1376515779000-c01-EA-sports-18What’s an NCAA player worth these days for appearing in a video game? About $1000 each.

That’s the approximate amount players will receive in the $40M dollar class action settlement against Electronic Arts (“EA Sports”). The video game publishers behind the popular NCAA Football and Basketball/March Madness series games, which ran from 2003 to 2013, violated intellectual property law by misappropriating the likeness of college players without compensation and in violation of collegiate sports rules. If approved, the settlement will mark the first time in history that a commercial partners of the NCAA have ever paid collegiate athletes.

Intellectual Property Fumble: Misappropriation of Likeness and Violation of NCAA Rules

EA Sports published the games through a licensing agreement with the NCAA. Amateurism rules of the NCAA prohibited EA Sports for featuring individual athletes in the game, which required the publisher to merely suggest that players featured in the game were the same collegiate players taking the field for a given year. According to video game website, Polygon:

EA Sports got around this by listing players by an abbreviated position and their uniform numeral, with nearly all other traits — including height, weight, skin color and ability level — conforming to a real person. The NCAA was told directly by EA Sports of this practice back in 2003. Later in the football and basketball series, EA Sports also supplied the means to share edited rosters, and the player community often would edit real names into the entire roster within days after the game’s launch.

EA Sports requested specific permission to use player likeness in their games back in 2007, including the right to use player names and facial features as well as team rosters.  EA pointed out that the NCAA and individual schools earn millions of dollars per year granting rights to television partners to use player likeness in broadcasts. EA contended that use of player likeness in a video game is the same as using it for television broadcast. The NCAA and plaintiffs in the current lawsuit disagreed, saying the use of likeness in a video game “pales in comparison to the use of player likeness in televised games.”

The legal distinction between a video game and televised broadcast remains to be seen, but the payout from this settlement will force the NCAA to ask some serious questions about their licensing policies and amateur player compensation. The organization has already criticized the plaintiffs and especially the lawyers involved in the present case. It is estimated the lawyers stand to make $15M from the settlement.