For years college athletes have been making the argument that they should have the ability to earn money throughout their college athletic experience. Despite their efforts, the NCAA maintained strict rules that did not allow college athletes to receive any money whatsoever as a result of their athletic performance. Even though college athletes regularly appeared in commercials, help brand names market new products, and watched as their schools sold millions of dollars’ worth of jerseys using their last names, the athletes did not see a cent for their contributions. This would eventually change due to the popularity of a widely recognized video game.

The Foundational Court Case

For almost a decade, NCAA partnered with different video game companies to create and sell numerous video games based on various collegiate sports. One of the most famous college sports video games in the world was NCAA College Football. Electronic Arts, or better known as EA Sports, created and launched their first video game partnered with the NCAA in 1998. Video games were widely successful due to their realistic nature and creative game experience. EA created avatars that replicated actual college football players but used randomly generated names to avoid any legal action. EA used real player attributes such as a player’s jersey number, skin tone, hair color, height, weight, and home state to replicate the most famous players at the time.

A new edition came out each year with updated players and team rosters. EA decided that a good way to market their video games was to put the most dominant and well-known college football players of the past year on the cover of their next year’s edition. Some of these famous game covers included pictures of Larry Fitzgerald, Reggie Bush, DeSean Jackson, and Tim Tebow. While the video game’s sales continued to soar year after year, the players being used in the game did not see any compensation whatsoever. Many legal challenges came and went without the players seeing any results – until that all changed in 2013.

In 2013, the United States Court of Appeals for the Ninth Circuit heard a case that would change the future of the NCAA. In Re NCAA Student-Athlete Name and Likeness Licensing Litigation was a case that was brought by a college football player by the name of Sam Keller. Keller was a well-known college football quarterback who played for Arizona State and Nebraska. His attributes were used to create an avatar in the NCAA college football video game. He sued EA stating that the company violated his right of publicity.

The Court made multiple rulings that would impact the future of college sports. It found that “a work does not violate a person’s right of publicity if the work adds significant creative elements sufficient to transform the work into something more than a mere celebrity likeness or imitation.” The Court then applied a multi-factor balancing test to determine if EA had sufficiently transformed their video game avatars to be more than a mere imitation of the real athletes. Based on this balancing test, the Court held that EA did not sufficiently transform the avatars, and instead, merely recreated the real players. This gave Keller, and other college athletes used in the video game, a legal cause of action against EA and other similar entities. NCAA and EA stopped making their infamous college football video game in 2014 as a result of this litigation.

The Impact on College Sports

This massive legal achievement for college athletes proved to be just the beginning of a new chapter for college sports. After the Court’s ruling, college athletes all over the country pushed to expand the legal basis for profiting off their own name, image, and likeness. California joined the fight in 2019 when it enacted the Fair Pay to Play Act, which allows student-athletes to make endorsement deals with companies of their choosing. Shortly thereafter, the NCAA voted to change their strict bylaws to allow student-athletes to profit from their own name, image, and likeness.

Since the NCAA changed its bylaws, more and more college athletes have been able to make money during their years playing college sports. While some big names have been able to sign endorsement deals with nationally known brands, such as Buffalo Wild Wings, others have been partnering up with local businesses like law firms and car dealerships.

Many critics of the changed laws cite lucrative colleges having the ability to now “buy” high school recruits to come to their schools. Some are afraid that schools with a wealthier alumni and booster community will be able to persuade the nation’s top high school players to commit to their schools solely for monetary reasons. Other say this has been the case for years and making it legal will even out the playing field.

It is currently uncertain how the “Name, Image, and Likeness” (NIL) changes will conflict with other university actions such as scholarships or transfers, but one thing is certain – college athletes are not being taken advantage of as much as they were before. It is also worth noting that the NCAA and EA have signed a new deal and plan to create a new college football video game to be released in the next year or so.

Contact Coffman Law

If you or anyone you know has further questions about their legal rights under the current NIL rules/bylaws or need legal representation please feel free to contact our Managing Partner Brian W. Coffman at (312) 888-5757 who played college sports and has intimate knowledge negotiating contracts and representing athletes in all sports.