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Federal Lawsuit Filed Against NCAA and Electronic Arts (EA Sports)

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In previous threads, I have posted pictures from a couple of the NCAA licensed basketball video games for the XBox 360, in which, arguably, UAlbany's (as well as all the other schools') players and coaches are represented. The fans and gamers very much enjoy this.


I have always been perplexed as to why it has taken this long for someone to sue the NCAA and EA Sports over this. This week, Nebraska quarterback Sam Keller (#9) filed a Class Action Complaint in the United States District Court for the Northern District of California. Samuel Michael keller v. Electronic Arts, Inc., National Collegiate Athletics Assoc., Collegiate Licensing Company, No. 09-1967-cv.


The link to the Complaint is at the bottom of the first article set forth below. In that Complaint, which is based on diversity jurisdiction (personal jurisdiction over EA Games in the Northern District of CA exists, according to Keller, by virtue of EA's headquarters being located in Redwood City, CA), Keller identifies several game franchises allegedly responsible for the conduct claimed in the Complaint: NCAA Football, NCAA Basketball, and NCAA March Madness.


Two of these franchises involve UAlbany and its players and coaches (the basketball franchises). While NCAA Football 2009 includes many teams that belong to what was formerly called NCAA Division I-AA, not all "AA" schools are in the game (UAlbany is not in the game), and the AA schools are only in the Playstation 2 version of the game (not sure about the PS3 version).


College Athletes Finally Sue Electronic Arts/NCAA for Misappropriation of their Likenesses


Sam Keller Takes on the 'Man': Files suit against the NCAA, video game empire


Ex-NCAA Quarterback Sues Electronic Arts Over Games



I must admit, the Complaint is kinda cool. I've never seen sports video game pictures embedded within a legal complaint before. :)

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. . . In the Complaint, pictures (examples) are given showing Jake Long, formerly of the Michigan Wolverines, and Kent State's Eugene Jarvis. The Complaint points out that the video game's #6 on Kent State is obviously Jarvis because of his unusual short height at 5'5" (and only 170 pounds). The Complaint expounds that this is not just "coincidence."


Other players given as examples in the Complaint are Georgetown's Roy Hibbert, Texas Tech's Michael Crabtree, Kansas State's Josh Freeman (QB), Ohio State linebacker James Laurinaitis (and perhaps others), and, of course, Sam Keller of Nebraska.


The Complaint defines the putative class as:


"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." Paragraph 58.


Notably, "[e]xcluded from the class are Defendants, their employees, co-conspirtators, officers . . . [blah blah blah]. Also excluded from the class are the limited number of players whose assigned jersey number appears in the game, but the virtual players' height is not within one inch of the player's roster height and the virtual player's weight is not within 10% of the player's weight." Paragraph 59 (emphasis supplied).


The Complaint continues to set forth the common questions of law and fact specific to the class members, etc., as per Federal Rule of Civil Procedure 23.


The Complaint lists a total of SEVEN causes of action:

1. Deprivation of Rights of Publicity, Violation of Indiana Code s. 32-36-1-1 (as against the NCAA).

2. Deprivation of Rights of Publicity, Violation of California Civil Code s. 3344 (as against Electronic Arts)

3. Violation of Rights of Publicity (Ca. Common Law) (as against Electronic Arts)

4. Civil Conspiracy (as against all defendants)

5. Violation of the Unfair Competition Act, California Business & Professions Code, s. 17200 et seq. (as against Electronic Arts)

6. Breach of Contract (as against the NCAA)

7. Unjust Enrichment (as against Electronic Arts and CLC)



Finally, the Complaint seeks relief in the form of certification of the action as a class action, appointment of class counsel (pro forma requests in such actions), a declaration that defendants' conduct "constituted a conspiracy," actual damages, statutory damages, punitive damages, disgorgement of all profits earned by defendants from the sale of video games containing the likenesses of plaintiff and class members, prejudgment and post-judgment interest on such monetary relief (pro forma request here; this is often automatic per state statute), equitable relief in enjoining future use of the names or likenesses of plaintiff class members in video games, and decarling null, void and/or unenforceable any contractual provisions or NCAA rules purporting to limit the right of Plaintiff and class members to receive compensation for their injuries. See Complaint, Prayer For Relief, Paragraphs A--F.

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This action, if certified as a class action, will absolutely encompass UAlbany's current basketball players, as well as previous players going back as long as the NCAA Basketball video game franchise has been putting the "likenesses" in the game. I have the 2007 version of the game, which includes all of, or most of, our 2006 players; i.e., Jamar Wilson and those guys.




As far as I'm concerned, and this is just for fun, the Complaint could have been drafted better.


For now, certain defendants equally as culpable (arguably) are not in this action. Namely, 2K Sports. Of course, Keller doesn't have (Article III) standing to bring an action against 2K Sports because 2K Sports only produces basketball video games, and Keller is a football player. Stay tuned for a hoopster out there to bring the same type of lawsuit against 2K Sports for its basketball series. In any event, I would have tried to get more class representative plaintiffs and include 2K Sports in the suit. Oh well ... .


As to the 2K basketball games, a future complaint should stress the point about the name-database in the game containing all the real players' names and the fact that the announcers in that game knowing EXACTLY how to correctly pronounce players' names (i.e., Iati).

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IMHO, and this is just my for-fun, recreational, non-legal $.02, I think EA should settle, because they could very well get blasted by this suit. It's SO obvious to every kid in America (including the players) that the real athletes were being used in these games (with the only variation often being name only), that EA would probably rather settle than have what will likely be intentional and explicit directives revealed via the discovery process (i.e., internal e-mails and everything else).


Even the non-gamers and old timers on this thread can look back at the previous threads in which I've posted pictures from the games and realize that the real-life players of nearly all Division I-A programs were being used in the games.

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While I think that the players have every right to sue, I'm selfishly hoping that this doesn't mess up the college sports games. I can't get enough of them.



Haha, same here! If I'm left with only NBA video games to play, I might have to find a new hobby. :mellow:

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