA basketball player who was a star for the 1995 National Championship basketball team at UCLA. In 2008, Ed O’Bannon visited a friend’s house, where his friend’s son told Ed that he was able to play the video game as Ed. O’Bannon wanted to see for himself, so he turned on the video game and sure enough he saw an avatar of himself who not only visually resembled him, but played for UCLA, and wore his jersey number, 31. Most people, including O’Bannon at the time, thought it was interesting that he was able to play as himself in a video game. However, O’Bannon never consented for EA to use his name, image, or likeness in the video game and he was not compensated for it. In 2009, O’Bannon brought a lawsuit against the NCAA and the Collegiate Licensing Company (CLC) for antitrust violations. “O’Bannon’s complaint was that the NCAA’s amateurism rules, insofar as they prevented student-athletes from being compensated for the use of their NILs, were an illegal restraint of trade under Section 1 of the Sherman Act, 15 U.S.C. § 1.” (Complaint, O’Bannon v. NCAA , 7 F.Supp.3d 955 (N.D. CA 2010). The court ruled in favor of O’Bannon due to the NCAA’s failure to compensate athletes for their right of publicity. However, instead of allowing EA to pay athletes and continue their historic collegiate sports video game franchise, NCAA said it would violate the rules of amateurism and ultimately ended EA college sports games.
It has now been six years since the O’Bannon decision and EA has been unable to produce video games that depict collegiate athletes without proper compensation. However, EA still produces professional sports games, the most popular game being Madden, a video game simulation of the National Football League (NFL). EA is allowed to use the rights of publicity for NFL athletes because of a licensing agreement with the National Football League Players
Association (NFLPA) and EA. Any player that is a part of the NFLPA has given their consent for their name, image, and likeness to be used in Madden. Players are not paid as much as you would think; NFL reporter Tom Pelissero stated “The 2017 active player payment is $17,662 and 2018 payment is $16,966 . . . $1[,000] for [practice] squad guys.’ This number may seem low considering that Madden takes in more than $600 million annually, but the NFLPA has collectively bargained for this licensing agreement with EA. So NFL players and coaches in EA’s Madden are compensated for the use of their name, image, and likeness, but does this mean that every player that appears in Madden is compensated for their name, image, and likeness?
There has not been an NCAA sports game since the O’Bannon decision in 2015, however, that has not stopped EA from still getting college players likeness into Madden. EA allows for User Generated Content (UGC) to be uploaded onto their servers for use by other EA users within the online community. This UGC includes entire draft classes of collegiate athletes from draft classes as far in the future as 2023. EA Users will create draft classes that include all the names, weights, heights, colleges, and physical abilities of each collegiate athlete in an upcoming draft. Then, the users will upload the roster to EA and it becomes accessible to everyone within the Madden community to upload onto their respective game. EA makes it very easy to access these draft classes by implementing an “Import Local File” button that brings you to the UGC that is available for upload. The pictures below show a step-by-step walkthrough of how EA allows for college draft classes to be imported.
1. This is where EA discusses that you can edit draft classes and gives you the option to
“Import Local File” that has future draft classes.
2. After you click the “Import Local File” button, there is a list of the most downloaded files to choose from, some being downloaded over 600,000 times “without EA’s knowledge.”
3. After you import a draft class, you are able to view the players in the draft class. As shown above, this is the 2021 NFL draft class with top prospect Trevor Lawrence. Lawrence’s avatar resembles him, he is also listed as a quarterback from Clemson University that stands at 6’6” and weighs 216 pounds.
EA has been made aware of the issue regarding user-created rosters before in Keller v. Electronics Arts, Inc . In Keller , former University of Arizona and Nebraska quarterback, Sam Keller, brought a legal claim that said EA’s NCAA football games used his name, image, and likeness without his consent. ( Keller v. Electronics Arts, Inc. , 2010 WL 530108 (N.D. CA 2010). In his complaint, Keller alleged that “. . . consumers may access online services to download team rosters and the athletes' names, and upload them into the games. [Keller] claims that, in recent iterations, EA has included features that facilitate the upload of this information .” ( Id. at 2) This complaint is a key aspect to prove that EA had actual knowledge that users were creating downloadable rosters that violate rights of publicity of collegiate athletes as early as 2013.
So Is EA responsible for monitoring the online community in order to avoid violation of players' right of publicity and misappropriation of their names, images and likenesses? EA has a pretty straight forward and detailed User Agreement that outlines their responsibility and liability when dealing with UGC. Section 5 of EA’s User Agreement states users “may not upload UGC that infringes a third party's intellectual property rights or that violates the law, this Agreement or a third party's right of privacy or right of publicity.” However, EA does not state that they are required to monitor the UGC if violates the user agreement:
EA may, in its sole discretion, remove, edit or disable UGC for any reason, including if EA reasonably determines that UGC violates this Agreement. EA does not assume any responsibility or liability for UGC, for removing it, or not removing it or other Content. EA does not pre-screen all UGC and does not endorse or approve any UGC available on EA Services.
This language in Section 5 is used to disclaim any liability surrounding UGC. EA makes sure to say they have the ability to remove any UGC that violates a third party's right of privacy or right of publicity. The UGC content that allows for the upload of full collegiate rosters is a clear violation of EA User agreement due to the violation of third parties rights to publicity. But it seems that EA purposefully creates the overbroad disclaimer in order to monitor and police what they choose to. EA can make sure they do not allow UGC that may include hate speech, offensive images, etc. but can leave content that actually benefits their brand and game: the ability to use collegiate athletes.
Can EA be responsible for content that they did not create? Generally speaking, EA would not be held liable for content created by their users if they made a good faith effort to monitor the online community. EA in section 3 of their User Agreement describes what their content includes and what EA owns as content. In this section they discuss UGC and state: “Content also includes user-generated Content (‘UGC’). UGC includes EA Account personas, forum posts, profile content and other Content contributed by users to EA Services (emphasis
added). All Content is either owned by EA or its licensors, or is licensed to EA and its licensors pursuant to Section 5 below.” EA states that UGC is owned by EA once it is uploaded onto EA servers. So then the question would be if EA chooses not to police UGC content, then does it become content owned by EA? If this is the case, then the imported draft classes that violates a third party's right of privacy or right of publicity, is owned by EA.
The question then becomes: does EA police/monitor their online community? The answer is an astounding yes. Not only does EA monitor their online community closely, they banned over 50,000 users in October of 2019 for hate speech. EA has been very active in fighting against hate speech in their online community and have implemented a new “Positive Play Charter” to take action against abuse and harassment in online games and to create a positive playing experience for all. EA’s website has a page that sets the rules for online gaming as well as the distinction between a ban and suspension . One of the rules that EA lists is “Follow the Law - Wherever You Are.” which states: “ To ensure everyone feels safe, it’s important that you follow the local laws when playing our games. This not only includes keeping things legal, but reporting anything you see that breaks the law or promotes doing so.” EA bans users for hate speech, makes sure people are not cheating when playing online, but swing and misses when it comes to protecting third party rights of publicity? EA has knowledge that their games allow users to upload college rosters into the game, but fail to monitor this aspect of the online community because it is beneficial to their business.
The biggest obstacle will be crafting a legal claim against EA in order to hold them liable for the violation of NIL rights. The most likely claim would be negligence; that while EA prohibits intellectual property violations in UGC, it has not reasonably attempted to enforce those prohibitions and, as a result, these intellectual property violations are not deterred. This would show that EA’s continued negligence to monitor these violations has caused harm to collegiate athletes because they have not been compensated for their intellectual property rights in the game. Negligence would be a pretty straightforward argument, however, there would be some difficulty showing that EA has a duty to college athletes by protecting their NIL rights; specifically if their duty extends to user generated content.
An alternative argument would be the tort of deceit—that EA is knowingly misrepresenting that it is policing the community when violations occur all the time. Whether there is sufficient evidence to prove liability is another threshold question, but this theory of liability is a possibility. California is very expansive in their view of tort law in the business world and recognizes the tort of deceit. It helps that EA is incorporated in the state of California, making this law applicable within the state. “The tort of deceit or intentional fraud requires that each and all of the following elements be proved: ‘(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’” ( Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974; See also Gonsalves v. Hodgson (1951) 38 Cal.2d 91, 100-101; Younan v. Equifax Inc. (1980) 111 Cal.App.3d 498, 512.). Again, proving liability would be a threshold question. Would there be enough evidence to prove intent? Knowledge of falsity? Who knows. This would be dependent on the evidence that comes out through trial, testimony, and discovery.
It is important to understand that liability against EA would be difficult to prove, especially if EA is able to show that they have taken measures to try and stop potential IP violations by users. EA would most likely argue that it is nearly impossible to stop all IP violations that occur within the online community. It could be very expensive or restrictive to try and monitor this aspect of the community. As long as EA is able to show that they have taken reasonable measures in order to prohibit IP violations in their video games, then that is generally enough to disclaim any liability. It would be an interesting case to bring before the court to see if EA is intentionally circumventing the O’Bannon decision. EA has knowledge that this occurs, fails to top these violations, and it harms college athletes. Whether or not someone could win against EA is another question, but it is something to think about given the importance of NIL rights in college sports today.