June 2, 2014 Update:
On Friday, EA Sports and the Collegiate Licensing Company settled three class-action suits brought by thousands of former NCAA athletes for $40 million. The suits claimed that EA was using their likeness without compensation. The settlement comes as Ed O'Bannon v. The NCAA, the antitrust suit filed against the NCAA, is set to begin next week.
In September, America Tonight profiled Sam Keller, the former college quarterback at the heart of the EA case and a separate right-of-publicity suit against the NCAA, which is set to begin in March 2015. Tune into the report this evening at 9 ET/6 PT.
Sam Keller’s dream of playing in the National Football League fell short. Instead, he now works in a restaurant-bar in Scottsdale, Ariz., and is the offensive coordinator for the city’s Saguaro High School football team. But the former quarterback still may be a game-changer.
Keller, 29, is the original plaintiff in a federal lawsuit claiming the NCAA and its marketing arm, Collegiate Licensing Company, has for years illegally allowed EA Sports to use college players’ likenesses and physical attributes in the popular NCAA Football video game. Eight other former college football and basketball players (EA Sports also produced an NCAA Basketball game) have since joined Keller’s lawsuit. Keller’s attorneys have asked a federal judge to this a class action, which would include all college players during the years EA Sports produced the football and basketball games.
“They had everybody pretty much nailed down to a T,” Keller told America Tonight.
EA Sports has reportedly sold 23 million copies of NCAA Football, bringing in revenues of $900 million. Individual schools receive royalties from the game based on a complex formula, with some schools said to be receiving more than $100,000 per year.
An avatar with Keller’s number, height, weight and other characteristics appeared in the game each year he played, but the former Arizona State and Nebraska quarterback never received any royalties. He didn’t even get a free copy.
“You couldn’t receive compensation as a college athlete, otherwise you’d get in trouble,” Keller said.
At the time, Keller said he enjoyed the small measure of celebrity the game brought. He and his teammates would play the video game in the locker room. But when his playing days ended, Keller said he started to think about the money pouring into college football.
“It’s very much driven on money, and as a college football player you don’t see that,” said Keller, who filed suit in 2009. “You are what drives the money but your job is to not buy into all that. Your job is your responsibility to your teammates, your coaches and your school.”
Leonard Aragon, Keller’s attorney, said the case boils down to theft.
“They’re having their property stolen,” Aragon said.” The right of publicity is a property right. The right to do what you want with your name, image or likeness is your right. And just because you get a scholarship you don’t given away that right.”
Michael McCann, a law professor and director of the University of New Hampshire Sports and Entertainment Law Institute, said that if the judge certifies the case as a class action, the NCAA will likely to settle the case, rather than go to trial.
“With a settlement, you have some control,” McCann said.
The NCAA declined to sit down for an interview with America Tonight.
On its website, the association announced it was ending its relationship with EA Sports when the contract expires next year.
“We are confident in our legal position regarding the use of our trademarks in video games,” the NCAA said in its statement. “But given the current business climate and costs of litigation, we determined participating in this game is not in the best interests of the NCAA.”
In court documents and on its website, the NCAA claims it never licensed the use of any player’s likeness in the video game.
Aragon said internal e-mails from the NCAA and the Collegiate Licensing Company show they were well aware the games’ avatars matched actual players.
“Everybody knows that they use the likenesses in the game,” he said.
Keller said he didn’t file the suit for the money. He only wants what’s fair for himself and the thousands of other athletes he says are depicted in the NCAA Football game.