Does that player in the video game look familiar

Fifteen years after Ed O'Bannon's groundbreaking lawsuit, college athletes continue to benefit from greater control of their name, image and likeness

As an elder Millennial, I remember waiting each year for the announcement of the cover athlete for EA Sports' collection of college sports video games. As CU celebrates Travis Hunter's inclusion on this year's cover, it's a good time to look back at the fight for student-athlete compensation that led to the reintroduction of the NCAA College Football video game series.

On July 19, thousands of video game players fired up their consoles and, for the first time in 11 years, could build a dynasty as their favorite college football program. However, the lawsuit that led EA Sports and other video game developers to abandon development of college sports video games to avoid further lawsuits helped college athletes gain control of their name, image and likeness (NIL) and further compensation, altering the financial power structure in college sports.

In 2009, Ed, O'Bannon-a former UCLA standout named Most Outstanding Player in the 1995 NCAA basketball tournament, which UCLA won-was playing EA Sports' NCAA Basketball 09 when he noticed a starting forward on the team had his same attributes, looks and number, even though he was not named in the game. It was common for sports video games to mirror classic teams-including, in this instance, the 1995 UCLA Bruins.

Sonny Vaccaro, a legendary basketball marketer, convinced O'Bannon to file a lawsui t alongside 19 other former college basketball players, including athlete labor and civil rights advocates Oscar Robertson and Bill Russell. In 1970, Robertson, then-president of the NBA players' association, filed an antitrust suit against the NBA to bring free agency to the NBA, while Russell led a boycott during a 1961 preseason game after several teammates were denied service in segregated Lexington, Kentucky. Both Hall of Famers were part of the boycott of the 1964 NBA All-Star Game that led to the NBA recognizing the player's union.

Along with signing Michael Jordan to Nike, and being played by Matt Damon in the film Air, Vaccaro has long been an advocate for amateur athletes. O'Bannon was an ideal lead plaintiff given that the image in the game was undeniably him, not only matching his height, weight, shaved head and skin tone, but also his left-handedness. O'Bannon was no longer in basketball, so he didn't risk the retribution that Robertson and Curt Flood, the legendary baseball player who challenged the Reserve clause and helped bring free agency to professional sports, both faced.

The case went to trial in June 2014, and on Aug. 8, Judge Claudia Ann Wilken of the Northern District of California ruled that withholding compensation to student athletes was a violation of antitrust laws. She cited NCAA v. Board of Regents of the University of Oklahoma, which ended the NCAA's exclusive control of college football television rights 30 years earlier. Immediately before the trial, EA Sports and the Collegiate Licensing Company settled for $40 million, while the NCAA was ordered to pay more than $42 million before appeal-but more importantly, this set the stage for a radical change in college athlete compensation and the structure of college athletics.

The Ninth Circuit Court of Appeals ruled in 2016 that NCAA rules were an unfair restraint on compensation, but amateurism was an important concept to uphold and all compensation needed to be educationally related. As O'Bannon and the other plaintiffs waited for the trial, decision and results of the NCAA appeal, a number of other current and former student athletes also filed suit. Eventually, those lawsuits were combined into a class action suit, NCAA v. Alston, with Judge Wilken ruling against the NCAA and confirming that the organization placed an unfair restraint on compensation.

In 2019, California passed the first state law that permitted athletes to be compensated for NIL; the NCAA began allowing such compensation in 2021, although laws related to NIL still vary by state.

In 2021, the Alston case reached the U.S. Supreme Court, whose majority decision stated that blocking compensation beyond educational benefits was an antitrust violation, ultimately ending the O'Bannon case seven years after Wilken's original decision. Wilken also heard the recent case House v. NCAA, in which the defendants-including the power conferences ACC, SEC, Big 10, Big 12 and Pac 12-agreed to a settlement allowing revenue sharing between schools, conferences and student athletes. The House case also ended scholarship limits, instead instituting roster caps and potentially opening up to nearly 800 more scholarships for Division-I schools.

Several cases are still undecided, including the Dartmouth College Basketball players' lawsuit, Johnson v. NCAA, which is another effort for college athletes to be recognized as employees of the school, which is supported by the National Labor Relations Board. There is another lawsuit that was filed by former University of Kansas guard Mario Chalmers and other former players immediately after the House settlement. Chalmers and his co-claimants allege that the NCAA and media partners utilize the images of former athletes without permission to market college sports and March Madness.

No single lawsuit can untangle the web of NCAA control that schools and athletes have been challenging for nearly half a century. It is also important to note much of this has been driven by the growth of media money, first through television rights and now branding and expanded access through digital media, which includes video games, streaming and social media platforms.

The NCAA still remains one of the most influential sporting organizations in the world, as evidenced by the Summer Olympics and Paralympics, in which hundreds of athletes earned medals in Paris after training at NCAA-affiliated universities. As these successful athletes bring attention-and money-to their schools, they deserve a fair share of the revenue. It is important not to forget Ed O'Bannon's role in facilitating a more equitable compensation system for student-athletes.

Top image: The cover of EA Sports' College Football 25, featuring Travis Hunter in the center. (Photo: EA Sports)

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