The plaintiffs allege in that actorNCAA president Myles Brand overruled concerns of his caterover likeness issues in EA tvgames.(Photo: Rob Goebel, regular armyTODAY Sports)
In addition to adding active players to a lawsuit against the NCAA and two co-defendants concerning the use of college athletes' names and likenesses, lawyers for the plaintiffs in the case revisetheir complaint by adding a seriesof cleanhighly charged allegations.
NEWCOMERS: Six active athletes get in touchlawsuit
They mention peculiar(prenominal)alleged actionsnotonly the NCAA, scarcelyalso by each of the other defendants, television systemgranularmanufacturer Electronic Arts and the nation's leading collegiate postlicensing and marketing firm, Collegiate Licensing Co (CLC). Even comments of former NCAA president, the after-hoursMyles Brand, were spotlighted.
Some of the new allegations were included because in a ruling July 5 that allowed the addition of the new plaintiffs and the amended complaint, U.S. District Judge Claudia Wilkenexpresslylet the plaintiffs' lawyers address some of the arguments that had doby the NCAA, EA and CLC.
But the new material is likely to further escalate what has become an progressivelycontentious fight – a development that Wilken may not have anticipated when she alsowrote July 5 that the defendants "need not excitenew answers to the amended pleading unless they would like to respond to specific new allegations made by" the plaintiffs.
NCAA spokeswoman Stacey Osburn said Thursday night the intimacy"will reserve comment until we have had time to read the amended complaint."
And there was plenty to read, including allegations that:
-- Brand in "public remarks" in 2008, "conceded" that "(t)he honorableto license or sell one's name, image, and likeness is a billetright with economic value."
This addresses an argument by the NCAA during a June sense of hearingon whether the case should be certified as a class action that various state laws and legal precedents presupposethat athletes have no property rights for appearing in live,unscriptedevents – and thus have nothing that the NCAA or the schools are infringing upon when it comes to venturetelecasts and re-broadcasts.
-- EA and CLC allegedly "actively lobbied for, and obtained, administrative interpretations of those rules that permitted greater uncompensated exploitation of student-athletes' names, images, and likenesses. Where their statuesqueefforts were unsuccessful, EA and CLC obtained agreement from the NCAA to permit greater uncompensated exploitation of student-athletes' names, images, and likenesses onlythe rules."
This addresses an argument by EA and CLC that, as business partners of the NCAA, they were simply sidelinethe association's rules pertaining to the use of athletes' names and likenesses, so the plaintiffs have no right handof action against them.
And there was more on this topic, as the plaintiffs' lawyers peeto make a case that there was a federationamong the NCAA, EA and CLC "to usurp the student-athletes' name, image and likeness rights without compensation to the athletes."
In August 2007, when licensing of video games was being negotiated, EA allegedly "offered to establish a 'players' fund' for the use of the (student-athletes') names, images, and likenesses. CLC, negotiating on the NCAA's behalf, instead suggested that the money should go to the NCAA. EA agreed to pay a kicker to the NCAA in order 'to align interests and incentivize all parties to help micturatethe category with new rights.' EA made this offer contingent on 'no royalties . . . to a player fund.' "
While other allegations raised in Thursday's registerhad been mentioned in various previous filings, the new complaint pulled themin concertin a comprehensive way.
For example, the amended complaint alleges:
-- "Cory Moss, ranking(prenominal)Vice-President of CLC, wrote in 2009, soon after the O'Bannon lawsuit was filed, that '(s)hould we really receivework on a formal College Student jockstrapPlayers Association (current and former) to be ready depending on the results of the EA lawsuits?' The proposed CSAPA would have a Board of Directors and would do 'whatever is necessary to ensure that licensing and marketing rights of former collegiate student-athletes are protected and revenue opportunities are pursued.
' "
-- "All of EA's video game avatars were modeled in the same way and were fastento the characteristics of actual student-athletes, and show that EA wanted to use the names, images, and likenesses of all student-athletes corporalin its video games. The NCAA knew that student-athletes' names, images, and likenesses were used, exclusivelyapproved the practice dismantlethough its attempt to get 'expanded waivers' via bylaw changes failed."
-- "EA developed its NCAA-themed basketball and football gamevideo games by modeling every singleembodimentin the games on a real student athlete. EA triedhow gamers rated the avatars: 'how closely players look and feel (to) their real-life counterparts.' EA say'legal restrictions' internally thoemphasized that '(m)atching hair and body type' were permissible — and paramount. It painstakingly modeled each avatar to match a current or former student-athlete. EA's internal spreadsheets show that each avatar was matched to scadsof the real student-athlete's identifying characteristics."
-- "Former NCAA President Brand and (former NCAA marketing executive Greg) Shaheen made it clear to EA and CLC that they were 'on board' with EA's desire to use student-athletes' names, images, and likenesses. Throughout the Class Period, NCAA administrators noted 'real concern' that use of student-athletes' names, images, and likenesses in video games 'adds to the argument that student-athletes should be enrolland receive a cut of the profits, etc.'
"Numerous NCAA employees -- including those that were technically in instructionof approving EA's video games -- knew that the video games were depicting real (student-athletes), but were overruled by Brand and Shaheen.
"For example, Peter Davis, the former NCAA Director of incarnateAlliances, admitted that there are 'likenesses of student-athletes' in the video game. Atleastfive other high-level NCAA employees expressed concern roughthe 'obvious' use of likenesses. Despite these numerous internal misgivings, Brand and Shaheen were undeterred. ... Shaheen also worked "behind the scenes" to obtain a series of increasingly liberal "interpretations" of briskbylaws to give EA what it wanted."
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Materials taken from USA Today
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