[kcchief19]

Here's something worth noting from the NCAA's Web site (their underlining, not mine):

Athletic scholarships for undergraduate student-athletes at Division I and Division II schools are partially funded through the NCAA membership revenue distribution. About $1 billion in athletic scholarships are awarded each year. Over 126,000 student-athletes receive either a partial or full athletic scholarship. However, these scholarships are awarded and administered directly by each academic institution, not the NCAA.

If you look closely at the game, you'll see that the licenses inside the game are struck by EA with the individual bowl games, conferences and teams. The NCAA does not have any contract for scholarship with the players; it is the universities themselves that have the contract. Why is Sam Keller not suing Nebraska and Arizona State, since they also profited from the use of his likeness in the game? The answer is that Keller's scholarship agreement with those universities provides them with the ability to use his likeness.

The NCAA Constitution does cover how member institutions may use a student athlete's likeness. Check out page 71. http://www.ncaapublications.com/Uplo...d6827c16bc.pdf
Since Keller's lawsuit doesn't specify what the constitution says, let's check it out for ourselves:

Any commercial items with names, likenesses or pictures of multiple student-athletes (other than highlight films or media guides per Bylaw 12.5.1.7) may be sold only at the member institution at which the student-athletes are enrolled, institutionally controlled (owned and operated) outlets or outlets controlled by the charitable or educational organization (e.g., location of the charitable or educational organization, site of charitable event during the event). Items that include an individual student-athlete’s name, picture or likeness (e.g., name on jersey, name or likeness on a bobble-head doll), other than informational items (e.g., media guide, schedule cards, institutional publications), may not be sold; and (Adopted: 1/16/93, Revised: 1/9/96, 4/27/06 effective 8/1/06)

So, let's say for a moment that Keller's right -- the video games use his likeness. If that is the case, that is not allowed. However, it is not the NCAA that is doing it; rather, it is the university. So in effect the schools are the ones in violation of the NCAA Constitution. Violations of using a player's likeness are considered an institutional violation and the school's could face penalties.

So, in essence Sam Keller is claiming he and every other NCAA athlete is entitled to damages because the NCAA is not putting teams on probation for allowing their student athletes' likenesses to be used in the video games. How is he harmed? Rereading the suit, Keller never actually says the universities used his likeness without authorization. Instead, Keller says the NCAA isn't following its own rules.

How would that be different from me suing the state of Missouri because the guy passing me on the highway was speeding and the highway patrol didn't give him a ticket? Aren't they just encouraging speeding by not enforcing their own rules?

But we are left with a question of whether or not the video games are "informational items." I think it's a very grey line. Strictly speaking, the school may be breaking NCAA rules. However, the school's are violating the player's right to the use of his or her likeness; the school's are violating NCAA rules. The penalty for that is not compensation to the players; it's NCAA sanctions.

I guess the winner in the lawsuit if Keller prevails will be the FCS schools. They aren't in the game so I guess it will be Northern Iowa vs Appalachian State in the Rose Bowl!