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It’s a hot and humid day in the summer of 2013. You crave the cooler, crisp temperatures of the fall and itch for football season. To scratch that itch, you of course, after a long day at the office (or in the classroom), kick back, fire up your gaming console (a PlayStation 3 or Xbox 360) and settle into the latest version of EA Sports’ NCAA Football 14, featuring Michigan’s explosive dual-threat quarterback Denard Robinson on the cover. Little did you know, however, that this would be the last iteration of the beloved college football video game …
Until now.
Game developer EA Sports relaunched the series as College Football 25, released on PlayStation 5 and Xbox Series X/S earlier this month. The game’s resurrection arises after a saga of litigation, legislative efforts and policy reform governing intercollegiate athletics.
Before the hiatus, the prior era of EA Sports’ college sports video games depicted an authentic gameday experience, as NCAA member institutions licensed their own trademarks and intellectual property for the game.
But the NCAA did not license the use of student-athletes’ names, images and likenesses (NIL), and NCAA policy at the time prohibited student-athletes from receiving compensation for their NIL.
As a workaround, gameplay used “generic” avatars as players—but to describe the avatars as generic is a stretch. While not explicitly using a student-athlete’s name (instead just “QB #16” for example), the avatars would typically match a given player’s height, weight, skin tone, jersey number and athletic attributes.
The resemblance did not go unnoticed. Particularly, in April 2009, Ed O’Bannon, a star forward on UCLA’s 1995 national championship basketball team, witnessed a friend’s nine-year-old son playing EA Sports’ NCAA Basketball 09. The game showcased numerous “Classic Teams,” including a 1995 UCLA Bruins roster with “PF #31,” a 6’8”, 217-pound lefty senior, overall rating 87, with a bald head and medium skin complexion.
O’Bannon, at the time a marketing director for a Las Vegas car dealership (after a professional basketball career in the NBA and overseas), never approved of the use of his NIL and received no compensation for “PF #31,” even as a former student-athlete.
Aggrieved by this arrangement, in the summer of 2009, O’Bannon and another former student-athlete, Sam Keller (a starting quarterback at Arizona State and Nebraska), filed separate but similar class-action lawsuits in federal court in California.
Specifically, Keller brought a right-of-publicity claim against Electronic Arts, Inc. (the parent company of EA Sports) and the NCAA, challenging the use of the “generic” avatars as nonconsensual and misappropriated.
O’Bannon asserted antitrust violations against the NCAA, the Collegiate Licensing Company (which holds licensing rights for NCAA member institutions), and EA Sports in preventing compensation to former student-athletes for use of their likenesses. The two cases were consolidated.
Amidst the litigation, EA Sports discontinued its college basketball series in 2010 due to low sales and other market forces. As the cases progressed, in July 2013, shortly after the release of NCAA Football 14, the NCAA announced that it would not renew its licensing agreement with EA Sports.
Although EA Sports initially intended to continue the series under a different title without the NCAA name and logo, some conferences and schools had also declined to renew licensing agreements with EA Sports. By September 2013, EA Sports canceled development of the next game.
Alongside the cancellation, Electronic Arts and the Collegiate Licensing Company (CLC) settled with the class of O’Bannon and Keller plaintiffs to the tune of $40 million, and the NCAA remained as the sole defendant. In June 2014, the NCAA settled the right-of-publicity claims in the Keller case, awarding $20 million to certain Division I men’s basketball and football student-athletes from the years the games were sold, but proceeded to trial on the antitrust issues in O’Bannon.
Following trial, the district court ruled against the NCAA, and ultimately in 2015, the Ninth Circuit largely affirmed on appeal, concluding that the NCAA’s rules prohibiting student-athlete compensation for use of their NIL violated antitrust law (Section 1 of the Sherman Act).
But in fashioning a remedy, the court also concluded that as a less restrictive alternative, NCAA member institutions may provide scholarships to student-athletes beyond tuition, fees, room and board, and textbooks, now including cost of living expenses up to the full cost of attending the institution.
Parallel to the litigation on student-athlete publicity rights, additional lawsuits challenged the NCAA’s policies on student-athlete compensation. Most notably, in spring 2014, former West Virginia running back Shawne Alston brought a class-action antitrust suit similar to O’Bannon, alleging that the NCAA unlawfully capped the value of scholarships at less than the actual cost of attending school.
Alongside the additional legal challenges, state legislative efforts began further supporting student-athlete publicity rights, essentially overwriting NCAA policy. As the trailblazer in 2019, California passed the Fair Pay to Play Act, which, effective in 2023, prohibits any authority (including the NCAA) from banning a student-athlete from competition as a result of earning compensation from the use of the student-athlete’s NIL.
Following California’s lead, in June 2020, Florida passed similar legislation but with an earlier timeline, set to take effect in the summer of 2021.
That summer of 2021 produced game-changing moments in the legal landscape of college sports. The U.S. Supreme Court issued a unanimous opinion in Alston v. NCAA, affirming the Ninth Circuit’s conclusion that the NCAA’s limits on education-related benefits to student-athletes violated antitrust law.
Days after the Alston decision, the NCAA called an audible and adopted an interim policy allowing current student-athletes to benefit from NIL opportunities.
Although earlier in 2021, EA Sports had announced a new licensing agreement with CLC and began development of a college football video game without NCAA logos or player likenesses, the shifted landscape created a new opportunity for realism and authenticity in a returning version.
EA Sports then partnered with a group licensing company to facilitate integration of student-athlete NIL into the game, but this time with consent and compensation.
Now, student-athletes can opt-in to having their NIL used in the video game. Those who opted into College Football 25 (note that “NCAA” was dropped from the title) and are selected as players (EA Sports limited teams to 85 roster spots, so not every opt-in will be included) will receive a $600 payment and an early access deluxe edition of the game. Over 13,000 student-athletes have opted in to participating in the game, including all of the major stars.
Until recently, the only prominent holdout was Texas Longhorn backup quarterback Arch Manning, but he eventually caved and opted in days before the game’s release.
As we fire up our ninth-generation consoles, the virtual gridiron once again delivers the sounds of drumlines, deafening crowd noise, and popping shoulder pads to our residences.
The return of EA Sports’ College Football 25 not only marks a milestone for avid gamers and college football enthusiasts alike, but also symbolizes the real-world policy evolution in intercollegiate athletics and serves as a testament to the power of advocacy and legal reform.
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Dakota Slaughter is an associate in the Bose McKinney & Evans Litigation Group. Dusty Moloy is of counsel to Bose McKinney & Evans and a member of the Gaming Group.
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