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Former Husker sues NCAA and video game giant

By BRIAN CHRISTOPHERSON / Lincoln Journal Star

Friday, May 08, 2009 - 12:15:48 am CDT

His collegiate football days may be in the rear-view mirror, but say this about Sam Keller: He’s still in the mood to take on some big-name opponents.

The former Husker quarterback is suing the Electronic Arts video game company and the NCAA in a class-action complaint filed this week in federal court in San Francisco. 

According to the complaint, the suit “arises out of the blatant and unlawful use” of student-athlete likenesses in EA Sports video games.

Story Photo
Sam Keller makes his entrance to Memorial Stadium for the last time before the start of the last home game of the 2007 season in this November, 2007 file photo. (Ted Kirk)

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Steven M. Sipple and Brian Christopherson seem to think Sam Keller's class-action lawsuit has some merit. (Anthony Roberts / JournalStar.com)...

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“With rare exception, virtually every real-life Division I football or basketball player in the NCAA has a corresponding player in Electronic Arts’ games with the same jersey number, and virtually identical height, weight, build and home state,” the lawsuit claims. “In addition, Electronic Arts often matches the player’s skin tone, hair color and often even a player’s hair style.”

Though EA games do not include players’ names, Keller’s suit states that the company allows easy access for gamers to upload entire rosters that include the names and information specific to those players.

The suit further contends that the NCAA and its licensing arm, Collegiate Licensing Company, have approved such use of players’ names and likenesses, which clashes with the NCAA bylaw that prohibits commercialization of a student-athlete’s name, picture or likeness.

“Although it describes itself as ‘committed to the best interest … of student- athletes,’ the NCAA’s true interest is in maximizing revenue for itself and its members, often at the expense of the student-athletes,” the lawsuit states.

Keller’s Arizona-based lawyer, Rob Carey, told the Journal Star on Thursday that the 24-year-old is not looking for compensation.

“What motivated him is he’s bound by these rules where the NCAA says, ‘Don’t use your likeness and we won’t use it either.’ And then the NCAA turns around and signs an agreement where they get royalties off of these games,” Carey said.

“So the NCAA kind of does this snooker where they bring the players in and then they look the other way when EA Sports presents to them a game that has players that look, miraculously, just like every real player. So that’s what frosted him.”

The claim has generated “a ton of response,” Carey said. Software people, business people, sports people. He’s heard from them all.

“Nobody likes the idea that you’re taking something that’s not yours, something that’s protected in America, which is the right of publicity of your own image, and using it without your permission to make money,” Carey said.

Keller, currently living in Phoenix, finished his college career at Nebraska in 2007, starting nine games as a senior after transferring from Arizona State.

Keller’s claim cites several specific examples, ranging from high-profile players such as former Michigan offensive lineman and NFL lottery pick Jake Long to lesser-known individuals such as Kent State running back Eugene Jarvis.

The lawsuit details that the real-life Jarvis wears No. 6 for Kent State, is 5-foot-5, 170 pounds,  a redshirt junior and comes from Pennsylvania. On EA’s video game, No. 6 for Kent State has the same height, weight, class standing and home state.

Former Kansas State quarterback Josh Freeman is also acknowledged. The K-State player wearing No. 1 on the EA video game wears an arm sleeve just like Freeman did.

Electronic Arts, which is based out of Redwood, Calif., and produces the very successful NCAA Football, NCAA Basketball and NCAA March Madness games, has declined comment for the time being.

EA Sports sold 2.5 million NCAA Football games last year, according to Carey. For the 2008 fiscal year, EA reported net revenue of $4.2 billion. 

An NCAA spokesman expressed confidence that the NCAA would be dismissed from the case.

“Our agreement with EA Sports clearly prohibits the use of names and pictures of current athletes in their electronic games,” the spokesman said. “We are confident that no such use has occurred.”

Others weren’t so sure.

In analyzing Keller’s claim, CNBC’s sports business reporter Darren Rovell said: “I’ve seen many lawsuits brought about by student-athletes in my day and this is probably the best case I have ever seen constructed.”

Keller’s lawsuit quickly became a hot topic on Husker message boards and local sports radio. Lincoln attorney Vince Powers listened to people chat about it all the way on his drive back home from Omaha on Thursday afternoon.

Powers said he thinks Keller has a strong case, and wouldn’t be surprised if there’s ultimately a settlement out of court.

“You have to put it in context,” Powers said. “Division I student-athletes are in many ways revenue producers. So if (Keller) can’t profit off his own image, why would someone else be able to do that? ... The bottom line is the only people who should make money off your likeness is you.”

Of course, college football video games have been around for a couple decades, and it’s probably true that many players enjoy the fact that their likenesses can be found on them.

Powers said a simple solution would be to just ask  college athletes each year if they’d consent to having their likenesses on a video game.

“Most would probably say yes so I could show that to my kid 20 years from now,” Powers said. “So I don’t think this is earth-shattering. But it’s like anything  in life: If you ask me, I’ll probably say yes. But if you just take it from me, I’m probably not going to be happy.”

Reach Brian Christopherson at  bchristopherson@journalstar.com or 473-7439. The Associated Press contributed to this report.


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