Photo Source: Twitter/@BuffaloBills
What does this announcement mean for college athletes and Name, Image, and Likeness Laws?
Electronic Arts (EA) Sports announced on Feb. 2, 2021 the rebirth of the fan favorite video game, College Football with a simple tweet “For Those who never stopped believing…”
The announcement surprised the sports and gaming world. Fans rejoiced at the thought of bringing fight songs and ridiculous end-game scores back to their gaming consoles. Legally and financially, many questions ensued. Mainly, will NCAA athletes be compensated as a result of the game?
College sports games ceased to exist after NCAA Football 2014 due to the ruling in O’Bannon. In O’Bannon v. NCAA, Ed O’Bannon, a former UCLA basketball player, challenged the use of players’ images in popularized EA sports games, NCAA Football and NCAA Basketball. The court held that the NCAA rules restricting players from profiting off of their name, image, and likeness (NIL) were subject to antitrust laws. The court reasoned that the NCAA violated antitrust laws because the rules in place were “an unlawful restraint of trade.” However, the court also determined that preserving amateurism was vital and compensation to student-athletes needed to be related to education.
So, where did this leave NCAA athletes? Although this was not a clear win, NCAA athletes were able to get another first-down. The ruling in O’Bannon caused another crack in the NCAA’s seemingly impenetrable wall. NCAA v. Board of Regents made the first crack in acknowledging the NCAA is subject to antitrust laws. O’Bannon, although not a Supreme Court Case, made the second crack. The ongoing case of Alston v. NCAA, currently pending review by the Supreme Court, pertaining to non-cash education benefits, will be the third major crack if the outcome is in favor of NCAA athletes.
For now, EA Sports is believed to only be using NCAA school logos and stadiums. That means players’ NILs will be removed completely from the game. Instead of Trevor Lawrence, a generic Clemson quarterback will be created. This removes the legal liability and pressure for EA Sports and the NCAA to compensate college athletes.
Another legal obstacle that EA Sports will have to face is whether they will include the ability to create players and customize rosters and share these created rosters to the public through the game’s server, also known as “roster sharing.” Legally, it makes sense to disable this feature and steer clear of any potential NIL liability without clear laws in place.
However, there is still potential for this to change. With NIL laws being passed in states such as Florida (July 2021), Michigan, (2022), California (2023), Colorado (2023), Nebraska (2023), New Jersey (2025), and other states such as Iowa, which recently introduced an NIL bill, NCAA athlete compensation seems inevitable. There is a nationwide push for NIL law in both the Senate and the House of Representatives championed by Sen. Chris Murphy, D-Conn., and Rep. Lori Trahan, D-Mass.
As NIL laws continue to be pushed statewide and nationally, the NCAA is going to be pressured to act sooner rather than later. EA Sports announcing the upcoming release of College Football is exciting for fans and a welcoming sense of normalcy during these unprecedented times. For now, let us hope we can put up ridiculous video game like numbers such as eight rushing touchdowns and 409 yards. Well, at least we know Jaret Paterson can.
3rd year law student and Co-President of the Buffalo Sports ands Entertainment Law Society. I enjoy writing and learning more about the intersection of business, sports, entertainment and law.