BY:  EDWARD KEALY

As the NCAA’s revenues continue to skyrocket, the debate for returning some of that money to student-athletes becomes more heated.  And as the money keeps coming in, the NCAA finds new markets through which they can exploit the entertainment value of college sports into generating more revenue.

One of these markets includes video games.  In Keller v. Electronic Arts, Inc.,  Sam Keller, former quarterback of the Arizona State University and University of Nebraska football teams, brought suit against Electronic Arts, the NCAA, and the Collegiate Licensing Company for their use of his, and other college athletes, likeness without consent.[1]

Keller alleged that in the “EA Sports NCAA Football 10” video game the virtual football players are designed to resemble the real-life players including same jersey numbers, height, weight, home state and other physical characteristics.[2] The only thing missing from the information was the game did not include player names, however they could be downloaded off of the internet.[3] Keller claimed that the defendants used his likeness without his consent, and that in doing so, were violating the NCAA’s “duty to NCAA athletes to honor its own rules prohibiting the use of student likeness…”[4]

The NCAA Bylaws include language concerning the use of a college athlete’s name or picture.  Section 12.5.2.1(a) states that an individual will not be eligible to participate in college athletics if the individual “[a]ccepts any remuneration for or permits the use of his or her name or picture to advertise, recommend or promote directly the sale or use of a commercial product or service of any kind.”[5] Though the NCAA has maintained that it is not permissible for a company to use the names of student athletes with eligibility remaining in a sports video game, the Bylaws are silent on the use of a college athlete’s likeness in a video game.[6] Of course if they did put such language in their bylaws, it would prohibit them from exploiting these likenesses.

College athletes receive a number of benefits when they accept scholarships to play sports. These benefits include room and board, food, educational costs, and other benefits, amounting to significant amounts of money.   Many students don’t realize that when they are accepting these scholarships, they are committing to a binding contract.[7] These scholarships implicitly adopt the Bylaws, and it has been argued that as a result, college athletes contractually relinquish their right of publicity to play NCAA sports.[8]

There is a strong argument that the statutory right of publicity requirements are not met in this case, and that therefore the defendants will prevail.[9] Additionally, there seem to be strong First Amendment hurdles for the plaintiffs to prevail.[10] Nevertheless, the debate rages on.  As the NCAA continues to rake in revenue from different outlets ($594,527,482 in “Television and Marketing Rights Fees” in 2009)[11], people will continue to argue that the college athlete’s roll in business that is college athletics, is one that warrants compensation.

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