Though a federal appeals court made a surprising reference to the return of college football video games in a ruling today, the decision it has rendered in no way guarantees such a thing will happen.
The Ninth Circuit Court of Appeals, in what has become known as the O'Bannon case, upheld a lower court's ruling that NCAA rules limiting what kinds of compensation athletes can receive violates U.S. antitrust law. NCAA schools can pay their athletes' "cost of attendance" — that is, cash above the tuition, fees, room and board of a full scholarship.
But the universities are not required, per an earlier ruling, to cover an amount above that. A judge had proposed a plan that would have set aside up to $5,000 for an athlete in deferred compensation per year.
In short, this is a win for the NCAA, even if the Ninth Circuit panel found it "entirely possible" the NCAA could return to licensing video games in the future. And even then, the NCAA and its member schools — who have bitterly fought against the idea of compensating their players for appearing in video games — still effectively hold a veto on whether one ever gets made. There is no ruling that says NCAA players may accept outside compensation for appearing in one, or that the NCAA can't prevent such compensation under its amateurism rules.
Still, the fact the appellate court agreeed with the district judge that the NCAA "may well begin working with [Electronic Arts] or another video game company in the future" arched eyebrows and raised hopes among sports video gaming fans. Look closely, though and you'll see very little incentive for the NCAA or these universities to change their minds and resume participating in such a venture.
It's not about the money
Yes, the district court noted the profitable relationships among the NCAA, its members and EA Sports in the production of the defunct NCAA Football series in surmising that they would resume someday after this litigation. These deals may have been profitable, in that the cost to the NCAA and its schools to participate was nothing.
But the money they received was hardly a windfall for a league and conferences who negotiate multimillion-dollar television rights packages, and whose recipients of that largesse — the universities — also take in millions of dollars in apparel and memorabilia sales.
At the time NCAA Football was canceled in 2013, EA was paying around $550,000 to the NCAA for the use of its logo and its name. In 2011, the NCAA negotiated a $10.8 billion television rights deal for the broadcasts of its men's basketball tournament.
The NCAA's appearance was never much necessary to the game, as it did not administer the Bowl Championship Series determining a national champion at the time (nor does it officially recognize any national champion in what is called the Football Bowl Subdivision comprising the biggest schools.) The NCAA's inclusion in the football game was essentially a half-million dollar favor thrown in when EA Sports sought the NCAA's license to begin the March Madness series back in the late 1990s. That series closed down after 2009.
Profitable, yes. An offer they can't refuse? No.
The NCAA Football game was more dependent on a vast, complicated set of licenses with individual universities and their athletics conferences, some of whom were already announcing their intention to leave the series in the months before the game was canceled. That's because these big schools were paid take-it-or-leave-it sums, too.
The final licensing agreement, for the never-published College Football 15, would have paid $78,000 to each school in the top of four total tiers of compensation. Placement in each tier was determined by a rolling average of final rankings in college football's polls and other sources. Second, third, and fourth-tier schools would have gotten $47,000, $31,000 and $7,500 respectively.
While today's ruling vaguely introduces the idea of a return to a video game, there still exists no reason for the NCAA to change a posture strongly opposed to athletes even appearing in one. There's no public-relations incentive, either, for the schools to return to video games that have been held up as an abuse of players' rights in nearly a decade worth of high-profile litigation.
Of course, a game with everyone — players, schools, bowls, conferences — on board would likely be one of the top-selling sports video games in North America, much more than an appetizer arriving a month before the Madden NFL series' launch. Conceivably there would be more money to offer these licensing partners. But there are 128 schools in major college football; it's unlikely EA Sports could make a profitable game off a nine-figure licensing deal, which is what it would take to make an offer they couldn't refuse.
Electronic Arts' relationship with the NCAA also is chilly of late. EA and the Collegiate Licensing Company, the largest licensing clearinghouse for NCAA schools and the league itself, acquiesced to the O'Bannon litigation in 2013 by offering to pay $40 million and end the video game series. The NCAA sued to block that settlement, and in its testimony has sought to pin all of the damage caused by the game on arrangements betwen EA Sports and the CLC that it was unaware of.
Most recently, the NCAA stepped in and forced the removal of 13 women's soccer players from the new national team rosters in FIFA 16 — a key feature being heavily promoted for the global bestseller — because appearing in the game would threaten their collegiate eligibility. EA Sports was forced to remove the players from the code that shipped on the FIFA 16 disc; it strongly disagreed with that decision and sharply criticized it in an explanation to FIFA fans.
Right. Yes. What about 2K Sports? I get asked this every day. 2K/Take-Two Interactive does not have, to anyone's knowledge, a football engine any newer than 2007's All-Pro Football 2K8. It does have a CEO that has, since then, steadily moved the company away from licensed video games because of their added costs. 2K Sports has stuck with NBA 2K because it is the market leader and a money printing press, and with WWE because it got that license at a fire-sale price when THQ went bust.
It's all about control
With sums of $7,500, $5,000 and even $500,000 in dispute in what is a billion-dollar sports enterprise, I have long maintained that the O'Bannon case — which began with an unauthorized use of likeness in a basketball video game — was never about money as much as it was about control: players' control of their rights, and the NCAA's control over players' lives while they're enrolled.
If they haven't given players control over their likenesses, at least these lawsuits have taught a healthy respect for that right so far. And if they haven't freed them entirely from the NCAA's grip, at least they've loosened it some. But despite everyone's excitement this morning, nothing alters the total control the league and its universities have over this video game's return.
Roster File is Polygon's news and opinion column on the intersection of sports and video games.