EA Sports Sued by a Desperate NCAA Over the Game it Endorsed and Made

Back in the summer, the NCAA piously announced it would no longer license video games, leaving it to members to decide whether they would continue to appear in EA Sports’ college football series. The schools’ biggest licensing agent and Electronic Arts chose to settle all claims brought by college players, leaving the NCAA as the only defendant. Naturally, the NCAA is now suing EA.

Whatever gamers think of EA Sports, vastly more people think vastly less of the NCAA, because of chickenshit legal ass-covering like this on one end and the high-handed enforcement of blitheringly stupid eligibility rules at the other, with the entire enterprise funded by contracts sold to televise ostensibly free performances. Now, after 15 years of being paid millions in pure profit just for putting its name and logo on a game—nothing more—the NCAA alleges that EA Sports and the Collegiate Licensing Company dealt them dirt in making that grubby grubby videogame whose wink-and-nod treatment of real-life players—in a game the NCAA endorses on its cover—now threatens the entire plantation.

Why, the NCAA exclaims, we were unaware of what EA Sports and the CLC—the NCAA’s own licensing agent—were really up to with this game. The suit the NCAA filed this week seeks to stop the $40 million settlement that EA will pay, per figures it provided to investors last month, to past and present college players who allege their likenesses were used without permission in the publisher’s NCAA Football and NCAA Basketball series.

Moreover, if the NCAA—which has vowed to fight this thing all the way to the Supreme Court—is found liable for players’ appearances in those games, its suit demands that Electronic Arts foot the bill for damages and legal fees.

News of the lawsuitwas reported by USA Today on Wednesday. An Electronic Arts spokesman declined to comment to the newspaper, as did the NCAA. The CLC said it was “caught in the middle of a dispute between NCAA and EA which should not involve us.”

College athletes are prohibited, under NCAA amateurism rules, from endorsing any product, which is why a hallmark of college sports video games—made by 2K Sports, too, until 2008—is rosters full of players named QB#02 and WR#89, players who mimic a team’s real-life performers in nearly every facet while stripping out their real name. Users then collectively rename the game’s entire roster, whose sharing online is facilitated by the game itself.

What the NCAA alleges, basically, is that the CLC was the supervisor in all this, and was asleep at the switch as EA Sports steered the series and the NCAA into this oblivion of legal exposure. That is bullshit on its face. In 2003, the NCAA’s Director of Corporate Alliances himself, a man named Peter Davis, inquired of EA Sports whether it used current players names in its games. The reply: “We don’t actually use player names but we do use all the attributes and jersey numbers of the players.”

So the NCAA itself—not through an intermediary—knew for at least a decade what the practice was that got this series and the organization in such hot water. Moreover, a vice president of the NCAA argued in 2007 that the NCAA should adopt rules that permitted the use of real players’ names in EA Sports’ video games. Again, that’s a corporate officer of the NCAA. This guy acknowledged that player likenesses were effectively already being used but “it’s just that our membership doesn’t benefit from it.” Because that’s the most important thing in the NCAA, whether the membership benefits, not the “student-athletes” in their employ.

The rest of the NCAA’s claim says Electronic Arts did not maintain adequate liability insurance in the making of this product, and that it was required to indemnify the NCAA—that’s a fancy legal term for take all of the blame if something goes wrong.

What’s wrong here is the NCAA and a big business it created whose rules are entirely at odds with a modern, connected society saturated by entertainment products, memorabilia, and broadcasts of college football games on every day of the week. Electronic Arts, I have said repeatedly, played according to the NCAA’s rules in this. The idea it was singularly responsible for screwing players out of money for their likeness, or colluded with either the NCAA or the CLC to do so, is ridiculous.

The settlement EA has proposed amounts to a per-player payout of roughly $300—which is far less than the value of the swag bags players get for appearing in the Poulan-Weedeater Piece of Shit Bowl brought to you by Capital Whatever three days after Christmas. EA Sports has proposed a $40 million payout for the lifespan of its two college sports series; in 2011, it paid $30 million to the NFL Players Association for one edition of Madden NFL.

EA Sports could cut a $300 check annually to every college player on 125 teams with change from the couch cushions in Redwood Shores, and reap a fortune in sales. It wanted real players in this game, and argued for that vehemently. The NCAA denied it, holding fast to the idea that college football is still some quaint extra-curricular activity, and it will nobly bear the responsibility of pocketing and managing that sinful money in this complicated grownup business, rather than have a single dirty dollar corrupt these virginal “student-athletes.”

The NCAA could have taken a more progressive posture; it could have compensated—equally and at a pittance—college football players who meaningfully appear in video games, as well as highlight DVDs and in three-hour advertisements for credit card companies and steakhouse chains during the holiday season. But one dollar was a bridge too far. That meant the death of the NCAA Football series. Let it mean the death—the uglier and less dignified, the better—of the NCAA, too.

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