A Federal Court Just Called The NCAA's Video Games Bluff

The popular EA Sports NCAA football video game has been gone for two years, as the NCAA stopped licensing the game to the video game maker, fearing backlash in its pending federal antitrust cases.

However, there's ongoing hope that the game will eventually come back--and that outcome seems inevitable, if and when the resolution of said antitrust cases modifies or eliminates the association's amateurism rules, in turn allowing college football players to license their names, images and likeness to EA Sports and be compensated for doing so. In fact, EA Sports already wants to bring the game back under a pay-for-likeness umbrella. Only the NCAA and its member schools are holding up a return, with association president Mark Emmert sticking to the legal script and calling his organization's involvement in the video game business "inappropriate."

In one sense, Emmert has a point: sports video game involvement is what led to former UCLA basketball star Ed O'Bannon's landmark case against the NCAA, which last year resulted in a federal judge finding that the association's amateurism rules violate federal law. An appeals court upheld most of that finding on Wednesday, and if future cases strike down college sports pay-for-play and pay-for-likeness prohibitions entirely, a new EA Sports game becomes a whole lot more appropriate.

More importantly, colleges like cash. If they're ever forced to pay athletes, they're going to want more profit for themselves, too. Licensing school, conference and NCAA trademarks to a video game maker that does all the production work and takes all of the sales risk is essentially free money.

Small wonder, then, that today's O'Bannon appeal decision calls the NCAA's video game bluff:

The NCAA argues, however, that we cannot find that the plaintiffs have suffered an injury in fact based on lost compensation from video game companies because the NCAA has terminated its relationship with EA and is not currently working with any other video game maker. We disagree. The district court found that it is entirely possible that the NCAA will resume its support for college sports video games at some point in the future, given that the NCAA found such games to be profitable in the past, id., and that finding of fact was not clearly erroneous. Given the NCAA's previous, lengthy relationship with EA and the other evidence presented, it was reasonable for the district court to conclude that the NCAA may well begin working with EA or another video game company in the future.

Basically, the court doesn't believe the NCAA when it says you won't be getting your video games back. (Not mentioned by the court: the just-released NBA 2K16 features 10 officially licensed college basketball programs, including Arizona and Georgetown. If the association feels that video games are inappropriate, its member schools seems to feel otherwise).

When will games get to play NCAA Football again? Speculatively speaking, a full game probably won't come until a current antitrust case led by feared sports litigator Jeffrey Kessler that seeks full free agency for college athletes is resolved. NCAA 17 or NCAA 18 are probably a stretch; NCAA 19, not so much.