College athletes who appeared in EA Sports' NCAA Football and NCAA Basketball/March Madness series would receive nearly $1,000 per appearance, under the terms of a proposed settlement the players are now asking a judge to approve.
The $40 million settlement, to be paid by Electronic Arts, could amount to $951 per player per appearance, according to the law firm Hagens Berman Sobol Shapiro of Seattle, which is representing the players. It covers any NCAA-branded video game EA Sports made from 2003 forward. Actual payments will differ for athletes on a case-by-case basis.
According to a filing, the last estimate of the settlement class was that athletes had made nearly 100,000 unauthorized appearances (some players making more than one) in NCAA-branded games during that span. To be covered under the terms of the settlement, the athletes must have been identifiable on the roster by four objective criteria: academic institution, assigned jersey numeral, position, sport and division played, and home state.
"We're incredibly pleased with the results of this settlement and the opportunity to right a huge wrong enacted by the NCAA and EA against these players and their rights of publicity," said Steve Berman, the plaintiffs' lead attorney. "We've fought against intense legal hurdles since filing this case in 2009 and to see this case come to fruition is a certain victory."
EA Sports' history of making NCAA-branded video games dates back to 1997. NCAA amateurism rules prohibited it from using players' real names on their rosters; EA Sports got around this by listing players by an abbreviated position and their uniform numeral, with nearly all other traits — including height, weight, skin color and ability level — conforming to a real person. The NCAA was told directly by EA Sports of this practice back in 2003. Later in the football and basketball series, EA Sports also supplied the means to share edited rosters, and the player community often would edit real names into the entire roster within days after the game's launch.
The players—principally the former quarterbacks Sam Keller and Ryan Hart, and the former UCLA basketball star Ed O'Bannon—alleged this constituted an unlawful use of their likeness. They filed a series of cases against EA, the NCAA and its licensing arm that had bounced through federal district and appellate courts since 2008. The lawsuits gathered serious traction last year when a federal judge ruled that current college athletes could be added to the class action. The threat of paying enormous damages led Electronic Arts to negotiate a settlement in September and end its NCAA Football series.
Their case still proceeds against the NCAA, where it threatens the basic model under which college athletics operate. Among other deals, the NCAA itself sold the TV rights to its men's basketball tournament for $10.8 billion over a 14-year term. The potential for damages there could dwarf the $40 million EA Sports is paying.
The $951 figure is a rough estimate. The number of players that opt into the class action will affect the payout, as well as when they appeared in the game. Those who appeared in a video game from 2003 to 2005 are expected to receive between $96 and $517 per appearance. Those who appeared in a video game from 2005 to present are expected to receive between $166 and $951 per appearance. There's a third class, involving players who appeared on a roster but not in a game, and if they did so between 2005 and 2014, they would receive between $48 to $276 per appearance. Again, this depends on how many players file claims.
Additionally, O'Bannon, Hart and Keller will each be compensated $15,000; former West Virginia football player Shawne Alston will receive $5,000, with other plaintiffs getting between $2,500 and $5,000 for their participation in the lawsuit. Plaintiffs' attorneys will not be paid more than $13.2 million
EA Sports had made an NCAA Football game annually from 2003 to 2013; a college basketball title annually from 2003 to 2009; and even two NCAA-licensed college baseball titles in 2006 and 2007. The football series appeared on GameCube, PlayStation 2, PlayStation 3, PlayStation Portable, Xbox, Xbox 360 and Wii in that span. The March Madness/NCAA Basketball series released for PS2, PS3, Xbox and Xbox 360, and the MVP NCAA Baseball series included releases for GameCube, PS2, PSP, Xbox and Windows PC.
The plaintiffs' attorneys note that, if the settlement is approved, it will be the first time in history that commercial partners of the NCAA will pay student athletes. The settlement proposal was announced late Friday evening; Polygon has reached out to Electronic Arts for comment and will update this story with any given.
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