It is no secret that the NCAA Football game series included actual players—jersey numbers, heights, weights, hometowns, etc.—an EA Sports producer admitted it under oath, and documents show the NCAA was well aware. So why not go whole hog, put their names on the backs of jerseys in the game, and cut the charade? The NCAA considered it.
The revelation comes from new documents unsealed yesterday in Ed O'Bannon v. NCAA, including the notes of an NCAA study group convened to explore how to increase the value of sponsorships (i.e. make more money). At that meeting, members discussed a push from EA Sports and the Collegiate Licensing Company, which licenses trademarks from more than 200 universities, conferences, and bowl games, to allow the use of player names and facial likenesses in the game.
"Using the rosters in the games, and maybe the names of student-athletes on jerseys in the game would be worthwhile," the NCAA document said in summarizing CLC's position. "Reasons: 1) EA would put into each game all players on the entire roster and they include over 140 Div. I schools in their games; 2) Rosters are embedded within the product/game (hidden, in a way) not on the cover/outside when you buy the product; and 3) this would wipe out 3rd party infringers — better to have schools/conferences and the NCAA control this."
In exchange, EA offered to insert "academic related features, APR, NCAA values etc." into the game.
In September of last year, EA and the CLC settled with the O'Bannon plaintiffs for a reported $40 million for using their likenesses without compensation. Two months later, the NCAA filed suit against its former co-defendants, alleging it was their screw-ups that led to the O'Bannon suit in the first place.
The proposal was just one of a number under consideration at the study group (AL.com and USA Today have full rundowns). The most eager of those present to expand the NCAA's definition of acceptable licensing appears to have been then-NCAA President Myles Brand. A summary of Brand's comments at the meeting lays out his position:
"We cannot exploit individual student-athletes, but it is not clear what exploitation is. ... We need to find out how to better work with corporate sponsors."
It adds: "Myles doesn't view this as liberalizing the rules — it is just making them more sensible, like all campuses have to find ways to work with the corporate community."
Part of that seems to be very selective policing of athlete likenesses. The documents unsealed yesterday contain an email chain between an NCAA executive and an LSU athletics department employee. You know those national champion season highlight DVD Sports Illustrated offers with a subscription? The LSU employee was concerned the 2008 edition, featuring the Tigers, might jeopardize players' eligibility.
The NCAA executive confirmed that such DVDs do violate NCAA rules, but told LSU not to worry about it:
Then-NCAA membership services associate director Leeland Zeller writes back to the LSU official that an NCAA rules interpretation "clearly addresses" and prohibits "the use of the DVD as 'premium' in conjunction with a subscription. ... Regardless, SI does this every year. If the school asks about it, they are advised to send a cease and desist letter, which preserves the eligibility of the student-athletes.SI ignores the letter and we all go on about our business."