On February 20, Federal District Court Judge Claudia Wilken ordered that 18 documents previously filed with the court be provided to the public. The documents, which had been filed "under seal" by O'Bannon and other players as part of a motion, were deemed to not to have met the standard needed to remain confidential.
Those documents were released Wednesday, providing hundreds of pages of new material for those watching the O'Bannon case. The trove, mostly originating from the NCAA or Electronic Arts and obtained by the O'Bannon plaintiffs in discovery, highlight many of the contradictions in the NCAA's case and provide further insight into the NCAA's knowledge of EA's use of player likenesses.
Here are four things we learned.
1. EA just wanted its games to be like television, which proves the point.
The biggest revelation from the new documents is that Electronic Arts and the Collegiate Licensing Company asked the NCAA to allow for the use of player names and faces in video games way back in 2007. EA specifically wanted to use team rosters in the game and player names on jerseys, and eventually incorporate "facial likenesses" in stages to the game.
The most interesting aspect of EA's request is its rationale, that it would simply be doing what the television broadcasts were already doing:
EA requested the ability to represent college athletes in the games "just as they are shown on TV broadcasts," according to the NCAA document. "This means putting student-athlete names on rosters and on jerseys in the game, and secondarily using facial likenesses (this could be done in stages)."
This is precisely the argument that the O'Bannon plaintiffs have been making. They argue that the use of player likenesses in the NCAA-related video games pales in comparison to the use of player likenesses in televised games.
The NCAA, conferences, and schools readily permit their television partners to use player likenesses, permission that is denied to anyone who does not pay millions for broadcast rights. The players have said they deserve a cut of those rights, because it is their likenesses that are making those broadcast rights valuable. EA's request has only confirmed that.
2. Cease and desist j/k lol
It used to be that a Sports Illustrated subscription came with a football phone. The advent of cell phones made the football phone less attractive, so SI began distributing DVDs of championship teams to new subscribers.
In 2008, it offered an LSU football championship DVD, which is a fairly blatant violation of likeness usage rules. An LSU official asked NCAA associate director Leeland Zeller if this would make the players included in the DVD ineligible, as NCAA regulations would dictate. Zeller's response? Sure it's a violation, but don't get in the way of the gravy train:
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."
The cease-and-desist letter from the school is apparently enough to preserve eligibility for any players involved, so the school's interest ends there. And with Sports Illustrated presumably paying for the video footage used, the NCAA is getting its cut. So long as nobody is hurt, there's no enforcement of the obvious violation.
Remember that the next time your team's players are forced to repay $3.10 for eating too much pasta.
3. Brad Nessler didn't know those names by accident.
Before game systems had WiFi access, the rosters on NCAA video games had to be entered by memory card exchange or hand-typed, yet the in-game announcers always seemed to know even the most difficult of names once those rosters were in place.
The fact that in-game announcer Brad Nessler could properly pronounce "Leinart," or that you were recruiting Steve Tebow at defensive tackle in the fourth year of your dynasty, was not by accident:
"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 imbedded [sic] 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."
EA and the CLC argued that the "hidden" rosters were already there, so extending that to include player names on jerseys would only bring it into the open. Anyone who played the series during the mid-aughts knows exactly what EA meant.
This also shows that the NCAA knew that the rosters were implicitly part of these games going back to at least 2007, a fact that could be an issue in the NCAA's claim against Electronic Arts and the CLC. The NCAA's claim against the video game manufacturer -- brought after EA entered a settlement with the players this fall -- alleges that it was EA's mistakes that could lead to NCAA liability. The NCAA's knowledge of, and fairly explicit consent to, EA's likeness usage could make it difficult for its claims to survive.
In May 2013, a former EA Sports producer admitted under oath that the company replicated real players, and a company executive claimed the NCAA approved matching virtual jersey numbers to real numbers.
4. The NCAA is why you still have to make that "academic prestige" recruiting pitch in NCAA Football dynasty mode.
One of EA's proposed concessions to the NCAA for the right to use player likenesses? Including "academic-related features" in the game.
In exchange for more authentic video games, EA offered to recommit to inserting NCAA-requested elements like "academic related features, APR, NCAA values etc.," the document said.
If there's one thing that would make that Heisman mode even better, it's having to spend an hour in study hall doing multiplication tables. This also explains the disciplinary features in some of the older versions of the game, when you would have to sit your starting quarterback because he broke a rule. You could pretend he was caught throwing pumpkins off an overpass.
Yet, this again has a legal consequence. EA felt it was worth bargaining for player rights by giving the NCAA something it wanted. Such an act shows that the player likenesses had at least some value, a key part of the players' case that has been fought at every turn by the NCAA.
How valuable are the player names and faces? Valuable enough to make the game boring, and it is the job of expert witnesses to say how much that could be.