Common sense—and a sense of right—prevailed months ago. Last September, Electronic Arts and Collegiate Licensing Company agreed to settle with current and former college athletes whose likeness was used in video games.
The settlement felt inevitable. When gamers played as "Texas A&M QB No. 2" in the NCAA Football franchise over the past few season, for example, it was the worst-kept secret that they were playing as Johnny Manziel. But, because it wasn't actually Manziel—even though the avatar was clearly modeled after him—the NCAA, CLC and EA Sports didn't have to pay him a dime.
That is no longer the case.
The money that current and former athletes will rightfully receive has been determined. Tom Farrey of ESPN.com reported on Saturday that EA and CLC have agreed to a $40 million settlement.
How was the number determined? Who gets paid and how much? What does this mean for the ongoing Ed O'Bannon suit and the NCAA?
Let's get to some answers.
The settlement is relatively straightforward, but like many big legal cases it took a while to come to fruition.
CLC and EA agreed in principle to settle with plaintiffs last year, but because of various issues the outcome was delayed. In November, the NCAA sued CLC and EA over their intent to settle. CLC and EA were originally listed as co-defendants in the O'Bannon case along with the NCAA. But, as the lawsuit progressed the two companies opted to jump ship and settle on their own terms, leaving the NCAA to fend for itself.
The $40 million settlement must be approved by U.S. District Court Judge Claudia Wilken.
For all the hand-wringing about paying athletes for the use of their image and/or likeness, the individual payout doesn't amount to much.
According to ESPN, athletes could receive as much as $4,000, though the Fort Worth Star-Telegram notes that individual payout could be "from as little as $48 for each year an athlete was on a roster to $951 for each year."
These are just estimates. How many apply for payment, the number of game appearances per player and when that player appeared in the game are major factors in determining how much they'll get.
Here's more from ESPN:
The suits mostly cover players who were on the rosters of Division I men's basketball or Football Bowl Subdivision teams that appeared in the EA Sports video games since 2003. If approved by Wilken, players will be alerted to the availability of payments and will have to register to get paid, using a formula based in part on how many years they were on those rosters. Plaintiffs' lawyers estimate that there are approximately 140,000 to 200,000 annual roster appearances in all three classes.
O'Bannon, former Arizona State quarterback Sam Keller and former Rutgers quarterback Ryan Hart will receive $15,000 for taking the lead in their respective lawsuits. Former West Virginia running back Shawne Alston will receive $5,000 for similar efforts, and numerous other plaintiffs will receive anywhere between $2,500 and $5,000.
According to Jon Solomon of CBS Sports, EA can cancel the settlement if a certain number of players "opt out." The number of players needed for that option was redacted from the public filing.
If those numbers seem like small potatoes, it’s because they are. However, the $40 million settlement is only part of the formula. The O’Bannon case seeks so much more than monetary damages. It attempts to change or otherwise eliminate the rules that prevent athletes from monetizing off of their brand.
For some players, that could be well beyond a few hundred bucks.
What Could This Mean for NCAA vs. O'Bannon Case?
It would be surprising—almost unfathomable, at that—for the NCAA to settle with the O'Bannon plaintiffs in the same fashion as EA and CLC. College athletic's governing body is the sole holdout in the case, which is scheduled to go to trial on June 9. (However, the NCAA has asked for a delay in the start date.)
Fundamentally, the NCAA and EA/CLC are different. Therefore, plaintiffs want different things from each. Since all the latter can do is offer compensation for past wrongdoings, that's what plaintiffs demanded.
But the O'Bannon case—and the NCAA's role in it—is bigger than video games. There is television revenue, rules and the power to make (or toss out) those rules at stake. As NCAA guru John Infante explained in a special contribution to the Sporting News in April, plaintiffs are looking for more than straight cash, homey.
It's not that the NCAA would be unwilling to settle, either, but its terms likely wouldn't be enough to satisfy the plaintiffs, per Infante:
From past cases, we know what the NCAA is likely to be willing to offer in settlement talks: a significant settlement fund ($100 million is more than doable for the NCAA) and relatively minor changes to NCAA rules like expanded benefits for athletes and cost-of-attendance scholarships. Maybe if push came to shove, the NCAA would take the significant step of offering to adopt rules allowing athletes to profit off their likeness or reputation.
But if you are the O’Bannon plaintiffs and are all but undefeated in the case, is that worth giving up what appears to be an increasingly likely shot at getting up to half of the millions in television dollars that the NCAA and conferences take in each year? For the O’Bannon plaintiffs, the only reasonable settlement discussion might be what percentage of television money athletes will receive, not whether they get any.
There are platforms—like cost of attendance—in which the NCAA has shown a willingness to negotiate. But there are also core principles of amateurism that are the reason the NCAA exists in the first place. Deviating from those in some capacity, while not impossible, is a last-resort move.
And the NCAA likely won't budge from that position unless it is ordered to by law.
Ben Kercheval is a lead writer for college football at Bleacher Report.