A lawsuit filed on May 5 in federal district court in Northern California by a former college football quarterback is the latest extension of a series of cases that have defined who "owns" sports statistics, facts and personal image rights.
While it has traditionally been the case that every person can ultimately control who makes money off of his or her name and "image" — with that right getting stronger if the person in question has some commercial value in that personal image — recent years have seen a shifting of the balance between this personal "publicity right" and the First Amendment right to use facts and information. Just one week ago, the NFL became the third major professional sports league to be told that it does not have exclusive control of statistical and other information about its games and about its players — so it’s probably fourth and long for our erstwhile collegian in this struggle for control of potentially profitable information.
Sam Keller played quarterback for three years at Arizona State before transferring and playing his final season at Nebraska. Despite a moderately successful college career, he wasn’t drafted by an NFL team.
Keller is the named plaintiff in a class action lawsuit filed against Electronic Arts, a/k/a "EA Sports" ("It’s in the Game"), the maker of the popular college football video game series "NCAA Football [insert year here]". Other defendants include the NCAA and the Collegiate Licensing Company, which administers the contracts regarding college athlete likenesses. According to his complaint, Not-So-Slingin’ Sammy represents "all NCAA football and basketball players listed on the official opening-day roster of a school whose team was included in any interactive software produced by Electronic Arts, and whose assigned jersey number appears on a virtual player in the software."
Now I really don’t follow college football all that closely (the dual result of attending a college without a truly big-time football program and the NCAA’s refusal to dump the bogus BCS system in favor of a college football playoff leading to a true national champion). I’m also not all that into video games; even though EA’s line of "NCAA Football [insert year here]" is insanely popular, I can’t say that I’ve ever played one.
So it’s a good thing that the folks at the Above The Law blog (I do follow them) do a good recitation of the NCAA policies and video game characteristics, which I’ll further boil down to about four key points:
- College athletes are basically indentured servants, with major football and basketball programs generating substantial revenue for their schools in exchange for the athlete receiving a free education (that he/she largely can’t take advantage of because of team practice, conditioning and related activities requiring a time commitment similar to that of a pro athlete).
- Similar pro football and basketball video games (think about the highly successful "Madden" and "NBA Live" games here), use the real names, uniforms, numbers, likenesses (which get increasingly more real — and scary — with every new version), statistics and backgrounds. The game makers had previously used fake names and players until an agreement was reached with each league’s players association for the image rights.
- No similar agreement exists between the NCAA (through the Collegiate Licensing Company) and Electronic Arts, so fake names continue to be used in the college-based video games. The uniforms look real (so the JMU Dukes, if the Football Championship Subdivision powerhouse is represented, will be identified by its ever-intimidating Purple-and-Gold), and the virtual players’ statistical characteristics correspond to their real life counterparts. In Keller’s case, that meant the NCAA Football ’08 version of the Nebraska Cornhuskers wore red and white and featured a quarterback wearing # 9 who threw for 2,422 years and 14 touchdowns, while completing 63.1 percent of his passes, strikingly similar — indeed, identical, to his own personal stats.
- Die-hard fans have created programs that allow users of this game to upload the true names of each player to replace the fake ones. EA Sports knows about this, but does not promote it. Both EA and the NCAA have maintained that EA sports does not and cannot use the players’ names or actual pictures.
The post in Above the Law suggests that Keller should win, but does it unduly discount an interesting decision from federal district court in Minnesota that was issued on April 28, 2009, involving the use of NFL player names, likeness and information in conjunction with CBS Interactive’s fantasy football games?
Granted, there are some major differences between the recently-decided Minnesota case and the case which Keller brought in California: aside from the fact that we’re now talking pro sports rather than college, the recent Minnesota decision affected the use of player information and licenses in the fantasy sports, not video game, context. And pro sports leagues have a bad history in this area:
- It’s been more than ten years since United States Court of Appeals held that the National Basketball Association could not prevent a company called Stats, Inc. from distributing statistics and other in-game information in real time via Motorola pagers.
- A little over two years ago, in a case we blogged about, the United States Court of Appeals for the Eighth Circuit ruled against the Major League Baseball Players Association and declared that pro baseball players’ names and likenesses could be freely used in a fantasy baseball game.
The NFL decision is a direct descendant of the more recent MLB case. CBS Interactive runs one of the more popular fantasy football games, which makes extensive use of NFL player names, likenesses, pictures, photographs, voices, and biographical information. Through the 2007 NFL season, the player information was obtained via a licensing agreement with the NFL Player’s Association that controls the image rights of the players and distributes any revenues obtained through such games to them.
After the 2007 season, CBS Interactive took note of the decision against the MLB in the 8th Circuit. It did not renew its licensing agreement with the NFL and instead sprinted to the District Court of Minnesota. You see, the District of Minnesota is located in…the 8th Circuit. CBS Interactive sought a declaratory judgment from the court that would apply the MLB ruling to NFL player information as well. This kicked off the case of CBS Interactive, Inc. v. National Football League Players Association, Inc. and National Football League Players Incorporated.
After a brief — but very informative — recitation of how image rights of NFL players were previously licensed and how fantasy football is played, District Court Judge Ann Montgomery spent the majority of the first half of her opinion knocking down, one by one, motions by the NFL/NFLPA to either dismiss the case for lack of personal jurisdiction in MInnesota or transfer the case to Florida (where the only other case involving a similar sports image rights issue was decided the other way).
Compressing all of this Civil Procedure 101 stuff into an ESPN "Two Minute Drill" highlight reel cuts to the chase: the Court ruled that there is personal jurisdiction over the NFL/NFLPA in Minnesota and the transfer was not proper because there was no proof that hearing the case in Minnesota would be inconvenient for the parties, to witnesses or contrary to the interests of justice. At least no more so than Florida.
As is often the case, all that procedural posturing proved dispositive. The NFL/NFLPA made a brief goal line stand, getting one of CBS Interactive’s causes of action dismissed when the judge ruled that the NFL/NFLPA’s control over player image rights do not constitute an antitrust violation. The next play was the winning touchdown, as the court granted summary judgment in favor of CBS Interactive, finding little to no difference between this case and the MLB case.
So is that it? Game over for the NFL/NFLPA? Well, the NFL/NFLPA still has two levels of court to which to appeal, though their prospects seem unlikely given the 8th Circuit’s ruling in the MLB case and the Supreme Court’s later refusal to hear that case.
As for Keller, he’s still got a chance. It’s pretty clear by now that the use of statistics and other game-related facts are protected by the First Amendment, at least with regard to professional sports (though we see no reason why there would be any difference here just because the statistics come from college games). For Keller to win, the Court will have to find that: (a) video games are inherently more commercial than the now multi-million dollar fantasy sports industry and (b) that EA Sports has made its games "too real" to the point where using this First Amendment protected background information in conjunction with wink-wink, nudge-nudge virtual players makes it all but impossible to separate those virtual players from the real ones.
And if he doesn’t win? Well, there’s always the NHL, MLS (yes, fantasy soccer does exist) and NASCAR (perhaps the biggest one of them all), waiting in the wings. But, more importantly, it opens up another avenue for broadcasters, print media, bloggers, etc. to more freely (and accurately) use player information and even photos in conjunction with sports reporting and perhaps even some overtly promotional contest-type events.