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Blame the NCAA, not Ed O’Bannon

EA Sports stopped making NCAA Football because the NCAA is scared of athletes getting paid.

Photo by Mike Lawrie/Getty Images. Banner Society illustration.

Years have passed since the last release of an NCAA Football video game. The end of production (at least for now) of EA Sports’ beloved franchise came as Ed O’Bannon, a former UCLA basketball player, was on the way to winning a class-action lawsuit against the NCAA in 2014, along with other legal battles in 2013.

O’Bannon argued, and the courts agreed, that the NCAA not paying athletes for the use of their likenesses was a violation of federal antitrust law. The NCAA Football games used players’ likenesses, but NCAA rules kept EA from naming players or paying them.

A judge’s ruling gave schools the option to set up trusts to pay football and basketball players after their college careers were over, and it prevented the NCAA from banning full cost-of-attendance scholarships. But it didn’t actually require schools to pay players anything they already weren’t, for the video game or anything else.

Sports fans and gamers often blame O’Bannon for the loss of the game.

He wrote in his 2018 book that one of the most common bits of feedback he heard from people about his case was, “Dude, you’re messing up the video games!”

That is a common sentiment. Some of the most prominent people in college sports have shared it, including ESPN analyst Kirk Herbstreit, who said in 2016 that O’Bannon “ruined that for all of us” and “took that game away from us.”

Hold up, though. It wasn’t O’Bannon’s idea to create a game that illegally used people’s images.

After the O’Bannon case (and even before it went to trial), everyone was cool with the game continuing — except the NCAA.

EA said in a court filing it was fine paying players for their inclusion. The company is known for paying out the ears to license the most realistic components of its sports games. It recently bought the rights to the Champions League for FIFA 19 for an undisclosed, but surely huge, amount, even though gamers were previously able to play with an identically formatted “Champions Cup.”

“Consider EA’s slogan for its sports video games,” O’Bannon wrote. “‘It’s in the game.’ Why is that? Because the most realistic games are the kinds of games that sell the best.”

College games were a bit different than pro games, in that real-life players weren’t quite as important. But still, imagine a version of Madden without real players. Sales would nosedive, so EA wants to use the most lifelike players it legally can.

The NCAA was always the obstacle, because it saw the O’Bannon case as a threat to its entire amateurism model.

The NCAA’s top lawyer, Donald Remy, made that clear when the NCAA announced it was settling a class-action video game case brought by players in ‘14 (emphasis added):

The plaintiffs in the O’Bannon lawsuit are not seeking monetary damages. Instead, they are asking the judge in the case to prevent the NCAA from enforcing its rules so future Division I football and men’s basketball student-athletes can receive compensation during their time in college for group licensing of their names, images, or likenesses. The plaintiffs claim that such compensation should include payment for their appearance in games that are broadcast live. As a result, in addition to challenging the NCAA rules, the plaintiffs are seeking to erode copyright law and First Amendment protections afforded to those games and broadcasts.

O’Bannon made the NCAA worry that if it sanctioned video games and let players get paid for being in them, it would open the door to athletes getting paid for other stuff.

If the NCAA would let players and EA negotiate over licensing, they would. Then the schools could make their own deals as usual, and the game could return. We’d all have more fun, and everyone involved would make money.

As O’Bannon said in his book:

It’s also worth noting that we never asked EA to stop making college sports games. Just the opposite, actually — we love EA Sports college games and wish EA still made them. All we asked for is that EA pursue what it really wanted to do: negotiate with us to use our identities.

So, no, my lawsuit hasn’t stopped EA from publishing college sports video games. EA is simply afraid of the NCAA, which could decide not to allow the licensing of team and university intellectual property. If the NCAA told EA it could pay college athletes without retribution by the NCAA, we would see these college games. It’s really that simple.

O’Bannon’s lawyers said the same thing around the time EA stopped making the game.

If the NCAA got out of the way, the players and EA would both make money. The game-makers are ready to dive back in. But the NCAA thinks letting players get paid for their likenesses would hurt the legal case against letting athletes be paid at all.

The NCAA still hasn’t budged on letting players be paid for their likenesses. Were that to happen, the game could return.

Blaming O’Bannon for the end of the game is, for all these reasons, silly.

If someone gets robbed and then sues the burglar, it’s not the fault of guy who got robbed when the burglar refuses to just pay for stuff instead.