Jay Bilas, the ESPN college basketball analyst, had a terrific series of tweets in 2013 that laid bare the hypocrisy of the NCAA. Shortly after that organization started an investigation into Texas A&M quarterback Johnny Manziel for apparently profiting from his autograph, Bilas fired off a relatively simple rejoinder:
The fact that the NCAA profits wildly from football and basketball stars while paying them nothing but company scrip has been known for a long time, but the brilliance of Bilas’ tweet is that it showed exactly how shameless they are in exploiting their unpaid labor force. Along with all the TV and ticket revenue, they bypass their “no names of amateur athletes on jerseys!!” facade by happily directing customers the exact jersey of the exact player they want. Meanwhile, they have the gall to police these players if they want to make a little money for themselves. It’s a great business model, as long as you don’t have a shred of decency: Rake in millions on the back of unpaid employees, then punish them if they try to buck the system. After a few more tweets, Bilas shamed the NCAA into shutting down the search bar in its online shops. Nevertheless, the practice continues.
Back when EA Sports made college football videogames, they operated using the same winking tactics. They’d pay the NCAA big money for licensing rights, and while the players in the game wouldn’t have names, they would be unmistakable for any college football fan. If you were playing as Texas A&M in 2013, for instance, your quarterback would be a fast white guy with the same exact jersey number and body type as Johnny Manziel. In other words, they were using the players’ likeness without permission.
That changed in 2013, when Ed O’Bannon brought a suit against EA Sports (and the NCAA), which culminated in a $40 million settlement. The videogame company was prepared to continue their college football series and was willing to pay players for their likeness, but the NCAA wouldn’t allow it—of course they wouldn’t, because it would start a slippery slope that might actually see “student athletes” receive actual compensation—so the series was dropped because there was no way for EA Sports to continue producing their games without getting sued.
Until now. EA just announced plans to renew the series, but this time they’re cutting out the NCAA. Instead, a partnership with the “College Licensing Company” means they’ll get to use various universities, their stadiums, uniforms, mascots, and etc. The other big difference is that they won’t use player likenesses, and in fact you’d expect them to go out of their way to ensure that the players on the videogame are completely dissimilar to the actual players on the actual teams. Make no mistake, though—even though this isn’t going directly through the NCAA, it’s still a scab action by EA Sports.
Why? Because it profits off the institution of college football without addressing the massive disparity in how much the NCAA makes off the backs of its players (hundreds of millions) with how much it pays them (nothing). It’s still making money from a system that boils down to indentured servitude, it still feeds into the mythos of that system, it still bolsters that system, and it’s still highly immoral.
“Cutting athletes out of this reboot so they aren’t responsible for paying them for their likeness is a grave injustice,” Sen. Chris Murphy (D-Conn.) said, and he’s absolutely right. The ideal outcome here is for the NCAA’s ridiculous “amateurism” model to collapse (if you want a great longread on the bizarre historical origins of the system and how it gained such prominence, Taylor Branch’s 2011 Atlantic piece is terrific), and that may be in the offing. With Democrats controlling Congress, so-called “name, image, and likeness” (NIL) legislation could be passed soon, and senators like Murphy and Cory Booker (D-N.J.) have been beating the war drums for a while. Here’s what Booker, who was also a tight end at Stanford, told Sports Illustrated:
“Now that we’re in the majority, I’m telling you right now, I will make sure in every way I can that as we deal with NIL, that any legislation fundamentally includes other aspects of an athletes’ bill of rights.”
That could mean allowing endorsements (California is already pushing hard in this direction), stripping the NCAA of antitrust exemptions, instituting healthcare and revenue-sharing for athletes, and, as—this is the part that’s relevant to videogames—allowing the players to form a union to collectively bargain.
In professional leagues like the NFL, the players’ union bargains with outfits like the Madden franchise for likeness rights, and once the deal is hammered out, the union takes a fee and every player gets a cut. In a perfect world, college players would be able to do likewise, at which point they’d be able to collect a fee for allowing their names and numbers and physical attributes to be used in a videogame like EA Sports College Football. The NCAA is adamantly against this, of course, since collective bargaining power could derail their entire model of indentured servitude, but the overwhelming trend is flowing in that direction, and today it only seems like a matter of years.
In the meantime, anything that profits directly from that system, even if it doesn’t go strictly through the NCAA itself, is by definition propping it up against the historical tide. To make money off of American college football while the players are denied anything close to their fair share is morally suspect, and EA Sports would have been better off waiting until the situation changes. Or, better yet, using their influence to antagonize for that change, and adding their significant power to the side of economic justice.
Shane Ryan is a writer and editor. You can find more of his writing and podcasting at Apocalypse Sports, and follow him on Twitter here .