Here We Go Again: More NIL Problems for NCAA Video Games

EA Sports (EA) is being sued by the Brandr Group (TBG) over the name, image, and likeness (NIL) deal it offered to college athletes for the new College Football video game.[1] EA worked with OneTeam Partners to facilitate any group deals for the game pursuant to an agreement made in May, 2023.[2] The game is set to be released in the summer of 2024.[3]

54 Division I schools have contracts that allow TBG to negotiate their group licensing deals.[4] TBG’s lawsuit alleges tortious interference by EA.[5] TBG alleges that they should be able to negotiate any “contracts or deals” regarding the athletes at schools they contractually represent.[6] EA had met with TBG several times between 2021 and 2022 regarding NIL deals for athletes for the games before ultimately deciding to use OneTeam Partners.[7] Thus, TBG claims that EA is tortiously interfering with their group licensing contracts by only offering the ability to opt in to a deal without TBG.[8]

The lawsuit states that EA leaves TBG’s partner schools the choice to either breach their contracts or the schools and their players lose the opportunity to participate in the game.[9]

The deal EA made with OneTeam Partners offers a cash pool for players that totals around $5 million dollars.[10] This would give each player around $500 and would not include royalties for the athletes.[11] Schools are slated to receive around 10% of what is brought in by the game.[12]

One NIL expert has noted that $500 is still value to some athletes, especially those who are not star athletes who can get payments and exposure from their NIL.[13] However, they hoped that the deal will eventually involve a revenue sharing component.[14] They also noted that separate deals may still be negotiated for high profile players, especially players whose NIL are used on the cover or for other marketing initiatives.[15]

Both TBG and athlete advocate group called The College Football Players Association (CFBPA) have criticized the deal, saying that the deal pays the players less than the market value of their NIL.[16] The vice president of the CFBPA, Justin Falcinelli, claims that the game is just a cash grab for which EA is severely underpaying the players.[17] He cited the hype that surrounds the game, as well as the amount NFL players received for Madden games.[18]

Falcinelli said, “the numbers we were given were from 2019, it was disclosed that they got, I think, about $17,000. And then a current NFL player told us that he got a check for $28,000 this year for Madden.”[19]

After urging players to choose not to opt into the deal, Falcinelli asserted that OneTeam Partners and similar organizations do not have the players’ best interests in mind.[20] The deal with EA through OneTeam Partners is just an attempt to get players on board for the lowest amount possible.[21]

This is not the first time OneTeam Partners has come under fire due to group NIL deals with collegiate athletes. OneTeam Partners facilitated a deal with Fanatics to sell jerseys for more than 4,300 athletes.[22] Players were making about $3.92 per jersey, while the jerseys retailed for $140.[23] TBG was able to negotiate a payout of $10-12 per jersey for the athletes who played for their partner schools.[24] The deals with OneTeam have shown that group contracts can be detrimental to college athletes since they do not have a collective bargaining unit that works on their behalf.

After the lawsuit went public, EA Sports stated that the video game is still on track to be released in the summer of 2024.[25] It stands to be the first college football game since 2013.[26] The franchise was brought to a halt by the decision in O’Bannon v. NCAA (2015).[27]

O’Bannon was a collegiate basketball player at UCLA whose likeness was used in an EA video game without his consent.[28] The court held that the NCAA violated antitrust laws by barring compensation to student-athletes for using their names, images, and likenesses since its amateurism rules were not categorically valid, involved commercial activity, and had a significant anticompetitive effect on colleges.[29]

NIL issues led to the end of the original college football video game franchise. After the NCAA permitted student-athletes to profit off their NIL, the new video game franchise is still running into NIL issues. While EA Sports is confident the lawsuit will not affect its release schedule, NIL could prove to be the scourge of NCAA video games.

[1] https://frontofficesports.com/brandr-group-suing-ea-over-college-football-video-game/

[2] Id.

[3] https://www.heartlandcollegesports.com/2023/06/22/ea-sports-college-football-game-still-on-track-for-release-report/

[4] Supra n.1.

[5] https://www.cbssports.com/college-football/news/ea-sports-sued-by-licensing-group-what-it-means-for-college-football-video-game-as-another-nil-issue-arises/; See also https://www.law360.com/articles/1690826/attachments/1.

[6] https://www.law360.com/articles/1690826/attachments/1.

[7] Supra n.5.

[8] Id.

[9] Id.

[10] https://www.on3.com/nil/news/college-football-players-association-organizing-boycott-of-2024-ea-sports-video-game/

[11] https://www.sportico.com/leagues/college-sports/2023/cfb-players-return-ea-sports-game-but-500-payout-debated-1234723300/

[12] Supra n.1.