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EA Sports College Football to Return — but Without Athletes’ Likenesses

EA Sports vice president and general manager Daryl Holt plans to develop another college football video game, ending EA’s 8-year hiatus from the gridiron, as first reported by ESPN.

After the release of EA’s 2013 NCAA Football game, EA and the NCAA were sued by the very athletes used in the game. This legal battle culminated in a $40 million settlement in favor of the athletes who, although they were the stars of the game, were not being compensated: EA could not pay NCAA athletes for using their names, images, or likenesses (NILs) because the NCAA’s rules prohibit all athletes from being compensated for their NILs.

Despite the fact that (a) many college athletes want to be compensated for their NILs and (b) market research shows that gamers want the real athletes to appear as players in the game, the NCAA continues to stand in the way of an EA Sports game that would satisfy both the audience and the talent due to its rules.

It comes as no surprise that, this time around, the EA Sports college football game will be developed without the inclusion of any NCAA athletes. While this could be viewed as a way for EA to avoid any additional friction around the issue, the timing should not go unnoticed. Several states have already passed legislation voiding the NCAA rule that strips so many athletes of their rights to their NILs, the announcement of an upcoming EA Sports college football game could be an effort to push proposed federal bills through Congress.

“My belief is EA’s announcement is far more of an attempt to push forward name, image and likeness legislation and NCAA action than it is to actually sell a game without the actual players,” said Attorney Eugene “Gene” Egdorf, a Shrader & Associates, L.L.P. lawyer who was instrumental in obtaining the 2014 settlement in favor of the athletes. “If such a game had legitimate financial viability, that game would have been on the market for the last 7 years.”

Nil Power over Their NIL Rights

Even prior to the 2014 settlement, various university chancellors and presidents were publicly outspoken about the mess the NCAA had created for itself with the NIL rule. According to ESPN, former University of Michigan president James Duderstadt wrote:

(In) a sense, the NCAA's objective is to preserve the brand so that it provides revenue primarily for a small number of people who get very, very rich on the exploitation of young students who really lose opportunities for their futures. ... And that’s what’s corrupt about it. The regulations are designed to protect the brand, to protect the playing level and keep it exciting, not to protect the athletes.

Many college sports fans, college athletes and even people who have no other real opinions about college sports have the same view on the matter. This is evidenced by the current legislation traveling through Congress.

In December, Sen. Cory Booker (D-NJ) and Richard Blumenthal (D-CT) introduced the “College Athletes Bill of Rights,” one of the most athlete-friendly pieces of legislation in terms of NIL rights. Now, an even more comprehensive bill has been proposed by Sen. Chris Murphy (D-CT), “The College Athlete Economic Freedom Act,” which would allow athletes to be treated as employees, giving them rights to their NILs and to unionize.

The future of NCAA athletes’ NIL rights may be hazy, but there is no doubt that some change will have to happen. That is, unless the association wants to be hit with another lawsuit over an EA Sports game.

Another Game, Another Potential Lawsuit

Although the upcoming EA Sports game will not have any real-life rosters or NILs of any athletes, if NCAA rules do not change, gamers can easily upload the NILs of their favorite athletes into the game. According to Attorney Egdorf, it does not matter where gamers download this information from, what matters is whether EA will allow and encourage it.

“If EA does unexpectedly put out the generic game knowing that downloads are out there, and possibly encouraging them, expect litigation against both the roster posters and EA for allowing the players’ likenesses to be usurped,” Attorney Egdorf said.

Let’s be clear, the athletes are the primary draw of the game. As Attorney Egdorf explained, “Market research unsurprisingly shows users want the real players,” not a generic virtual football game. The movement for college athletes’ rights is, no doubt, gaining momentum — and EA Sports is only building on it.

About Attorney Eugene Egdorf

At Shrader & Associates, L.L.P., Attorney Eugene “Gene” Egdorf represents clients in commercial and complex litigation. He has advocated for athletes who have suffered concussions and other game-related injuries, as well as worked on cases involving antitrust issues and breaches of contract, among other legal matters. Attorney Egdorf has become one of the most well-known sports lawyers in the U.S. and is often requested for comment on sports legal issues by the media.

To get in touch with Attorney Egdorf, contact Shrader & Associates, L.L.P. online today.