The following is excerpted from Court Justice: The Inside Story of My Battle Against the NCAA by Ed O’Bannon with Michael McCann. Copyright © 2018 by Edward C. O'Bannon, Jr. and Michael A. McCann. Published by Diversion Books.
After the trial ended, plenty of people shared their views about my case. A number of current and former athletes emailed or tweeted at me to say thank you for standing up. It didn’t matter which sport they played or whether they were men or women. Sometimes it was former basketball players. Other times it was former volleyball or track athletes. To a person, they were supportive. Not one player had anything negative to say. Quite a few former players also told me they viewed the case as about racial justice. They knew that I’m not a civil rights leader. No one is confusing me with Malcolm X or Gandhi. But the thing is, you didn’t need to be someone of that stature or courage to recognize a very simple point: the NCAA has made a lot of money off the backs of young black men, and there’s something very disconcerting about that. So players embraced our cause and, in doing so, made me feel proud that I had brought the case.
It was a different story for people who hadn’t played sports and who wished to contact me about the case. There it was a mixed bag. Some of those folks were, like the athletes, encouraging, but others had less flattering views. I never received any death threats, but I would get the occasional message that wished me harm. Most of the responses, though, looked like these three:
“Why are you doing this?”
“You’re just some money-hungry ex-jock!”
“Dude, you’re messing up the video games!”
The “why” critique was an easy question to answer. And no, I obviously wasn’t “money hungry.” If I were, I wouldn’t have spent eight years of my life litigating a case where I knew that if I won, I would get the same amount of money as if I lost: zero dollars. In fact, all things considered, I likely lost quite a bit of money on the case. Rosa and I spent some serious funds on travel, and both of us took time away from work—and, remember, I sell cars. So when I’m not at work selling cars, I’m not getting a commission and I’m not getting paid.
But the video game comment was the one that I got the most. To be honest, it kind of caught me off guard since it was so wrong and so ridiculous. Yes, it’s true that Electronic Arts stopped publishing college sports games after we led my lawsuit, but let’s think about the facts for a moment.
Court Justice: The Inside Story of My Battle Against the NCAA
by Ed O’Bannon with Michael McCann
Breaking down history’s most important victory yet against the inequitable model of multi-billion-dollar “amateur” sports, plus a look at O'Bannon's unique perspective on today’s NCAA recruiting scandal.
First off, as the evidence showed, Electronic Arts wanted to pay for the right to use complete player identities. It wanted every college roster and every roster of top teams from the past. It wanted every college player’s name. It wanted a license to publish everything about the players and their identities within college hoops. EA didn’t care if it had to pay the NCAA, the schools, the players, the former players, or some combination of them for that right.
This isn’t surprising at all if you think about it. EA is in the business of making video games. It’s not in the business of propping up amateurism. It doesn’t care about amateurism. Never has. Never will.
And consider EA’s slogan for its sports video games, “It’s in the game.” EA only wants to publish the most realistic sports games possible. Why is that? Because the most realistic games are the kinds of games that sell the best.
So why aren’t there college games with complete players’ identities? It’s because of the NCAA.
The NCAA told EA that the video game publisher couldn’t pay for the complete identity rights of college players. So that stopped EA from obtaining them. If the NCAA had let EA pay us, all of you gamers out there would have your college sports games. So don’t blame me. Blame the NCAA for refusing to change its rules in the face of basic common sense, not to mention consumer demand.
Plus, EA reached a settlement with us right before the trial. We have no grievance with them and they have no grievance with us. The settlement called for EA to pay about $40 million to more than 29,000 current and former players who were part of our class action. Depending on how many games the players appeared in and how closely their likeness was directly copied in the game’s avatars, players got checks worth up to $7,200 and on average about $1,200. The checks obviously didn’t come from the NCAA, so they didn’t “right the wrong” that the NCAA had inflicted on college athletes. I also recognize that a check for five figures didn’t make any player rich, but our case—our movement—was never about making anyone rich. It was about fairness and recognition of rights.
And I should add that my lawyers consulted with me about the settlement and asked for my approval. They explained why they believed it made sense. They asked me if it was enough or if we should keep fighting. It was one of those conversations where we all agreed that two plus two equals four but they said we could wait it out and try to make it equal five. I said, no, two plus two equals four. And so we struck a deal with EA and that removed EA from the case.
EA settled in part because it didn’t care about protecting amateurism—it cared about publishing video games—and in part because it knew that it had used players’ images and likenesses without their permission. Back in 2012 EA sent us boxes of papers as part of a document request. In one of the boxes were email printouts. Among them were emails from EA Sports staff in which they talked about designing and coding the March Madness 08 game to include players’ names. But then, as those emails explained, EA pulled the names right before publication.
Why would EA do that?
Because the Collegiate Licensing Company—the exclusive trademark licensing agent for the NCAA—warned them to do so. “This is exactly the type of thing that could submarine the game,” CLC senior vice president Derek Eiler wrote in an email to EA, “if it got to the media.” Joel Linzer, an executive VP for EA, testified during our trial to provide additional details. He explained that EA had arrangements in place to easily negotiate with college athletes for a group license and that EA very much wanted those rights to make the games more realistic.
It was refreshing to hear Linzer’s testimony. He made it clear that not only do college athletes’ identity rights exist but they are undoubtedly valuable, too. That’s true whether video game publishers, television networks, apparel companies, or a host of others in the college sports industry used those rights.
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.
To be honest, the one disappointment I have from the lawsuit is that EA hasn’t had the courage to say, “To hell with the NCAA!” EA has basically let the NCAA tell them what to do, and now consumers are being denied games that they clearly want. EA should reach out and negotiate a group license with players. We’re more than willing, EA. It wouldn’t cost you a lot, either—I can assure you. Most players would love to be in the video games. All they want is a small amount of money to show they count. It’s really about respect.
Some would say EA figuring out how much money should go to each player would be complicated. Listen, we’ve flown to the moon. We’ve cured all sorts of diseases. I think figuring out a fair distribution of video game money is well within the abilities of mankind.
So, yes, EA should make a game with real college players, both current and past. If the NCAA won’t license the schools, so be it. EA could use locations instead of those teams’ names and other properties. College basketball video game players would probably be able to make an educated guess as to inspiration for that Washington, DC, college team with Patrick Ewing, Alonzo Mourning, Dikembe Mutombo, and Allen Iverson, all digitized and all real on the roster.
Look, the NCAA endorsed EA doing that kind of manipulation—and much more—to our identities as players, so I can’t imagine the NCAA would object to it being done to them.
All I know is people would buy those video games. You don’t need the NCAA for college sports and you don’t need them for college sports video games, either.
As it’s been said before, if you build it, they will come.