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Will Video Games Kill The Amateur Star?

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Former Nebraska quarterback Sam Keller started what could be a game-changer for the NCAA in 2009, filing a lawsuit against the NCAA and EA Spots for the use of his likeness in video games without compensation. Photo by Brian Bahr/Getty Images.
Former Nebraska quarterback Sam Keller started what could be a game-changer for the NCAA in 2009, filing a lawsuit against the NCAA and EA Spots for the use of his likeness in video games without compensation. Photo by Brian Bahr/Getty Images.

When NCAA president Mark Emmert hears the voice of Andrew Anthony, he probably gets downright nauseous. I wouldn’t be surprised if he’s littering his corporate compound in Indianapolis with memos and e-mails warning employees that further use of Anthony's name will be treated as a fireable offense. 

That’s what happens when the golden voice of a man that once helped bring millions of dollars to your organization has become an unfortunate summary of what might cost it billions.

Anthony, the familiar voice of EA Sports, reminds us "if it’s in the game, it’s in the game” every time we power up our video game consoles. And because the NCAA decided to put so much of itself and its former student-athletes in the video game, Emmert now finds himself in a court battle that could change the real game completely.

The legal battle started in 2009 when former Nebraska football player Sam Keller filed a lawsuit against the NCAA, Electronic Arts, Inc. and the Collegiate Licensing Company for the use of former student-athletes’ likeness in video games, photographs and promotions. Former UCLA basketball star Ed O’Bannon filed a similar suit just two months later. It didn’t take long for other former student-athletes to join the class-action lawsuit bandwagon. By 2010, the cases were consolidated into Ed O’Bannon v. NCAA. You can find a more comprehensive timeline of the legal proceedings here.

Through all of the motions filed by both sides, the NCAA somehow has claimed no wrong doing, but severing ties with EA last week was just another way of saying “we still don’t think we did anything wrong, but please excuse us while we try to wipe our fingerprints off the smoking gun.” (The fact that former athletes depicted on the classic teams of NCAA 2014 are now compensated for the use of their likeness doesn't help much either.) 

The 100-plus former student-athletes listed in the suit prove to be a real financial threat since the dozens of games that EA and the NCAA have produced only serve to compound the potential money owed, but they aren’t the game-changer; they’re seeking “damages.” 

The six young men that the NCAA really worry about are Jake Fischer, Jake Smith, Chase Garnham, Darius Robinson, Moses Alipate and Victor Keise. They aren’t seeking damages. They’re current players seeking their share of the sizable revenue pie. Since current players' exact likenesses aren’t used in the NCAA games, they are targeting TV revenues. 

The NCAA’s legal council hasn’t brought anything to the table that would lead you to believe they can mount a viable defense. Their first approach was to claim that paying players on individual rights “…would lose the very opportunity for the 99 percent of NCAA male and female student-athletes who do not compete in Division I men's basketball or FBS football to play a sport and get an education as they do today,” according to a statement released by NCAA executive vice president and chief legal officer Donald Remy.

The problem with Remy’s Glenn Beck-style fear mongering? It isn’t true. Not if you consult a study by The Drake Group, which concluded there's more than enough money to go around. 

NCAA lead attorney Gregory Curtner then tried to float the idea that it isn’t the rights to the sporting event they’re selling, but rather the exclusive rights to broadcast in the stadium. 

I suppose we’re all just lucky that football games and basketball games happen to get in the way of the cameras when we tune in to watch CBS, ESPN or Fox shoot riveting footage of empty stadia throughout the country.

A lawsuit brought to bear by former athletes and the use of their likeness in video games and promotional materials now has a new target: The very idea of amateurism in collegiate sports.

So how close are we to a potential revolution? 

According to ESPN legal analyst, Lester Munson, not very. Six current athletes don’t exactly constitute a movement. But now that the die has been cast, more certainly will join. They have plenty of time. The actual trial is at least a year away.

In the meantime, Emmert and the NCAA will continue to hope that they never have to regret Andrew Anthony letting all of us know “it’s in the game.”