NCAA Football 11 News Post

NCAA Sam Keller vs. EA Update (Patent Arcade)

07:18 PM - February 14, 2010 by Steve_OS

Patent Arcade has an update on the situation.

Quote:


	"In this round of motions, EA argued that Keller�s claims were barred by the First Amendment and other possible defenses under California law. As to EA�s First Amendment argument, the court stated that �[a] defendant may raise an affirmative defense that the challenged work is protected by the First Amendment inasmuch as it contains significant transformative elements or that the value of the work does not derive primarily from the celebrity�s fame. . . . The defense poses what is essentially a balancing test between the First Amendment and the right of publicity.� Slip. Op. at 6-7 (internal quotes and citations omitted). With this standard in mind, the court determined that �EA�s depiction of [Keller] in �NCAA Football� is not sufficiently transformative to bar his California right of publicity claims as a matter of law.� Slip. Op. at 9. In arriving at this conclusion, the court noted that the quarterback for ASU in the game shares many of Keller�s characteristics, as the in-game ASU quarterback wears Keller�s jersey number, has the same height and weight, and is purportedly from the same home state. Id."

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Member Comments

# 41 HokieB @ 07/13/10 02:05 AM

This case pisses me off.

I don't know the name of one single player on, say, Akron.

And if I play a game with Akron with default rosters, I still will not know a single player's name.

I'd love to put Keller on the stand, read off the number, weight, height, home town, etc. of the third-string LG on Idaho, and have him tell me who this player is.

# 42 knyght @ 07/13/10 02:14 AM

Quote:

Originally Posted by HokieB


	This case pisses me off. I don't know the name of one single player on, say, Akron. And if I play a game with Akron with default rosters, I still will not know a single player's name. I'd love to put Keller on the stand, read off the number, weight, height, home town, etc. of the third-string LG on Idaho, and have him tell me who this player is.

Jordan Johnson!

# 43 gator3guy @ 07/13/10 02:39 AM

The NCAA is the biggest crook there is. I know this is between Keller and EA, but if the NCAA allowed player's likenesses to be used in anything there wouldn't be a case. The NCAA makes more money than anyone. And to all those who say "the player's get a free education," well that's true for most football/basketball players, but I play Divison I baseball and we have to split 11 scholarships between the 25-30 of us. I and the rest of my teammates have a partial scholarship, yet the NCAA still makes their money. And to NHL fans out their, they are including the CHL which is all amateurs. And guess what, they can use their NAMES AND LIKENESS. It's the NCAA that's the problem.

# 44 ODogg @ 07/13/10 10:10 AM

Yeah the NCAA is so awful, making money while giving out free housing and education to students who in many cases otherwise wouldn't be able to even sniff a college education. They're just monsters.

# 45 gogators @ 07/13/10 10:15 AM

Quote:

Originally Posted by ODogg


	Yeah the NCAA is so awful, making money while giving out free housing and education to students who in many cases otherwise wouldn't be able to even sniff a college education. They're just monsters.

Exactly! Given a free education and not having to pay back anywhere from an average of $20,000-$40,000 is enough.

# 46 gator3guy @ 07/13/10 12:15 PM

Quote:

Originally Posted by ODogg


	Yeah the NCAA is so awful, making money while giving out free housing and education to students who in many cases otherwise wouldn't be able to even sniff a college education. They're just monsters.

you didn't even bother to read my post i see

# 47 huskerwr38 @ 07/13/10 12:18 PM

Quote:

Originally Posted by ODogg


	Yeah the NCAA is so awful, making money while giving out free housing and education to students who in many cases otherwise wouldn't be able to even sniff a college education. They're just monsters.

NCAA doesn't give out scholarships, the schools do. It doesn't come out of their pockets, it comes out of the school's pocket. NCAA is the biggest hypocrites of them all, they say "nobody else can make money off of these players except us!" Everyone knows that they make millions upon millions off of collegiate athletes.

Not to mention, most players have to pay their way through college. Also, most Division III schools don't allow full scholarships to be given, and who knows why. They have rules that make absolutely no sense.

# 48 gator3guy @ 07/13/10 12:27 PM

Quote:

Originally Posted by huskerwr38


	NCAA doesn't give out scholarships, the schools do. It doesn't come out of their pockets, it comes out of the school's pocket. NCAA is the biggest hypocrites of them all, they say "nobody else can make money off of these players except us!" Everyone knows that they make millions upon millions off of collegiate athletes. Not to mention, most players have to pay their way through college. Also, most Division III schools don't allow full scholarships to be given, and who knows why. They have rules that make absolutely no sense.

Thank you and as far as i know, DIII doesn't give out scholarships at all.

# 49 ODogg @ 07/13/10 02:40 PM

gator3guy - i read your post completely.

# 50 gator3guy @ 07/13/10 02:44 PM

Quote:

Originally Posted by ODogg


	gator3guy - i read your post completely.

Not every student athlete gets a free education. In fact most have to pay out of pocket of some sort. And those scholarships are earned not given.

# 51 MaizeHaze @ 07/13/10 09:23 PM

How much $$$ is he hoping to get out of this?

# 52 ODogg @ 07/14/10 09:53 AM

I realize not every student athlete gets a free education and not even all of them get a full scholarship. I also never said they were given anything. If I did then I apologize as I didn't mean it that way. Of course I realize there is a great amount of work involved in the athletes getting them as well. All I'm saying is that I don't believe student athletes should be paid like they are professional athletes.

# 53 rbertels @ 07/14/10 05:21 PM

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.

# 54 rbertels @ 07/14/10 05:31 PM

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.

# 55 ODogg @ 07/14/10 05:32 PM

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.

# 56 ODogg @ 07/14/10 05:34 PM

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.

# 57 WinkW @ 07/14/10 05:37 PM

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.

# 58 rbertels @ 07/14/10 05:46 PM

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.

# 59 ODogg @ 07/14/10 05:47 PM

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.

# 60 rbertels @ 07/14/10 05:50 PM

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 $$.

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