Don’t Call it a Comeback: The Return of College Football Video Games and the Impact of O’Bannon v. NCAA

[Jacob Conners, Contributing Member 2020-2021, Intellectual Property and Computer Law Journal]

Introduction:

            “EA Sports. It’s in the game.”[1] The famous words in the title sequence of every EA Sports video game have proven untrue for college football players since July 2013, the release date of NCAA Football 14.[2] College football players have not been “in the game” since EA Sports discontinued the video game on September 26, 2013.[3] Cam Weber, the General Manager of American Football at EA Sports, released a statement announcing the discontinuation citing that EA Sports was “stuck in the middle of a dispute between the NCAA and student-athletes who seek compensation for playing college football.”[4] Mr. Weber also distinctly pointed out that EA Sports had always followed the rules set forth by the NCAA while also complying with the law.[5] The disputes culminated in the Ninth Circuit Court’s decision of O’Bannon v. NCAA.[6] Many blamed Ed O’Bannon and the O’Bannon lawsuit for ending the video game, while others put all the blame on the NCAA.[7] No matter who they blamed, college football and video games fans were thrilled and relieved following the announcement that EA Sports would be bringing back the well-known college football game in early February 2021.[8] The video game’s return will show how name, image, and likeness (“NIL”) lawsuits have changed the outlook of collegiate athletics. Furthermore, the ever-growing fraction of intellectual property law in NIL becomes more relevant each year with the continual increase in NCAA sports television coverage.[9] Massive television deals have been signed for up to twelve years into the future and have become even more crucial with the lost revenue from the COVID-19 pandemic.[10]

            NIL is currently a hot topic in college sports, the United States Congress, and state governments throughout the country.[11] California started the trend of allowing collegiate athletes to profit off of their own NIL with a bill that prohibited postsecondary educational institutions, athletic associations, and athletic conferences from “preventing a student participating in intercollegiate athletics from earning compensation as a result of the use of the student’s name, image, or likeness or obtaining professional representation relating to the student’s participation in intercollegiate athletics.”[12] In other words, this bill prohibits the NCAA from sanctioning student-athletes who profit off of their NIL. Florida passed a similar bill that authorizes intercollegiate athletes to earn compensation from their NIL but prohibits the athlete from entering into a contract for NIL compensation if any term of the contract conflicts with any term in the athlete’s team contract.[13] Furthermore, the bill prevents a college from preventing or unduly restricting a student-athlete from obtaining professional representation by a licensed or registered agent to help secure NIL compensation.[14] The Florida bill also specifies that grants and scholarships may not be reduced just because an athlete earns compensation or obtains professional representation for NIL.[15] NIL lawsuits and laws will continue to change the landscape of collegiate athletics.

            Many believe O’Bannon was the start of the end for collegiate athletics; however, the smaller, less popular NCAA sports will feel the real impact of O’Bannon.[16] The real impact will be felt by the less popular sports because of the revenue missed out on by the NCAA from the discontinuation of the video games.[17] Since the less popular sports, also known as non-revenue sports, do not produce revenue, they will be the first ones dropped with lessened revenue or profits from the NCAA.[18] This problem is currently being exacerbated by COVID-19.[19] COVID-19 caused the cancellations of many collegiate sporting events and caused stadiums to operate at minimal capacity.[20] While revenue sports will still feel an impact, they will be able to better combat being cut since they are creating their own revenue.[21]

O’Bannon, Keller, and crew:

            Undoubtedly, the decision in O’Bannon v. NCAA has had an impact on collegiate athletics. However, the full impact is not yet clear. This should not come as much of a surprise since the 2009 lawsuit was not decided until 2014, and the Supreme Court denied certiorari on October 3, 2016.[22] The impact of O’Bannon will continue despite EA Sports’ announcement that the College Football video game is coming back. It is unclear exactly how the video game will be affected, but a review of O’Bannon and the lawsuits since the decision will help paint a clearer picture.

            On July 21, 2009, Ed O’Bannon, a former All-American for the University of California, Los Angeles (“UCLA”) Bruins men’s basketball team, agreed to be the lead plaintiff in a class-action lawsuit against the NCAA, the Collegiate Licensing Company (“CLC”), and Electronic Arts (“EA”).[23] Ultimately, O’Bannon represented the college athletes whose images and likenesses were depicted in the EA Sports video games.[24] Sam Keller, a name perhaps more known to college football fans, filed a similar lawsuit a few months prior on May 6, 2009.[25] Keller, a former collegiate quarterback for the University of Nebraska and Arizona State University, filed a lawsuit in federal court alleging that EA Sports and the NCAA illegally profited from college football players’ images and likenesses.[26] Ryan Hart, another former college quarterback and beloved Rutgers alum, followed suit by filing a lawsuit in New Jersey state court.[27]Troy Taylor, a former collegiate quarterback for the University of California and current head football coach at Sacramento State, joined Hart’s lawsuit shortly after it was filed.[28] Keller and Hart were the other lead plaintiffs along with O’Bannon.[29] Keller v. NCAA was combined with O’Bannon v. NCAA in 2010.[30] Two of the most influential athletes in NCAA history, Harry Flournoy and David Lattin, also joined the O’Bannon lawsuit in 2010.[31] Flournoy and Lattin were members of the 1966 Texas Western basketball team that featured the first all-black starting lineup to win an NCAA national championship.[32]  

            The ultimate success of the O’Bannon lawsuit did not come without struggles throughout the litigation. The District Court dismissed EA from the lawsuit following the partial grant and partial denial of the Defendant’s motion for dismissal.[33] The opinion also combined the lawsuits of Sam Keller and Craig Newsome against the NCAA.[34] As a part of the O’Bannon lawsuit, Craig Newsome who played football for Arizona State University alleged that the NCAA “illegally forced athletes to sign agreements giving away rights to profit from their images.”[35] EA was originally dismissed from the case through a partial dismissal on May 5, 2011, for lack of evidence that EA conspired with the NCAA and CLC.[36] The dismissal occurred mere months after University of Cincinnati legend Oscar Robertson agreed to join the O’Bannon class-action lawsuit.[37] However, the dismissal was reversed following evidence that surfaced.[38]Judge Wilken described the evidence as “significant” regarding the collusion of the parties.[39] The parties colluded to allow third parties to create modifications to the NCAA video games so they could continue to use collegiate players’ images and likenesses without compensation.[40]

            The O’Bannon lawsuit started to gain momentum in November 2012 once internal NCAA emails surfaced that stated, “[EA Sports and the NCAA] don’t actually use player names but we do use all the attributes and jersey numbers of the players.”[41] Furthermore, Jeremy Strauser, an EA employee from 1995 until 2011, testified “that computer-game avatars were linked to specific player identifying numbers and biographical information, such as team depth charts, to make the game realistic.”[42] Developers admitted that they used actual game footage from college football games to develop players in the game.[43] This gave evidence of the allegations O’Bannon’s attorneys set forth in the plaintiffs’ motion filed on August 31, 2012.[44] It was a huge win in the name, image, and likeness battle, a cornerstone of O’Bannon’s argument.[45]

            The NIL win, coupled with the fact that even EA employees felt that it was “sketchy” to use broadcast footage from the CLC and its subsidiary Collegiate Images, put pressure on the Defendants to settle.[46] The pressure proved to be too much for EA and the CLC as EA and the CLC agreed to a near $40 million settlement on September 26, 2013.[47]The settlement occurred even though EA Sports did not use any current or former collegiate athletes’ names in the video games.[48] EA Sports did not admit wrongdoing but did use players’ jersey numbers, heights, weights, skin tones, hair colors, and even the athletes’ home states in the NCAA Football biographies.[49] EA Sports not only used this information without permission but also without compensation.[50] The NCAA Football video game series was discontinued the same day, resulting in disappointment from many fans across the country and the loss of quite a few jobs for EA Sports employees.[51]

            Since EA Sports did not have a judgment entered against it, the discontinuation of the video game was ultimately EA Sports’ decision.[52] This is important to consider when theorizing what the return of the video game may look like. In my opinion, it is also extremely important to point out that a tweet from @EASPORTS featured a graphic that read “College Football is coming back,” with an EA Sports College Football logo underneath.[53] An interesting development because the name of the previous college football video game was “NCAA Football” followed by the upcoming year.[54]For example, NCAA Football 2013 hit the market in 2012 before the start of the 2012-2013 NCAA Football season.[55]The discontinued version of the game was never called “EA Sports College Football” since EA obtained licensing rights of the NCAA name before the release of NCAA Football 1998.[56] This may show the possible differences that are sure to come with the return of the video game. EA Sports and the NCAA likely have a strained relationship following EA and the CLC settling the O’Bannon case and leaving the NCAA as the lone defendant in the Northern District of California ruling and the appeal in the Ninth Circuit.[57] This settlement allowed the Northern District to set an injunction that permitted the NCAA to set a cap on the amount of money that may be held in trust, but prohibited “the NCAA from setting a cap of less than five thousand dollars (in 2014 dollars) for every year that the student-athlete remains academically eligible to compete.”[58] The minimum cap was set after taking into account the cost of attendance.[59] The court determined that the NCAA could not set a cap that was less than the cost of attendance for any given school.[60]The district court also ordered that Plaintiffs could recover their costs from the NCAA since the NCAA’s rules were deemed a violation of the Sherman Act.[61] The Ninth Circuit ultimately affirmed all of the circuit court’s decision except the requirement that the NCAA must allow schools to have $5,000 per year in deferred compensation payable to student-athletes.[62] The court rejected the deferred compensation since it stemmed from Neal Pilson’s, the NCAA’s witness, testimony without legal support or statistics.[63] The court agreed on $5,000 simply because Pilson stated that he would be fine with $5,000 deferred since it would still protect the amateurism of collegiate athletics.[64]

            Further proof of the divide between the NCAA and EA Sports is the lawsuit the NCAA filed in a Georgia state court against EA Sports and the CLC in which the NCAA sought to block the settlement between EA Sports, CLC, O’Bannon, Keller, and company.[65] The NCAA alleged that the “CLC failed to adequately supervise EA Sports, subjecting the NCAA to potential liability in several lawsuits.”[66] The NCAA felt that EA and the CLC wrongfully settled leaving NCAA out to dry in the O’Bannon lawsuit.[67] Furthermore, the NCAA claimed it would suffer irreparable harm by the EA and CLC settlement. Ultimately, the NCAA would settle with the O’Bannon plaintiffs for $20 million on top of a $40 million settlement from EA and CLC.[68] The prior settlement practically forced the NCAA to enter into a settlement because EA and CLC were willing to admit at least partial wrongdoing and also helped point to the NCAA’s guilt.[69]

            The legal battle that occurred between the NCAA and EA Sports appears to have at least caused a name change in the video game series. It is still unclear how the O’Bannon ruling will fully affect EA’s use of NCAA member schools, stadiums, jerseys, or awards. However, the relationship between the CLC and EA Sports still seems to be intact.[70] The CLC represents and controls many crucial aspects of the college football video game.[71] The CLC’s representation includes the NCAA along with athletic conferences, bowl games including the College Football Playoff, and the Heisman Trophy.[72] Thus, EA Sports may be able to navigate a deal with CLC to use these aspects in the video game’s return despite the damaged relationship with the NCAA.

Notre Dame, Johnny Football, and AJ Green:

            The University of Notre Dame may have forecasted the unfortunate reality of what the video game’s relaunch may include. In late February, Notre Dame announced that its football team would not be featured in EA Sports’ college football video game without the inclusion of player benefits and compensation for NIL.[73] The stance points to the harsh reality that the NCAA continues to avoid the legal issues regarding student-athlete compensation for name, image, and likeness used in college athletics. Notre Dame Athletic Director Jack Swarbrick confirmed that Notre Dame would not be included or participate in the video game until “rules have been finalized governing the participation of our student-athletes.”[74] Notre Dame’s announcement is a breath of fresh air with a perennial powerhouse in college football taking a stand to prevent the NCAA, EA Sports, or CLC from profiting off of collegiate athletes NIL without compensation or permission.[75]

            NIL has been a touchy subject for quite some time in college athletics. For example, in 2013, the NCAA ruled that Johnny Manziel could keep his winnings from a lawsuit won in the Eastern District of Texas even though he was still the starting quarterback at Texas A&M.[76] The NCAA came to this decision reasoning that Manziel “had a right to keep any winnings from a civil proceeding as a private entity, but if it was an orchestrated event enabling a cash flow to the student-athlete, that would be a violation of NCAA rules.”[77] Manziel sued Eric Vaughn for a trademark infringement.[78] Vaughn sold shirts with, “Keep Calm and Johnny Football,” on them.[79] Manziel’s corporation, JMAN2 Enterprises, had applied to trademark “Johnny Football” following Manziel’s dominant freshman season in College Station.[80] Despite the fact Manziel would not be able to profit from his own image and likeness while maintaining his amateur status as a collegiate athlete, he was still able to keep the money he won in the lawsuit.[81] Manziel was successful in the lawsuit when the court ruled that his NIL and trademark had been infringed upon when another person profited without consent.[82] Interestingly, the NCAA allowed Manziel to keep the money that someone else made using Manziel’s NIL since it was not an orchestrated event intended to allow Manziel to profit, but the NCAA has suspended numerous players for receiving “improper benefits.”[83] Improper benefits include gifts, loans, discounted merchandise, and compensation for sports camps.[84] Furthermore, the NCAA allowed Texas A&M to sell jerseys with Manziel’s jersey number on them and allowed Texas A&M to use Manziel’s NIL in promotional activities.[85] These jersey sales and promotions undoubtedly earned Texas A&M revenue well in excess of the scholarship Manziel received.[86] Some may find the double standard for athletes and schools or the NCAA appalling. For example, AJ Green was suspended for four games for selling his jersey.[87] The only difference between Green’s jersey and the jersey that the University of Georgia sold in their bookstore was Green’s last name.[88] The difference in treatment of sales is far starker. The University of Georgia profited off of jerseys with Green’s number eight, while Green’s sale of his own jersey resulted in a four-game suspension and ultimately no compensation or profit.[89] For a school like Notre Dame that does not feature players’ last names on game-worn jerseys, there would be no difference between the jerseys sold in the bookstore and a college athlete’s jersey.[90] However, if a Notre Dame football player were to sell his own jersey the outcome of each sale would likely be similar to the outcome in the AJ Green scenario resulting in sanctions from the NCAA.[91]

COVID-19, Title IX vs. NIL:

            The major sports including football and basketball appear safe, but less popular sports like field hockey, wrestling, and volleyball are cut from major universities regularly.[92] The current popular enemy is COVID-19 taking over for Title IX, but the real fault may lie in the NCAA’s ability to make astronomical profits off of collegiate athletes’ NIL.[93]COVID-19 has produced budget nightmares for universities following revenue-producing event cancellations including March Madness 2020.[94] While Title IX was put into effect to help increase women’s participation in college athletics, some believe that it lessened male participation to gain equality in participation instead.[95] That is evidenced by many schools dropping male sports rather than adding a female counterpart.[96] This adds to the disadvantages many women already face in sports including the recent debacle in weight room differences[97] in the NCAA Men’s Basketball National Tournament vs. the Women’s Basketball National Tournament.[98]

            Stanford University set the tone for COVID-19 being public enemy number one on the blame list for reasons why colleges “have” to cut athletic programs.[99] On July 8, 2020, Stanford announced eleven sports would no longer have a home with the Cardinal.[100] Stanford cited the pandemic as the breaking point.[101] Stanford Cardinal Athletic Director Bernard Muir said the decision came after “exhausting all other viable alternatives” and that it was clear Stanford could not financially support 36 varsity sports at a nationally competitive level.[102] The decision was met with huge backlash and rightfully so considering how early on in the pandemic the announcement took place, not to mention the Cardinal teams cut included many national championship contenders.[103] For example, Stanford wrestling won the Pac-12 championship in 2019 and is annually ranked in the top-20 in the nation.[104] Furthermore, the cut programs produced 20 national championships and 27 Olympic medals.[105]

            Attending college during a global pandemic was hard enough, but being abandoned by the athletic department and the administration poured salt in the wounds.[106] The financial hardships of COVID-19 had not even come to fruition yet, and the teams were plenty successful with the current funding.[107] Additionally, as of October 29, 2020, Stanford wrestling alumni have raised over $10 million to save the program from extinction following the 2020-2021 season.[108]Despite the efforts, Stanford announced, “the decisions to reduce our sports offerings are final, and any future philanthropic interest in these sports may be directed towards supporting them at the club level.”[109] The devastating announcements point to the true motivation behind the elimination of the programs and that is the ability to make money.[110] The reality is that only the major sports have been able to produce revenue for universities.[111] Andy Schwarz, an antitrust economist, stated that Stanford was not losing money from the cut sports programs because most, if not all, of the scholarships were funded by endowments.[112] However, the sports were not producing the same revenue as football, and replacing the non-paying student-athletes with full pay non-athlete students would allow the school to keep the endowment money while also collecting tuition from more students. Furthermore, these universities can compound their profits by profiting off of the NIL of students in major sports without ever having to compensate them. Stanford is currently benefiting from gaining attention after Shane Griffith won the national title at the NCAA Wrestling National Championships at 165 pounds on March 20, 2021, despite lessened support from his college.[113] The lack of support included having the wrestling team practice outside, the team competing in all black singlets devoid of any mention of Stanford, increased stress knowing the student-athletes needed to find a new home if they intended to continue their athletic careers, and no mention of Griffith’s historic run until well after the three-day tournament had ended.[114]Stanford still gains the recognition and the media attention that comes with the national championship even though Shane Griffith competed in a less popular sport because of the outcry of support that has come from the athletic community throughout the United States.[115]

            Media rights produced 34.1% of the revenue in Power 5 (ACC, SEC, Big Ten, Big 12, Pac-12) schools.[116] This fact coupled with the reality that major sports drive the media rights deals in college athletics shows that the elimination of sports has nothing to do with funding, Title IX, or even COVID-19, and everything to do with profit-making ability. For example, the Pac-12 netted a $3 billion deal with Fox and ESPN networks for television and media rights in 2011.[117] The deal was signed for 12-years, meaning that Stanford and the rest of the Pac-12 are set to make an even larger payday in the next couple of years, especially with the constantly growing media world.[118] Another 9.2% of revenue for these same schools comes from royalties, licensing, and advertising while 19.5% comes from ticket sales.[119]

            Wrestling, like many sports, has increased its media presence.[120] FloWrestling has created an incredible platform allowing people across the country to watch collegiate matches.[121] FloWrestling streams thousands of collegiate wrestling matches each year, charging a monthly or yearly fee.[122] In essence, FloWrestling does exactly what ESPN and other major sporting networks do, reach large deals with the NCAA and member schools to profit off of student-athletes competing in sports.[123] These large profits are never seen nor shared with the collegiate athletes.[124]FloWrestling is not alone in the wrestling community as Trackwrestling, ESPN, the Big Ten Network, the ACC Network, and others also stream many wrestling matches each year making profits.[125] Furthermore, as a former Division 1 wrestler, I had matches broadcasted or streamed through these sites. I did not personally profit from my NIL that these sites use and even had to pay the same fees as anyone else to access the archived versions of my matches that these platforms have used to produce a profit. This further points to the possibility that schools and the NCAA are, for the most part, disinterested in possible NIL infractions and only interested in profit. This means the best chance for the survival of college athletics lies with NIL profits that schools can benefit from and has little to do with Title IX, financing teams, or COVID-19.

The Return of the College Football video game and its effect on NIL law in NCAA:

            Despite the damaged and severed relationship between EA Sports and the NCAA, the return of the college football video game may provide an additional potential revenue source for NCAA member schools. This future revenue source comes at a crucial time when schools are worried about the effects COVID-19 will have on institutions’ future financial situations. The return of the game will not solve all of the problems with NCAA sports, nor will it perfect NIL disputes in college athletics. While the NCAA may seem disinterested in solving NIL problems in college athletics, this does not mean the disputes are stagnating. The O’Bannon lawsuit has helped move the needle in the favor of allowing college athletes to take part at least partially in the revenue sharing produced by their NIL. The momentum of O’Bannon has made its way to Congress.[126] In September 2020, Rep. Anthony Gonzales[127] and Rep. Emanuel Clever introduced a bi-partisan bill revolving around NIL in college sports.[128] The proposed bill does not speak to the profits created by media rights, but it would allow college athletes to profit from some endorsement deals.[129] The proposal, named the Student Athlete Level Playing Field Act, would “prohibit a covered athletic association and institution of higher education from prohibiting a student-athlete from participating in intercollegiate athletics because such student-athlete enters into an endorsement contract.”[130] The proposal would be a huge win for NIL in college sports. Although it likely would only benefit the most famous college football and basketball players, the proposed bill would be a giant step in the right direction for NIL rules in the NCAA aligning more with American laws. The proposed legislation would force the NCAA to allow their student-athletes to be compensated for their NIL and would prevent the NCAA from continuing to benefit off of the monopoly they have created on profiting off of these student-athletes’ NIL.

Conclusion:

            EA’s college football video game will look significantly different given the ruling from O’Bannon and the status of EA’s relationship with the NCAA. The video game will be met with open arms by college football and video game lovers but appears likely to avoid NIL disputes entirely rather than creating a more realistic game and creating profit for collegiate athletes. Furthermore, O’Bannon and the proposed Student Athlete Level Playing Field Act have the opportunity to benefit college athletes but are still just the bare minimum when considering what equality regarding NIL rights would look like for athletes, member institutions, and the NCAA. NIL is a growing field of intellectual property law that hopefully will yield more equality in the battles student-athletes face every day, and hopefully limit the exploitation that can occur from the NCAA on all of the blood, sweat, and tears these athletes pour into their respective sports.


[1] Aritra Patra, FIFA 21: Meet the Man behind the Sensational voice of “EA Sports, it’s in the game” (Feb. 8, 2021), Talk Esport, available at

https://www.talkesport.com/news/fifa/ea-sports-its-in-the-game-voice-actor/.

[2] Brian Mazique, NCAA Football 14: Release Date, New Features, Rosters and Game Preview (Jul. 5, 2013), Bleacher Report, available athttps://bleacherreport.com/articles/1688589-ncaa-football-14-release-date-new-features-rosters-and-game-preview.

[3] Cam Weber, Update on College Football (Sep. 26, 2013), Electronic Arts, available at https://www.ea.com/news/update-on-college-football?mod=article_inline.

[4] Id.

[5] Id.

[6] O’Bannon v. NCAA, 802 F.3d 1049, 1079, (9th Cir. 2015).

[7] Alex Kirshner, Blame the NCAA, not Ed O’Bannon (Jul.13, 2018), Banner Society, available athttps://www.bannersociety.com/2019/8/15/20708592/ed-obannon-ncaa-football-video-games.

[8] Michael Rothstein, EA Sports to do college football video game (Feb. 2, 2021), ESPN, available at https://www.espn.com/college-football/story/_/id/30821045/school-plan-ea-sports-do-college-football.

[9] Jeremy M. Evans, Student-Athlete Brands in the Age of Name, Image, and Likeness (Dec. 1, 2020), American Bar Association, available athttps://www.americanbar.org/groups/intellectual_property_law/publications/landslide/2020-21/november-december/student-athlete-brands-age-name-image-likeness/.

[10] Mike Ozanian, Here’s the College Football TV Money At Stake For Each Conference And Network (Jun. 8, 2020), Forbes, available athttps://www.forbes.com/sites/mikeozanian/2020/06/08/heres-the-college-football-tv-money-at-stake-for-each-conference-and-network/?sh=1ee8ff317dc9.

[11] Colin O’Brien, Florida is latest state to sign NIL legislation into law (Jun. 13, 2020), News Tribune, available athttps://www.newstribune.com/news/sports/college/story/2020/jun/13/florida-latest-state-sign-nil-legislation-law/830677/.

[12] S. B. No. 206, Cali., (Collegiate athletics: student athlete compensation and representation), 2019.

[13] Senator Mayfield and Florida Senate Education Committee, The Florida Senate (2020), CS/CS/SB 646 — Intercollegiate Athlete Compensation and Rights, available at https://www.flsenate.gov/Committees/BillSummaries/2020/html/2187.

[14] Id.

[15] Id.

[16] Dillon J. Besser, The Forgotten Party in O’Bannon v. National Collegiate Athletic Association: How Non-Revenue Sports Operate in a Changing Intercollegiate Marketplace, 101 Iowa L. Rev. 2015 (2016).

[17] Id.

[18] Id.

[19] Matt Marshall, College sports cuts in the wake of Covid-19 are clouding the future of Olympics participation (Oct. 17, 2020), NBC News, available at https://www.nbcnews.com/news/sports/college-sports-cuts-wake-covid-19-are-clouding-future-certain-n1243803.

[20] Id.

[21] Id.

[22] Marc Edelman, By Denying Certiorari in O’Bannon v. NCAA, The Supreme Court Aids Future Reform To College Sports (Oct. 7, 2016), Forbes, available at https://www.forbes.com/sites/marcedelman/2016/10/07/by-denying-certiorari-in-obannon-v-ncaa-the-supreme-court-aids-future-reform-to-college-sports/?sh=4a509a79270f.

[23] Jon Solomon, Timeline: Ed O’Bannon vs. NCAA (Jun. 6, 2014), CBS Sports, available at https://www.cbssports.com/college-basketball/news/timeline-ed-obannon-vs-ncaa/.

[24] Id.

[25] Darren Rovell, Former College QB Has Strong Case Against NCAA & EA (Aug. 5, 2010), CNBC, available at https://www.cnbc.com/id/30605723.

[26] Katie Thomas, College Stars Sue Over Likenesses in Video Games (Jul. 3, 2009), The New York Times, available athttps://www.nytimes.com/2009/07/04/sports/04ncaa.html.

[27] Id.

[28] Star Ledger, Former Rutgers quarterback Ryan Hart sues video-game maker, report says (Jun. 30, 2009), NJ.com, available athttps://www.nj.com/news/2009/06/former_rutgers_quarterback_rya.html.

[29] Darren Rovell, Athletes whose likenesses appeared in Electronic Arts games will share a $60 million settlement (Mar. 15, 2016), ESPN, available at https://www.espn.com/college-sports/story/_/id/14980599/college-football-basketball-players-receive-average-1600-settlement-electronic-arts.

[30] Jon Solomon, Timeline: Ed O’Bannon, supra.

[31] Katie Thomas, Ex-Players Join Suit vs. N.C.A.A. (Mar. 10, 2010), The New York Times, available athttps://www.nytimes.com/2010/03/11/sports/ncaabasketball/11colleges.html.

[32] Id.; Jon Solomon, Significance of Texas Western’s 1966 NCAA title not realized at first (Feb. 26, 2016), CBS Sports, available athttps://www.cbssports.com/college-basketball/news/significance-of-texas-westerns-1966-ncaa-title-not-realized-at-first/.

[33] O’Bannon v. National Collegiate Athletic Ass’n, 8, 2010 WL 445190, (N.D. Cal. 2010).

[34] Id.

[35] Matt Smith, Former 49ers Craig Newsome Files Antitrust Against NCAA (Oct. 23, 2009), SF Weekly, available athttps://www.sfweekly.com/news/former-49er-craig-newsome-files-antitrust-lawsuit-against-ncaa/.

[36] Associated Press, EA dismissed from antitrust lawsuit (May 5, 2011), ESPN, available at https://www.espn.com/college-sports/news/story?id=6487782.

[37] Nancy Kercheval, Oscar Robertson Among Former Basketball Players Suing NCAA (Jan. 27, 2011), Bloomberg, available athttps://www.bloomberg.com/news/articles/2011-01-27/oscar-robertson-among-former-college-athletes-suing-ncaa-electronic-arts.

[38] Karen Gullo, Electronic Arts Must Face Ex-Athletes’ Antitrust Claims (Jul. 28, 2011), Bloomberg, available athttps://www.bloomberg.com/news/articles/2011-07-28/electronic-arts-must-face-ex-athletes-antitrust-claims-over-use-of-images.

[39] Id.

[40] Id.

[41] Jon Solomon, NCAA knew EA Sports video games used real players, e-mails from Ed O’Bannon lawsuit show (Nov. 13, 2012), Birmingham News, available at https://www.al.com/sports/2012/11/ncaa_knew_ea_sports_video_game.html.

[42] Jon Solomon, Ex-EA Sports producer: NCAA video games replicated real college players (May 8, 2013), Birmingham News, available athttps://www.al.com/sports/2013/05/ex-ea_sports_producer_ncaa_vid.html.

[43] Jon Solomon, Ed O’Bannon plaintiffs: EA Sports used actual game footage to create video game players (Jun. 20, 2013), Birmingham News, available at https://www.al.com/sports/2013/06/ed_obannon_plaintiffs_ea_sport.html.

[44] Id.

[45] Michael McCann, What Ed O’Bannon’s victory over the NCAA means moving forward (Aug. 9, 2014), Sports Illustrated, available athttps://www.si.com/college/2014/08/09/ed-obannon-ncaa-claudia-wilken-appeal-name-image-likeness-rights.

[46] Jon Solomon, Ed O’Bannon plaintiffs, supra.

[47] Darren Rovell, Players to receive $40 million (Sep. 27, 2013), ESPN, available at https://www.espn.com/college-football/story/_/id/9731696/ea-sports-clc-settle-lawsuits-40-million-source.

[48] Id.

[49] Id.

[50] Id.

[51] Darren Rovell, EA Sports settles with ex-players (Sep. 26, 2013), ESPN, available at https://www.espn.com/college-football/story/_/id/9728042/ea-sports-stop-producing-college-football-game.

[52] Id.

[53] EA Sports (@EASPORTS), Twitter (Feb. 2, 2021, 11:43 AM), https://twitter.com/EASPORTS/status/1356644353901539342.

[54] Chris Bengal, EA Sports plans to revive its college football video game franchise (Feb. 2, 2021), CBS Sports, available athttps://www.cbssports.com/college-football/news/ea-sports-plans-to-revive-its-college-football-video-game-franchise/.

[55] Dan Wolken, Blowout: Alabama routs Notre Dame for repeat BCS title (Jan. 7, 2013), USA Today, available athttps://www.usatoday.com/story/sports/ncaaf/2013/01/07/bcs-championship-notre-dame-alabama/1814443/.

[56] Jerran Anderson, 5 Reasons Why EA Sports NCAA Football Needs to Make a Comeback (Jun. 30, 2017), Fox Sports, available athttps://www.foxsports.com/stories/college-football/5-reasons-why-ea-sports-ncaa-football-needs-to-make-a-comeback.

[57] O’Bannon v. NCAA, 802 F.3d 1049, 1079, (9th Cir. 2015).

[58] O’Bannon v. NCAA, 7 F.Supp.3d 955, 1008, (N.D. Cal. 2014).

[59] Id.

[60] Id.

[61] Id. at 1009 and 989.

[62] O’Bannon v. NCAA, 802 F.3d 1049, 1079, (9th Cir. 2015).

[63] Id. at 1078.

[64] Id. at 1078-1079.

[65] ESPN.com news services, NCAA sues EA Sports (Nov. 21, 2013), CLC, ESPN, available at https://www.espn.com/college-football/story/_/id/10009545/ncaa-sues-ea-sports-collegiate-licensing-company.

[66] Martin Rickman, NCAA is suing EA Sports and CLC in wake of $40 million Ed O’Bannon settlement (Nov. 20, 2013), Sports Illustrated, available at https://www.si.com/campus-union/2013/11/21/ncaa-suing-ea-sports.

[67] ESPN.com news services, NCAA sues EA Sports (Nov. 21, 2013), CLC, ESPN, available at https://www.espn.com/college-football/story/_/id/10009545/ncaa-sues-ea-sports-collegiate-licensing-company.

[68] Marissa Payne, The NCAA’s $20 million video game settlement may set a new precedent for the O’Bannon case (Jul. 11, 2014), The Washington Post, available at https://www.washingtonpost.com/news/early-lead/wp/2014/06/11/the-ncaas-20-million-video-game-settlement-may-set-a-new-precedent-for-the-obannon-case/.

[69] ESPN.com news services, NCAA sues EA Sports, CLC (Nov. 21, 2013), ESPN, available at https://www.espn.com/college-football/story/_/id/10009545/ncaa-sues-ea-sports-collegiate-licensing-company.

[70] Kyle Boland, EA is getting back into college football without NCAA (Feb. 2, 2021), ars Technica, https://arstechnica.com/gaming/2021/02/eas-return-to-college-football-dodges-ncaa-player-related-legal-issues/.

[71] Id.

[72] Wadlaw Center, The Collegiate Licensing Company (CLC), Georgia Institute of Technology, https://licensing.gatech.edu/licensing/clc#:~:text=CLC%20is%20the%20nation’s%20leading,focused%20on%20each%20individual%20client (last visited Mar. 15, 2021).

[73] Eric Hansen, Notre Dame won’t be in EA Sports’ college football video game without player benefits (Feb. 22, 2021)South Bend Tribune, https://www.usatoday.com/story/sports/ncaaf/2021/02/22/notre-dame-wont-participate-ea-sports-college-football-video-game/4543815001/.

[74] Id.

[75] Id.

[76] Paul Myerberg, USA Today Sports, Manziel’s corporation files lawsuit to protect ‘Johnny Football’ (Feb. 25, 2013), available athttps://www.usatoday.com/story/gameon/2013/02/25/johnny-manziel-files-lawsuit-johnny-football-phrase/1946701/.

[77] Brent Zwerneman, NCAA: Johnny Manziel can keep lawsuit money (Feb. 26, 2013), My San Antonio, available athttps://www.mysanantonio.com/sports/college_sports/college_football/article/NCAA-Manziel-can-keep-lawsuit-money-4311416.php.

[78] Darren Rovell, Suit claims nickname infringement (Feb. 23, 2013), ESPN, available at https://www.espn.com/college-football/story/_/id/8977054/lawsuit-filed-claims-johnny-football-infringement.

[79] Id.

[80] Id.

[81] Id.

[82] Zwerneman, supra.

[83] Bailey Brautigan, Cam Newton and 10 College Athletes in Scandal: Is It Their Fault or the System? (Nov. 10, 2010), Bleacher Report, available at https://bleacherreport.com/articles/514177-10-college-athletes-involved-in-scandals-is-it-their-fault-or-the-system.

[84] NCAA Compliance, NCAA Bylaw 16.02.03., available at https://www.iwu.edu/registrar/NCAA_Compliance_ExtraBenefits.pdf 

[85] Darren Rovell, NCAA President: No Pay for Players on Jersey Sales (Dec. 22, 2011), CNBC, available at https://www.cnbc.com/id/45768248.

[86] Kristi Dosh, Manziel jerseys hardly making A&M rich (Aug. 9, 2013), ESPN, available athttps://www.espn.com/blog/ncfnation/post/_/id/80530/manziel-jerseys-hardly-making-am-rich.

[87] Mark Schlachbach, NCAA upholds A.J. Green’s suspension (Sep. 17, 2010)., ESPN, available at https://www.espn.com/college-football/news/story?id=5585220

[88] Chris Matcovich, A.J. Green of Georgia Bulldogs Suspended: Agents Must Also Be Held Responsible (Sep. 9, 2010), Bleacher Report, available at https://bleacherreport.com/articles/456369-georgia-bulldogs-aj-green-suspended-agents-must-be-held-responsible-also.

[89] Mark Schlachbach, NCAA upholds A.J. Green’s suspension (Sep. 17, 2010), ESPN, available at https://www.espn.com/college-football/news/story?id=5585220.

[90] Darren Rovell, NCAA President: No Pay for Players on Jersey Sales (Dec. 22, 2011), CNBC, available at https://www.cnbc.com/id/45768248. 

[91] Mark Schlachbach, NCAA upholds A.J. Green’s suspension (Sep. 17, 2010), ESPN, available at https://www.espn.com/college-football/news/story?id=5585220.

[92] Aishwarya Kumar, The heartbreaking reality — and staggering numbers — of NCAA teams cut during the pandemic (Nov. 6, 2020), ESPN, available at https://www.espn.com/olympics/story/_/id/30116720/the-heartbreaking-reality-staggering-numbers-ncaa-teams-cut-pandemic.

[93] Mark Zeigler, Column: Name, image and license, and unintended consequences in college sports (Apr. 30, 2020), The San Diego Union Tribune, available at https://www.sandiegouniontribune.com/sports/sports-columnists/story/2020-04-30/ncaa-name-image-license-budget-sports-nil-title-ix-athletes-pay-college-sports.

[94] Mark Emmert, Iowa athletics saw $3.5 million budget deficit in 2019-20 as ‘March Madness’ was canceled (Jan. 29, 2021), available athttps://www.hawkcentral.com/story/sports/2021/01/29/iowa-athletics-first-budget-deficit-four-years-covid-19-cancellation-ncaa-tournament-gary-barta/4300617001/.

[95] William Anderson, Title IX: How a Good Idea Became Higher Education’s Worst Nightmare, The James G. Martin Center (Apr. 29, 2016), available at https://www.jamesgmartin.center/2016/04/title-ix-how-a-good-idea-became-higher-educations-worst-nightmare/.

[96] Id.

[97] The Men’s tournament featured a state-of-the-art weight room with dozens of full racks while the Women’s tournament merely had one set of dumbbells.

[98] Hemal Jhaveri, The NCAA tournament’s women’s basketball ‘weight room’ is laughable compared to the men’s (Mar. 18, 2021), USA Today, available at https://ftw.usatoday.com/2021/03/ncaa-tournament-womens-weight-room-unequal-access.

[99] Alex Scarborough, Stanford to cut 11 varsity sports, cites pandemic as breaking point (Jul. 9, 2020), ESPN, available athttps://www.espn.com/college-sports/story/_/id/29429478/stanford-cut-11-varsity-sports-cites-pandemic-breaking-point.

[100] Id.

[101] Id.

[102] Id.

[103] Id.

[104] Dave Hirsch, Stanford Hosts 2020 Pac-12 Wrestling Championships (Mar. 2, 2020), Pac-12, available at https://static.pac-12.com/sports/wrestling/championships/2020%20Wrestling%20Championships.pdf.

[105] Ross Dellenger, ‘This Is for the Next Generation’: Inside the Fight, at Stanford and Beyond, to Save Olympic Sports (Feb. 12, 2021), Sports Illustrated, https://www.si.com/college/2021/02/12/stanford-save-cut-sports-movement-ncaa#:~:text=The%20university%2C%20after%20this%20season,swimming%2C%20men’s%20volleyball%20and%20wrestling.

[106] Id.

[107] Id.

[108] Tammer Bagdasarian, Keep Stanford Wrestling raises $10 million in attempt to preserve varsity status (Nov. 15, 2020), The Stanford Daily, available at https://www.stanforddaily.com/2020/11/15/sports-wrestling-10-million/.

[109] Id.

[110] Katie Murphy, East Carolina University is planning to cut some sports to balance athletic budget (May 18, 2020), The News & Observer, available at https://www.newsobserver.com/sports/article242816081.html.

[111] Greg Couch, NCAA Schools cry Poverty, Use Pandemic to Cut Sports they Didn’t Want Anyway (Sep. 7, 2021), Outkick, available athttps://www.outkick.com/ncaa-schools-cry-poverty-use-pandemic-to-cut-sports-they-didnt-want-anyway/.

[112] Id.

[113] Chris Bumbaca, Shane Griffith uses NCAA championship to highlight ‘Keep Stanford wrestling’ efforts (Mar. 22, 2021), USA Today, available athttps://www.usatoday.com/story/sports/college/2021/03/22/shane-griffith-ncaa-title-keep-stanford-wrestling/4799900001/.

[114] Sean Farrell, Inside the journey that brought Bergen County’s Shane Griffith a NCAA wrestling title (Apr. 6, 2021), North Jersey Media Group, available at https://www.northjersey.com/story/sports/college/wrestling/2021/04/06/keep-stanford-wrestling-inside-shane-griffiths-road-ncaa-title/7104712002/.

[115] Id.

[116] Kendall Baker, How college sports make money (Apr. 16, 2020), Axios, available at https://www.axios.com/college-sports-make-money-media-rights-football-38fe99b3-60f0-4bf1-b228-d650a7e1825d.html.

[117] Kabir Sawhney, Pac-12 announces $3 billion TV deal with ESPN and Fox (May 4, 2011), The Stanford Daily, available at https://www.stanforddaily.com/2011/05/04/pac-12-announces-3-billion-tv-deal-with-espn-and-fox/.

[118] Id.

[119] Kendall Baker, How college sports make money (Apr. 16, 2020), Axios, available at https://www.axios.com/college-sports-make-money-media-rights-football-38fe99b3-60f0-4bf1-b228-d650a7e1825d.html.

[120] Kyle Bratke, BTN and FloSports Announce New Distribution Agreement (Oct. 16, 2017), FloWrestling, available athttps://www.flowrestling.org/articles/6021899-btn-and-flosports-announce-new-distribution-agreement.

[121] Id.

[122] Id.

[123] Michael Wilibon, College athletes deserve to be paid (Jul. 18, 2011), ESPN, available at https://www.espn.com/college-sports/story/_/id/6778847/college-athletes-deserve-paid.

[124] Id.

[125] JD Rader, NCAA Wrestling Week Six Streaming Guide (Feb. 4, 2021), FloWrestling, available at https://www.flowrestling.org/articles/6880435-ncaa-wrestling-week-six-streaming-guide.

[126] Dan Murphy, Bipartisan federal NIL bill introduced for college sports, ESPN, https://www.espn.com/college-sports/story/_/id/29961059/bipartisan-federal-nil-bill-introduced-college-sports (Sep. 24, 2020).

[127] Many may remember Rep. Gonzales from his college football playing days at Ohio State before he was drafted by the Indianapolis Colts in the first round.

Anthony Gonzalez, Rep. Gonzalez Biography, U.S. House of Representatives, https://anthonygonzalez.house.gov/about/ (last visited Mar. 15, 2021).

[128] Dan Murphy, Bipartisan federal NIL bill introduced for college sports (Sep. 24, 2020), ESPN, available at https://www.espn.com/college-sports/story/_/id/29961059/bipartisan-federal-nil-bill-introduced-college-sports.

[129] Id.

[130] Anthony Gonzales, Student Athlete Level Playing Field Act (Sep. 14, 2020), U.S. House of Representatives, available at https://anthonygonzalez.house.gov/uploadedfiles/the_student_athlete_level_playing_field_act.pdf.

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