Hardline NCAA partisans, like the Big 12 conference commissioner Bob Bowlsby, will be groaning for a very long time that a landmark federal court decision yesterday will kill all college sports as we know them. That's the kind of fatuous, intellectually dishonest claim you'd expect of a cartel figurehead looking to protect a garish salary earned doing ... what, exactly.
But if it won't kill college sports, the district court ruling in O'Bannon vs. NCAA doesn't necessarily save their video games, either, even if it creates the means to publish them using real players under their real names, and pay them for it.
Many others are discussing the broader ramifications of O'Bannon vs. NCAA today. I'm going to deal with what brought the litigation in the first place: video games.
First, let's take a moment to marvel at what ultimately ended decades of the NCAA's total authority over the athletes who play for its universities: Ed O'Bannon's unnamed, uncredited, definitely uncompensated appearance, with his 1995 UCLA teammates, in NCAA Basketball 09's "Tournament of Legends" mode, a bracket of 64 teams full of all-time greats, not a one of them so much as asked for their permission to appear in the game.
The marketing of NCAA Basketball 09 barely held up the fig leaf that its NCAA Football siblings did with their main roster, where players were "named" things like "QB#07" and "WR#81," but reflected the talents, races and physical makeup of players at those positions, under those numbers, for those schools.
A developer diary written Nov. 11, 2008, by NCAA Basketball 09 associate producer Novell Thomas, a week before the game hit shelves, was a perfect example of how reckless that game was in using player likenesses: "There were some great players from [the 1970s] but I've got to start off with the guy nicknamed "Pistol" who averaged 44 points per game. He wore #23 and played point guard for LSU."
The NCAA was brought down by a video game. Why would its schools license a new one?
Such open discussion of real-life players — people who, unlike active college players, could have been paid for their appearance, but weren't — caught O'Bannon's attention (and later the hall-of-famer Bill Russell), and he filed his suit in July 2009. From the beginning, O'Bannon proposed the kind of system, in which players would be paid out upon graduation by a trust fund administered by the university, that Judge Claudia Wilken implemented with yesterday's ruling.
O'Bannon, voted most outstanding player in the 1995 national championship tournament that UCLA won, doesn't stand to hit the lottery with this decision. He earns a nice living in the marketing department of a Las Vegas auto dealership, anyway. O'Bannon made a common sense, equitable proposal to compensate players, without insulting any fair concept of amateurism, when he filed this lawsuit five years ago, and it's truly remarkable that survived to this day intact.
The trust payment is set at $5,000 per player per year in major sports like football and basketball. It's assumed that this represents just compensation for all of that athlete's appearances in NCAA products — whether broadcasts, memorabilia, or video games. This is no group licensing agreement similar to the NFL Players' Association, for example, in which athletes receive royalties directly tied to a particular product. Yesterday's ruling is a one-shot deal, though there is another ongoing lawsuit that seeks to remove all limitations on pay for performance, and that could dramatically alter things.
So while this establishes a means to lawfully compensate players for their appearance in a college football video game, nothing requires the NCAA, or its member universities, to license such a product. They're still the gatekeepers. As things stand now, it's not like Electronic Arts, or any other publisher, could directly go to college players and say "Hey, want to be in a video game?" and with that deal in hand, either convince the schools to tag along or, more unrealistically, make a game with players but not the schools.
The schools themselves must decide they want to do this. Then college sports video games would return.
After the beating they've taken — especially considering video games' role in the NCAA's imminent downfall — I'm not convinced there's much will for that. Going forward, even if players are paid something, every licensing deal acknowledges universities make money off of them, and the NCAA's entire argument is that they don't. They "generate revenue" that ostensibly funds the many other good works of this nonprofit, non-taxpaying entertainment enterprise - while paying their administrative staff many multiples above their counterparts in professional minor league sports.
The NCAA Football series also generated revenue — $80 million a year for Electronic Arts, according to testimony. Of this, about $5 million in royalties were paid to schools (other licensors like the bowls, conferences and The Heisman Trust, also got cuts of unknown amounts). Under the tiered structure of payments in the last agreement, the top universities — about 32 out of 125, determined by a 10-year average finish in AP Top 25 polls — received only $75,000 annually. The bottom 25 percent? They got $7,500. This included Baylor, home of the 2011 Heisman Trophy winner.
Once it became apparent just how much trouble the NCAA was in with O'Bannon, and how bad all of this looked for its members, that comparative pittance of a payment became very easy to give up. Ohio State was said to be out of the since-killed College Football 15 from the outset. Washington, the Southeastern Conference (as an entity, not its individual members) and some other schools also very courageously said they were out of the video game business, too, until someone reminded them they had signed contracts to be in this year's game, had it been made.
I don't see what amount could bring these folks back to license a meaningful college football video game. A million each? Half a million?
Half a million is what the NCAA itself was paid each year, just for its name and logo on the product — nothing more —and that was the vestige of a deal EA Sports put together in 1997 to get a license for the March Madness trademark and symbols in its basketball game.
The point of all this is that, even without a group license to players being a necessity, there are simply too many entities taking a cut to make the individual payments to them sizable enough to entice them back. When you're Indiana, or Colorado, or Iowa State looking at $425,000 each year to 85 scholarship athletes on a 3-9 team — these are "Power Five" conference schools, remember — $7,500 is almost meaningless.
There are more than 120 top-flight college football schools. How much money would bring them back to video games? A million each?
Argumentatively, it may represent some additional money, and a video game does deliver residual benefits to alumni goodwill and possibly even football recruiting. But after at least two and maybe three years of no college football video games, universities are likely to find campus life, alumni development and, most importantly, their athletics department's bottom line isn't all that different. And we haven't had a college basketball video game since 2009 and life hasn't changed much since then, either.
Realize that schools don't always act when there's money on the table, in any amount, either. If they did, the NCAA would have sanctioned a full college football playoff and reaped billions from licensing its broadcast. (You do know there is not — and there never has been — any NCAA-recognized national champion in the top division of college football, going back a century?) But that would assume the money is shared equitably with the South Alabamas and UNC-Charlottes as well as the Alabamas and UNCs. And the big boys can keep more money for themselves under the bowl system.
What the O'Bannon ruling did was create a new expense for the universities with no comparably enhanced revenue stream. A college football video game, with fully authentic rosters, would create an enhanced revenue stream to EA Sports, with no new licensors. They may make more, but it won't be much. That $80 million revenue figure cited for NCAA Football? Madden NFL has, in the past, paid more than $50 million in a single year just in licensing costs to the league and its players. And there is no way a college football video game is ever outselling the NFL's.
There will always be college football and basketball on television. The income, even giving players a cut, is simply too great. Those deals will either be renegotiated, or new ones will account for this new expense, and college sports will be just fine.
And we also just lived through the first July without a college football video game in 19 years, and the Republic still stands. Friday's ruling, even if it is upheld through the inevitable process of appeals to come, creates only the condition for an NCAA football video game to return. It does not create the will or the means.
Roster File is Polygon's news and opinion column on the intersection of sports and video games. It appears on weekends.