•••
In one suit, former Arizona State University and University of Nebraska quarterback Sam Keller contends that Electronic Arts, makers of the EA Sports line of games, "intentionally circumvents the prohibitions on utilizing student-athletes' names in commercial ventures by allowing gamers to upload entire rosters, which include players' names and other information." Keller brings up the Web site GameRosters.com, which has files for each school that can be uploaded into the game.

According to the suit, "Once uploaded, the default jerseys in the game that contain only players numbers are replaced with jerseys that contain both the player's actual name and actual number and in-game announcers then refer to players by their real names."

Keller isn't the only former student-athlete trying to take a stand. Former Rutgers University quarterback Ryan Hart, and Troy Taylor, who played football for the University of California, have also filed suit against Electronic Arts. The lawsuit alleges that Hart and Taylor never authorized their names or images to be used by the video game company and accuses Electronic Arts of "unjust enrichment."

A third suit, filed by former UCLA basketball player Ed O'Bannon, extends beyond the use of student-athletes' images in video games to include DVDs, photographs, and apparel. O'Bannon says the NCAA has student-athletes illegally sign over their rights to the commercial use of their images and doesn't share any of the proceeds.

"While the NCAA, its member conferences and schools, and its for-profit business partners reap millions of dollars from revenue streams ... former student-athletes whose likenesses are utilized to generate those profit centers receive no compensation whatsoever," the suit claims.

But will the claims hold up? According to a story published by Inside Higher Ed, Michael McCann, a professor at the University of Vermont Law School and a legal expert for Sports Illustrated, believes the fact that O'Bannon's suit focuses on all uses of athletes' images, not just those in video games, strengthens his case. McCann says the stakes in the case are "extremely high" and a ruling in favor of O'Bannon could "substantially change" the relationship between the NCAA and its student-athletes.

"A victory for O'Bannon might necessitate the creation of a bargaining agreement between the NCAA and its athletes," writes Inside Higher Ed's David Moltz. "Also, though no specific damages were enumerated in the complaint, (McCann) suspected that such a ruling would force the NCAA to pay 'millions of dollars' as damages are tripled under federal antitrust law."

While the case does have legs, it is by no means an open and shut deal.

"Earlier this year, the NCAA said that its players have the right of publicity," McCann told Inside Higher Ed. "If they have the right to publicity, then it's fair to ask, 'Why aren't they being compensated?' Though the NCAA is probably concerned by the claim, they'll have legal arguments that are strong, relating to their mission of amateurism. For instance, with an image of Ed O'Bannon next to the hoop in a title-winning game, he clearly has a right of publicity. But, maybe he's waived it in his [agreement] with the NCAA. ... There's no easy answer in this case."

Other athletes have had success in similar cases, including a group of retired NFL players who sued their union for allowing Electronic Arts to use their likenesses in a video game without compensation. A jury awarded more than 2,000 retired players $28.1 million, though the figure was later reduced to $26.25 million in a settlement.

Richard Karcher, Director of the Center for Law and Sports at the Florida Coastal School of Law, says the case is more serious for college athletes.

"It's more egregious when third parties are profiting off of amateur athletes," he told the New York Times.

According to USA Today, O'Bannon did not consider filing suit until he was approached by former shoe company executive Sonny Vaccaro, who is now serving as an unpaid consultant in the case.

"Questions will finally be answered," Vaccaro told USA Today. "I need these people--the NCAA--to explain how they can rule over (athletes) and nobody questions them."

In a recent statement, O'Bannon said he wasn't sure if college athletes should be paid while they're in school, but that isn't the point of the lawsuit.

"My biggest thing right now is, once we leave the university and are done playing in the NCAA, one would think we'd be able to leave with our likeness," he wrote. "But we aren't able to. If you don't take your likeness with you, you should at least be compensated for every dime that is made off your name or likeness. That's where this lawsuit comes in. It's been a long time that we have been exploited."

The NCAA, meanwhile, has defended its position and is confident the suit will eventually be dismissed.

"Our agreement with EA Sports clearly prohibits the use of names and pictures of current student-athletes in their electronic games," NCAA spokesperson Erik Christianson said in a statement. "We are confident that no such use has occurred and that we will ultimately be dismissed from this lawsuit."

The NCAA Division I Amateurism Cabinet has begun initial discussions on the final report of the Task Force on Commercial Activity in Intercollegiate Athletics. The Cabinet hopes to eventually craft legislation to address "the need for both commercial revenue to fund athletics programs and adherence to the principles of amateurism."

The members of the cabinet agree with the task force's assessment that current legislation does not properly answer questions about some aspects of modern media, and they plan to examine new concepts that involve the use of student-athletes' images at its September meeting.

Three of the principles examined by the cabinet were:

• Authorization of the use of a student-athlete's name or likeness (for example, via game footage) that does not portray the student-athlete as endorsing a product or service is permissible if several conditions have been met (student-athlete and athletics director permission and a clear association between the commercial entity and the institution/conference/NCAA).

• If conditions and approvals of the preceding principle are met, a student-athlete's name or likeness may be used if it is part of the actual coverage of the student-athlete's competition (in any medium, including television, Web cast, mobile statistics and highlights) or is a representation of the actual competition (photos, game footage), provided the use does not take the form of a fabricated product (names on jerseys).

• A Commercial Activities Oversight Committee should be established to make binding determinations for questions about the use of student-athlete names and likenesses and to monitor trends.

Mike Phelps is an Assistant Editor at Athletic Management.