It’s getting to be that time of year when it feels like football weather outside, but something is missing. For the first time in two decades, video gamers are suffering through a summer devoid of a new college football video game from Electronic Arts. At this point, the non-existence of NCAA Football 2015 has been the most tangible result of lawsuits filed by former college athletes challenging their status as unpaid participants in the NCAA sports empire.
When measured against the potential impact of the litigation, the lack of a single video game is relatively minor. A judge’s recent ruling in Ed O’Bannon’s lawsuit could set us on the road to the destruction of the myth of amateur collegiate athletics, for better or worse. But that’s the future. The impact on video games is happening now. According to research firm NPD, industry-wide revenue from new video game software was down 15 percent to $178 million in July, as compared to last year. Sales of newly launched games were down almost 70 percent, which was almost entirely the result of the lack of a new version of NCAA Football, according to the firm.
Video games have always been at the center of NCAA amateurism controversy. O’Bannon filed his suit after seeing a digital version of himself in a game and noticing that he wasn’t seeing any royalty checks. Still, the only money players have seen so far has come from gaming. Electronic Arts reached a $40 million settlement with players last fall in a related lawsuit, while also saying it would cancel its college football game. The NCAA later agreed to pay $20 million to some athletes who appeared in those games.
Electronic Arts began making college football games in 1993, but didn’t use the actual names of players and teams. It later signed licensing deals with the NCAA. For years, EA has technically violated these deals by including the likenesses of specific players, but has done so with the implicit approval of the association, according to the judge’s decision. The NCAA then let the licensing deal expire altogether, and began arguing that there was no such thing as a market for licensing players’ likeness in video games. This wasn’t overly convincing, given that an EA executive testified that the company was interested in paying for those rights in the future.
Could new agreements be reached if the current decision sticks? It seems likely. In professional sports leagues, EA negotiates deals with the leagues to use its logos and team names, and another with the players’ unions to use their names and likenesses. (Let’s just set aside the intellectual property controversy concerning video games and athletes’s tattoos for now.) For college athletes, judge Claudia Wilken suggests that the NCAA could negotiate deals with gaming companies and agree to set aside some portion of the proceeds to be split among players who appear in the games, paying them “limited and equal shares” of licensing revenue.
That doesn’t mean it will happen, though. As it stands, the future of EA’s college sports games remains very much in question. There could be appeals from one or both sides of the suit, creating legal uncertainty that is bound to discourage dealmaking. “My sense is they’ll be cautious for awhile, but we’ll see,” says Michael McCann, director of the Sports and Entertainment Law Institute at the University of New Hampshire. “They may perceive there’s strong market demand for this kind of video game and move forward.”
EA doesn’t isn’t exactly oozing urgency at this point. The company said last summer that it could make a version of the game without direct involvement of the NCAA, but gave that up after several conferences decided not to cooperate. In July the company told investors that it expects the new version of the Sims to replace any revenue it loses from NCAA College Football. And the new version of Madden comes out in less than two weeks.
