Electronic Arts Agreement Leaves NCAA Alone in Legal Battle

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September 27, 2013 Friday
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EA deal leaves NCAA alone in legal fight
Steve Berkowitz, @ByBerkowitz, USA TODAY Sports

On a day when legal wrangling over the use of college athletes' names and likenesses prompted video game manufacturer Electronic Arts to announce it will not publish a college football game for at least one year and settle a series of related lawsuits, the NCAA vowed to keep fighting on the issue for as long as necessary.

EA announced Thursday that it would not produce a college football game in 2014 and is "evaluating our plan for the future of the franchise." Within hours, a court filing and lawyers representing former and current college football and men's basketball players said an agreement had been reached to settle claims against EA in three presumptive federal class-action lawsuits.

Terms of the deal remained confidential pending their presentation to various courts, but it is likely to result in the landmark distribution of tens of millions of dollars to thousands of college athletes -- including current athletes -- whose names or avatars have been in EA games since the early 2000s.

The settlement also covered claims against the nation's leading collegiate trademark licensing firm, Collegiate Licensing Co. That left the NCAA as the lone defendant in a case whose named plaintiffs include former UCLA basketball star Ed O'Bannon, former Arizona State and Nebraska football player Sam Keller and five current football players.

Earlier Thursday, the NCAA's chief legal officer told USA TODAY Sports the association was gearing up for that case with even greater resources and resolve than it had before.

Donald Remy said the association had retained a new law firm for the purpose of trial and another, featuring a former U.S. solicitor general, to handle appeals.

"We're prepared to take this all the way to the Supreme Court if we have to," Remy said. "We are not prepared to compromise on the case."

Asked whether the likely cost of such additions to the NCAA's legal team had been approved by association governing panels involved with oversight of the NCAA's finances, Remy said, "This strategy has been discussed by all appropriate bodies and endorsed. The membership supports this handling of the case."

The NCAA's resolve seemed almost welcomed by lawyers representing the plaintiffs, who said they were looking forward to being able to concentrate their efforts on one case and one target. "Fantastic," Robert Carey said. "We'll see them in court."

Said Michael Hausfeld, another lead attorney for the plaintiffs: "The NCAA now stands alone in its hypocrisy. When you hire a new firm to deal with a trial and a firm to deal with an appeal, it doesn't say a lot about your confidence in your position."

Warren Zola, who teaches sports law at Boston College's Carroll School of Management, said Thursday's settlement left the NCAA in a difficult position.

"You are the last defendant standing in a case where everyone else felt that settling was the best solution," he said.

EA's decision to settle came days after its lawyers filed papers asking the Supreme Court to review adverse rulings it had received in a portion of the Keller-O'Bannon case and in a suit filed by former Rutgers football player Ryan Hart. Former West Virginia football player Shawne Alston more recently had filed yet another suit against EA.

As for EA, it is putting the brakes on a product that sells about 2 million units a year, according to stock analyst Michael Pachter. The FIFA soccer video game and Madden NFL game sell 12 million and 5.5 million units, respectively, CLC spokesman Andrew Giangola told USA TODAY Sports in July.

In July, the NCAA announced it would not renew its contract with EA after next year, citing business reasons and litigation costs. However, more than 150 colleges, conferences and bowl games approved a three-year contract extension with EA. The only impact at the time was that the game would no longer be called "NCAA Football" but rather "College Football," with each school or league continuing to decide whether to opt in or out through CLC.

"This is as profoundly disappointing to the people who make this game as I expect it will be for the millions who enjoy playing it each year," Cam Weber, the general manager of American football for EA Sports, wrote in statement posted on the company's website.

The statement went on to say: "We have been stuck in the middle of a dispute between the NCAA and student-athletes who seek compensation for playing college football. Just like companies that broadcast college games and those that provide equipment and apparel, we follow rules that are set by the NCAA -- but those rules are being challenged by some student-athletes. ... 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, which is the very foundation of EA Sports games."

Contributing: Brent Schrotenboer

September 27, 2013

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