This past spring, former Arizona State and Nebraska quarterback Sam Keller filed a class action lawsuit against the NCAA and EA Sports.  In his complaint, Keller identified the class upon which he is suing on behalf of all college football and basketball players who are in EA Sports’ various games.  The complaint alleges a handful of different claims, including breach of contract, conspiracy, unjust enrichment and violating the athletes’ right of publicity. 

In his complaint, Keller argues that “Electronic Arts is not permitted to utilize player names and likenesses…[and that] Electronic Arts with the knowledge, participation and approval of the NCAA…extensively utilizes actual player names and likenesses.  The motivation of the Defendants is simple:  more money.”

Chiefly, the attorneys for Keller allege that EA Sports (the makers of a family of popular sports titles for a variety of game platforms) violated hundreds of athletes’ publicity rights.  Much debate has already taken place regarding protecting a professional athlete’s right of publicity; however far less discussion has been dedicated to protecting an amateur athlete’s rights in this regard. 

The right of publicity is a doctrine frequently used by athletes or celebrities in a lawsuit in situations where a party is somehow using the likeness of that famous person for profit.  As the argument goes, by making money off of that person’s likeness or image without his or her consent, the individual is thereby engaging in the misappropriation of that person’s commercial value in violation of the law.

Here Keller’s argument is obvious: the NCAA stole the publicity rights of all the money producing NCAA athletes en masse through the NCAA’s licensing arm, Collegiate Licensing Company, and group licensed their likeness to EA Sports for a substantial profit.  Thus, both the NCAA and EA Sports are reaping the benefits of college sports’ popularity while the actual athletes are getting left out of a multi-billion dollar industry. To illustrate this point, the lawsuit claims that in 2008 alone, EA Sports made three billion dollars and that the NCAA made over six hundred million dollars from licensing these athletes’ images.

This central argument is convincing in theory.  Players are being blatantly copied in these video game titles, and the realism exhibited is remarkably accurate at times.  Further, while EA Sports does not have names on the back of each “player’s jersey,” the game maker allows users to upload player names via the internet, thereby using each player’s name along with their image.  This would potentially be an unauthorized use of the players’ image. 

The one element missing in this claim is any sort of actual damages. There seems to be no real dollar injury sustained by the plaintiffs in this lawsuit, as these athletes are still amateurs.  Sure, each player’s image is being used in a video game, but college athletes are not playing for dollar compensation; rather, athletes are being “paid” with a free education and the usual collateral benefits that come with an athletics scholarship.  While the rigors of being a student athlete are understandable, and others are profiting off this arrangement, the responsibility remains on the athlete to take advantage of the opportunity at a free education and cash in on the next level. 

However, as Keller alleges in his complaint, college athletes may have a good faith argument that they are financially injured by EA Sports’ use of players’ names and likeness in connection with advertising and selling the various EA Sports titles.  This type of argument would provide the plaintiffs with a basis for damages, but it is something that must be proved through presenting evidence to the Court, which may be difficult to achieve.

Looking beyond the law, the central argument of Keller’s complaint is that the NCAA is supposed to be a not for profit organization, yet it is making hundreds of millions of dollars in revenue through licensing the likeness of student athletes.  It is absolutely true that the NCAA was founded on notions of amateurism.  Keller’s attorneys will seek to illustrate that this accord with EA Sports illustrates that the NCAA knowingly disregarded its fundamental underpinnings, and should be punished for its blatant profiting off of amateur athletes.  However, it is unclear how the Court will weigh this fact.  Considering this is not a legal consideration, the Court may choose to ignore this point. 

One fact that might cut against Keller’s case is the length of time between EA Sports usage of athlete likeness and the filing of this lawsuit.  This arrangement has been in existence for over a decade, and seemingly only now is a college athlete filing a bona fide objection to this practice.

While the NCAA denied that athletes’ images are used, the District Court may come to a different conclusion.  If this is the case, the NCAA may be forced to compensate student athletes in some manner other than a scholarship and room/board.  If the NCAA is forced to travel down this path, it will also be interesting whether only athletes on revenue-producing sport teams will be eligible for this compensation. 

If colleges are forced to pay ALL student athletes, even if it is at minimum wage, this could be a massive financial burden on athletic departments and universities.  As it currently stands, only a handful of athletic programs operate with a net profit.  How many athletic programs would operate in the red if it had a payroll of over one thousand employees?  For now, these issues are less likely to be discussed.  In the meantime, sports law experts and amateur athletes alike should be monitoring the progress of this suit, as its ultimate ramifications could be significant.

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Jeff Levine is a staff member of the Business of Sports Network, which includes The Biz of Baseball, The Biz of Football, The Biz of Basketball and The Biz of Hockey. He is a sports attorney, and the Executive Director of One Sports and Entertainment, International. He can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it

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