Virtual Payday Isn't Enough for College Athletes

Jonathan Mahler is a sports columnist for Bloomberg View. He is the author of the best-selling "Ladies and Gentlemen, the Bronx Is Burning," the basis for the eight-part ESPN mini-series. He also wrote "The Challenge," the winner of the 2009 Scribes Book Award, and "Death Comes to Happy Valley."
Read More.
a | A

Electronic Arts, the video game manufacturer, has decided to cancel its college football title for next year. Here's why, according to Cam Weber, general manager of the company's football division: "The ongoing legal issues, combined with increased questions surrounding schools and conferences have left us in a difficult position, one that challenges our ability to deliver an authentic sports experience."

The key word there is "authentic." What, exactly, is an "authentic" sports video-game experience? That's easy: one that includes the faces of recognizable athletes. For a long time, EA was able to simply cut those athletes out of the economic equation. A lot of businesses probably would have done the same: Why pay someone if you don't have to?

But then came the lawsuits. Over the summer, a circuit court of appeals rejected EA's argument that it had a First Amendment right to create that "authentic" video-game experience without compensating the players responsible for making it authentic. The case was Keller v. EA Sports -- Keller being Sam Keller, the former Arizona State University quarterback whose likeness was carefully reproduced, down to his facial features and playing style, in a 2005 EA game.

The Keller ruling set a clear precedent for a much bigger case: O'Bannon v. NCAA, an anti-trust suit filed in 2009 by former UCLA All-American basketball player Ed O'Bannon and a handful of other former college athletes who don't think the NCAA (and its business partner, EA) should be profiting from their names and images without sharing royalty payments.

EA realized it could no longer deny what was already self-evident: that the popularity of its games depends on players who didn't make a dime from them. So the company reacted as any business would, effectively saying, "How much do we need to share with you, players, to continue producing a successful product?" It found the answer: EA settled with the O'Bannon plaintiffs for a reported $40 million.

Of course, video games represent only a small portion of the money created by college sports. The plaintiffs in O'Bannon are also seeking damages from the NCAA for the use of their images in television broadcasts. A ruling could theoretically apply to every college player who has ever appeared on television (as well as their respective conferences and universities).

The NCAA, too, could have heard the message of the court of appeals, settled with the players and started the inevitable transition to a world in which college athletes have rights. But that would have been far too practical and forward-thinking for the NCAA. Instead, it's doubling down on its fetishistic devotion to the cult of "amateurism." After pulling out of its deal with EA, the NCAA is now beefing up its legal team and telling reporters that it's prepared to take this case all the way to the Supreme Court, where it will presumably argue that the cartel it presides over -- one that sets player salaries, endorsements and licensing fees at an even $0 -- is somehow beneficial to society. Whatever it takes, I guess, to avoid rewarding the real profit-generators of college sports.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.