NCAA Sam Keller vs. EA Update (Patent Arcade)

[rbertels]

And just another point briefly. This isn't a $$ grab by Keller. Even if he were successful, he wouldn't get much $$ at all, if any. The most likely result if he were to win would be an injunction prohibiting EA from using player's likenesses. The only people who would get rich of this case if Keller wins are his lawyers, as they would get attorneys' fees paid by EA.

[ODogg]

The fly in the ointment of that logic is that when student athletes accept a scholarship they are, in effect, signing away the rights of their likeness to be used by the NCAA. So in effect, the NCAA is the union, much like the NFLPA is the union for the NFL. And while you make a very compelling argument in your post above the argument I put forth is that of what Massnole espoused and he is an attorney. I'm sure the NCAA and EA are worried, and no doubt should be, but that is true of any lawsuit of this nature.

I doubt anything will come out of it. And if it does it will be appealed and/or EA/NCAA will come to terms with Keller directly for an undisclosed amount of cash with sealed records indicating that EA/NCAA admitted no guilt. If anyone is waiting for this case to establish or change the way the NCAA and EA does business in regards to player likeness they will be waiting for a long time.

[ODogg]

What is your logic behind saying this is not a money grab? These types of lawsuits almost always end up with the defendant paying someone to go away while not admitting guilt. I'm sure that this is what Keller is hoping for, a little $500,000 payday and he'll agree not to speak of it again. The NCAA and EA wins and this all goes away. For a while anyways, until someone else wants a payday.

[WinkW]

Quote: Originally Posted by rbertels

Sorry, but some of you completely miss the point. This case has nothing to do with whatever benefits the NCAA provides to student athletes - directly or indirectly. You can bad mouth Keller all you want, but what's driving this is a group of attorneys who realized a real legal problem, and use Keller because you would have to be directly affected by it to bring the lawsuit. I guarentee EA's in house legal staff are very, very nervous about this case, as it affects more than just the NCAA Football game. While an athlete who enrolls in a university allows the NCAA to use his likeness in promotional matters, there is nothing allowing the NCAA to then sell that likeness to a 3rd party, and allowing that 3rd party to then use the likeness for profit. This is essentially what the NCAA is doing in knowingly allowing EA to use rosters that are substantially similar to the actual teams. I don't think anyone can seriously argue that 90% of the players in the NCAA series are not strikingly similar to their real life counterpart. The only thing missing is the name. Using anyone's likeness for profit, without permission, regardless of what that person does, incurrs severe civil liability. This is true whether you are a professional athlete, an amateur athlete, or a factor worker in Ohio. Obviously, it's only worth an attorney going after it though if there are damages, or in other words, a lot of $$ involved, like in the EA Sports games which sells millions each year. Think about it this way, When an someone joins the NFLPA or the MLBPA, they give that union the right to collectively engage in negotiations for any product using the likenesses of all players in the union. This is how the NFLPA is licensed to Madden. If there were no such union though, each player would still have an individual right to not have his likeness used for profit. You couldnt make a football game featuring a team in Indy that had its 1 best player as QB #16 from Tenn. with the same height, age, weight, skin color, as Manning without risking being sued, regardless if there is a union or not. This same right exists for all NCAA players, and doesn't cease to exist just because they got a scholarship. That's a red herring argument at best. The same problem exists with any "classic rosters" in any sporting game. It is pretty easy to determine who these players are, and if they are not in the players union anymore, they don't get a dime, unless the players association works out a seperate deal to avoid a lawsuit like the NFLPA did last year. I enjoy playing these games as much as anyone, but that doesn't change the fact that these players' likenesses are being used without their consent, for profit, by a 3rd party. I bet the U.S. Supreme Court ends up deciding it.

I'm pretty sure with classic rosters, they actually negotiate a fee to use the person's likeness with either the person or the people who control his image (usually family) if the person is dead. This is an interesting legal issue though.

[rbertels]

Quote: Originally Posted by ODogg

The fly in the ointment of that logic is that when student athletes accept a scholarship they are, in effect, signing away the rights of their likeness to be used by the NCAA. So in effect, the NCAA is the union, much like the NFLPA is the union for the NFL. And while you make a very compelling argument in your post above the argument I put forth is that of what Massnole espoused and he is an attorney. I'm sure the NCAA and EA are worried, and no doubt should be, but that is true of any lawsuit of this nature.

I agree that is the NCAA/EA argument. Doesn't mean it's correct, as you yourself concded by saying "in effect." Just as I can't say mine is correct. Ultimately the law is what 5 justices say it is. Even if the NCAA is a union, there is nothing saying the NCAA can allow a 3rd party such as EA to profit off it's union members - that's the fly in ointment of your logic. I am an attorney too if that somehow gives me cred in your view.

[ODogg]

Yeah they have to negotiate with the individuals directly when they are out of the union, which is why we don't see many sports games using classic rosters as it's a pain to deal with that many people. Although Fight Night is a great example of how it can be done.

[rbertels]

Quote: Originally Posted by ODogg

What is your logic behind saying this is not a money grab? These types of lawsuits almost always end up with the defendant paying someone to go away while not admitting guilt. I'm sure that this is what Keller is hoping for, a little $500,000 payday and he'll agree not to speak of it again. The NCAA and EA wins and this all goes away. For a while anyways, until someone else wants a payday.

I'll give you the short answer. Keller represents a class. Essentially, any damages awarded would be spread to all the NCAA players in that class, not just Keller. Doing the math, there is no way Keller gets rich. His attorneys can get all the time they spend on this case, including appeals, paid by EA if they win though. Doing the math on that for multiple attorneys probably making $400 an hour, for what I'm guessing will be years of litigation, means any victory by Keller gets his attorneys a lot of $$.

[ODogg]

oh ok, that makes sense. i still don't think he'll win, EA and the NCAA have more money than God and probably the best attorneys that it can buy. it'll be dismissed IMO.