The wait is over. Earlier this month, EA Sports announced that it would revive its popular college football video game franchise NCAA Football. This time around, however, the game will be called EA Sports College Football. The name is not the only thing that will be different about the game, which marks the first college football title from EA Sports since 2013. Perhaps the biggest questions ahead of College Football’s release are whether and how EA Sports will allow players to edit and share rosters in the game, and what the base rosters will look like to begin with.
The story about why EA Sports discontinued the NCAA Football franchise in the first place is somewhat contested, and worth recounting as gamers eagerly await the franchise’s latest installment. EA Sports released its last college football video game—NCAA Football 14—on July 9, 2013. Around the same time, the game maker was caught up in a massive lawsuit.
Four years earlier, in July 2009, former UCLA basketball star Ed O’Bannon sued the NCAA, EA Sports, and the Collegiate Licensing Company (CLC). O’Bannon, the story goes, saw a video game version of himself on a legends team in the EA Sports game NCAA Basketball 09, but had not received any share of the video game’s profits for the use of his likeness. O’Bannon’s suit alleged violations of antitrust law stemming from his and other former student-athletes’ non-compensation for what O’Bannon described as the NCAA’s commercial use of their names, images, and likenesses.
EA Sports ended the NCAA Basketball franchise a few months later in February 2010, but its NCAA Football game lived on. Meanwhile, O’Bannon continued to litigate the case on behalf of a class in federal court in the Northern District of California before Judge Claudia Wilken. After three and a half years passed, however, the end of the road came for the NCAA Football video game as well.
Shortly thereafter, in May 2014, college football and basketball players involved in the O’Bannon lawsuit reached a settlement with EA Sports and CLC for $40 million. But as ESPN reported at the time, the parties had originally come to an agreement back in September 2013, just two months after the last NCAA Football game was released.
Yet EA Sports maintains that the lawsuit and settlement were not the reason that the NCAA Football video game franchise came to an end. ESPN reported that “[w]hile O’Bannon was sometimes mistakenly blamed for the game’s demise, the company said at the time that it stopped production because the NCAA and some conferences were no longer interested in licensing their logos and names to the game makers, which prevented them from creating an authentic experience.” Times, it appears, have changed. Now, over 100 college teams have agreed to be in the game, and some commentators expect “universal buy-in” by the time we get to the release date.
In recent years, EA Sports has dropped hints that a foray back into college sports might be in the cards. Madden NFL gamers have noticed over the last few years that the franchise’s career mode has included various college teams, complete with stadiums, uniforms, and other important features. It is here that one needs to draw a distinction between teams and players in sports video games, and in the context of Madden, Barry Svrluga at the Washington Post explains it well: “In producing [Madden NFL], EA cuts two deals — one with the league so it can use team logos and stadiums, and one with the players’ union so it can build characters that represent each player.”
The new EA Sports College Football game appears to be going around the NCAA and negotiating directly with teams for the former (using team logos and stadiums), while avoiding the latter entirely (using player images and likenesses in-game). So, the likelihood is that the new game will include most or all of the Football Bowl Subdivision teams (LSU, Clemson, Stanford, etc. with their jerseys, stadiums, logos, etc.), but the rosters of players will be auto-generated instead of real. This means that for teams like, say, UNC, the quarterback will be a random avatar, not Sam Howell.
Assuming no changes in the governing legal framework, EA Sports will have to strike a balance between producing a realistic game and curbing the legal and public relations downside of coming too close to profiting off of player likenesses. One problem is that the overall ratings of the teams are based on composites of the overall ratings of the players on those teams. And it would be a bit weird if the ratings were fully randomized such that Alabama was a mid-tier team and East Carolina checked in at a 95 overall (sorry, Pirate Nation).
EA Sports may therefore want to devise an algorithm that produces randomized rosters such that Alabama’s overall rating comes out in the mid-90s and East Carolina’s comes out in the mid-70s, whatever the combination of individual player ratings that gets you there. Highly rated video game characters in sports games, even if not real players, can become mini-folk heroes; some will recall the legends of Jon Dowd and Pablo Sanchez.
In any event, given the litigation (and public relations) risks, EA Sports should be scrupulous about developing the game internally in such a way that takes no account of the names or attributes of the current student-athletes, unless and until EA Sports can strike a separate deal with the players to compensate them for the use of their names, images, and likenesses. During the O’Bannon litigation, the players cited EA’s internal spreadsheets as part of their argument, noting that each game avatar “was matched to dozens of [a] real student-athlete’s identifying characteristics.” These included jersey numbers, positions, ratings, physical characteristics (like height, weight, skin color, etc.), and uniform accessories.
As many who used to (and still) play NCAA Football know, however, the “out of the box” roster has often just been a starting point for gamers. NCAA Football, like nearly every other sports video game, provided an option for gamers to edit the rosters. Through the edit roster feature, for example, one could change a randomly generated, 70-overall middle linebacker on Clemson into a 6-foot-6, 220-pound quarterback named Trevor Lawrence, rated 99 overall and wearing number 16.
Would anyone take the time to do this for every single player on every single college team in the game? This is the internet we are dealing with here—so the answer is, of course, yes. For years, the website Operation Sports has operated an online forum on which NCAA Football gamers can collaborate on the creation of rosters with updated ratings, player names, attributes, etc., even as NCAA Football itself has not released a new game in almost a decade. NCAA Football included a “Roster Share” feature that allowed players to upload and download these rosters, and that is exactly what players have done.
The key distinction here is that the users of the Operation Sports forum are not employees of EA Sports and apparently receive no compensation for their work. One might argue that the Roster Share feature provides a platform for the importation of rosters with real names and attributes into the game (which, the argument goes, is what many NCAA Football gamers are really after when they buy the game), but the platform itself is neutral. Still, some, like Darren Rovell, have argued that the use of this “loophole” to import “bootleg roster updates” would expose EA Sports to liability.
As I see it, EA Sports could probably go one of three ways here (again, assuming no changes to the current legal framework). The first way is a total ban on roster edits from the randomized “out of the box” roster. This would fully minimize litigation risk, but omit a core feature of sports video games. Creating real-life rosters is not the only reason one might use the edit player feature, and countless gamers have used edit/create player to place fictionalized versions of themselves in the game (hence the success of NCAA Football’s “Road to Glory” mode).
The second way is an allowance of in-game roster edits on one’s own personal game, but an omission of the Roster Share feature. I do wonder if this is technically feasible, as gamers might be able to find a workaround to download rosters onto their PlayStations or Xboxes (through USB drives and the like), but at least EA Sports would not be providing the platform. The difference is perhaps significant, perhaps semantic.
The third way is an inclusion of the Roster Share feature and a disclaimer that (1) any of the rosters uploaded to the Roster Share portal are not official parts of the game and (2) the creators of the rosters are not affiliated with EA Sports. Here, EA Sports would take the position that it is creating a game with randomized players, and if some choose to change those randomized players to resemble real-life student-athletes and share the roster files, that is their business. But Darren Rovell’s point from above is well taken in response to this argument, and U.S. Senator Chris Murphy—a leader on this issue—is already criticizing EA Sports for cutting out college players.
It remains unclear how a judge would view these different arrangements in the context of litigation, but Congress and the public are relevant audiences here, too. To be sure, EA Sports is certainly keeping an eye on Congress to see if lawmakers can pass a federal bill addressing college athlete name, image, and likeness compensation. We have previously discussed such efforts in these pages. Moreover, the Supreme Court is considering a student-athlete compensation case this term, but the issue in that case is slightly different than the one in O’Bannon’s lawsuit.
No matter what happens with the Roster Share feature, the return of a college football video game has fans excited. I would be surprised if there are not some more important developments between now and the game’s release, especially given the Roster Share conundrum.
Eli Nachmany is a second-year law student at Harvard Law School and the Managing Editor (Print) of the Harvard Journal of Sports and Entertainment Law.