Former ASU starting quarterback Sam Keller headlined a class action lawsuit that made name, image and likeness a reality for college athletes over a decade ago. Now, former ASU swimmer Grant House's NIL case could bring down the NCAA.
Keller v. Electronic Arts Inc. and the birth of NIL
Keller and his attorney, Robert Carey, organized a class-action lawsuit against Electronic Arts Inc. (EA), the NCAA and Collegiate Licensing Company in 2013, alleging that the video game company unlawfully profited from using college athletes' physical attributes and likenesses in its popular NCAA Football game.
The player avatars in NCAA Football didn't use Keller's and other college athletes' names, but their jersey numbers and identifiable physical characteristics corresponded.
"Sam was the perfect person to do it because he transferred from Arizona State to (the University of) Nebraska, and the same little avatar that he played at Arizona State was the same one (EA) put in Nebraska uniform," Carey said. "It (was) the same characteristics like left arm badge, whatever visor he wore. It was all identical."
This would constitute a violation of Keller's right to publicity, an intellectual property right that protects the markers of a person's identity — name, likeness, photograph — from unauthorized commercial use. In other words, it gave Keller and other athletes the exclusive right to license their names and images for money, preventing other parties from doing the same without permission.
EA argued that its video game avatars fell under the exception to the right to publicity: transformative use. Protected by the First Amendment, creative use of the original source material would be permitted if it added new meaning or expression.
"Part of the work you need to do to prove transformative uses: There has to be some creativity," Glenn Wong, a sports law professor at the Sandra Day O'Connor College of Law, said. "What the court found is that they really didn't provide anything that was creative."
In other words, EA's argument fell flat due to the similarity between the allegedly anonymized avatars and the real-life players, and the NCAA ended its licensing agreement with EA as a result.
"It turns out everything we thought was happening was happening," Carey said. "It turns out the NCAA was aware of its players being used and flat out told EA, 'Make sure you take the names off of jerseys before you put the game out,' things like that. The irony in this case is that most players liked being in the game, but that still doesn't mean you get to steal their property rights and not pay for it."
According to Carey, Keller paid the price of the case's public perception but pushed forward college athletes' rights.
"Sam got a ton more pushback than I did, people insulting him and degrading him," Carey said. "But he took it and look at it now. That game is coming back, and the players are going to get a share of it."
Eleven years later and under a new name, EA's College Football 25 is slated for release on July 19, according to Sports Illustrated. Players who consent to being included in the game will receive $600 and a free copy.
"What we're seeing right now is student athletes getting a fair share of the pie," Carey said. "Before this, all schools were doing was paying coaches and building facilities. And the student-athletes weren't even getting enough to cover their cost of attendance. I don't mean like soap and a Mother's Day card; I mean the cost of attendance."
However, the nature of NIL has changed substantially since Keller first took on EA, shifting from an intellectual property-based framework to a marketing-oriented one.
"Back then, it was a property right, what's being stolen from you," Carey said. "There was no marketplace. Today's more about people being agents for people to monetize."
Consequences for the NCAA
Wong said this shift could galvanize the NCAA to rein in the NIL floodgates by passing legislation exempting it from antitrust lawsuits.
"If they can get a limited exemption, then they'll be able to make rules with respect to NIL and compensation and other things like that," Wong said. "But right now, they're hamstrung. The problem right now is that anytime the NCAA passes a rule on anything, there is potential for an antitrust case."
Currently, NCAA rules prohibit schools from using NIL as a recruitment tool, but that's being challenged by the Tennessee and Virginia attorneys general in a lawsuit filed in late January after the NCAA investigated the University of Tennessee for violating those NIL rules in its recruitment process.
"In theory, the way that it's supposed to work, according to the NCAA, is that a student-athlete makes his or her choice with respect to school, but he or she wants to attend to get a scholarship," Wong said. "After they commit there, then NIL deals are put together for them."
The consequences of schools going against this policy characterized the situation of ASU quarterback Jaden Rashada, who signed a contract induced by NIL money with the University of Florida that ultimately fell through.
READ MORE: The NCAA's investigation into Jaden Rashada's recruitment to Florida, explained
However, two high-profile court cases could further undermine the NCAA's authority. The National Labor Relations Board's Dartmouth ruling established that "student-athletes" at private universities are employees, a definition that allows them to unionize. The NLRB's lawsuit against the University of Southern California is also fighting to classify student-athletes as employees. If successful, this case would let athletes in public universities like ASU collectively bargain with the NCAA for compensation.
"What usually happens with collective bargaining, if you look at the other professional sports teams, is that they have group licensing deals," Wong said. "Group licensing deals mean that all of the players' likenesses can be used, and the money that's received by the players association is split evenly amongst all players in the league."
Having athletes reclassified as employees would dramatically change the current athlete-university relationship, allowing athletes more sway over their compensation and other protections. But this possibility still isn't set in stone, according to Mit Winter, a prominent NIL attorney.
"The USC NLRB proceeding will turn out the same way as the Dartmouth one, and they'll say (students are) employees, but it's going to be appealed to the federal court system to probably a couple of years off before we have a final answer," Winter said.
House v. NCAA and the potential for in-house NIL
Former ASU men's swimmer Grant House is now headlining a fresh antitrust challenge to the NCAA. Plaintiffs include college basketball star Sedona Prince, who currently plays for the Texas Christian University Horned Frogs in the Big 12 Conference.
House v. NCAA alleges that the NCAA and the Power Five conferences violated antitrust law by prohibiting athletes from receiving NIL compensation and sharing broadcast and video game revenue. Although it was initially filed before the NIL rule change, the case now seeks damages for lost NIL revenue since 2021 and potential lost revenue since 2016.
According to Winter, the plaintiffs are split into three subclasses: football and men's basketball, women's basketball, and additional sports. The first two are seeking lost broadcast revenue, while the third category doesn't include broadcast revenue.
"For those (basketball and football) athletes, it's seeking backpay that includes broadcast revenue that those athletes would have been paid if the rules were different," Winter said. "In the other sports, for the NIL deals that they would have received, do not include broadcast revenue. (It) just includes endorsement deals, promoting businesses on social media, stuff like that."
The damages in antitrust cases add up, with House v. NCAA potentially making the NCAA pay $1.4 billion, which would triple if the plaintiffs win.
"We're talking somewhere between $4 and $5 billion, which is what the damages estimate is right now for the backpay part," Winter said.
In addition to the backpay part of the case, House v. NCAA is also pushing the prospective part: the possibility of in-house NIL. Although student-athletes can now earn money from outside NIL deals, the NCAA rules prevent universities from paying them directly. This payment would come from media revenue sharing and school sponsorship deals.
The trial for House v. NCAA is on Jan. 25, 2025. The presiding judge, Claudia Wilken, has a track record of ruling in favor of student-athletes and, therefore, has shown willingness to rule against the NCAA's restrictions on NIL compensation.
"If the plaintiffs are successful in House (v. NCAA), schools and conferences will be able to directly pay NIL compensation to their athletes, so that would be a huge change from what the rules are now," Winter said. "All these different cases — they just keep chipping away at all the NCAA rules on athlete compensation and player movement. Every time (the NCAA) lose, it just decreases their authority in those spaces until they're basically going to be no authority (for) any rules like that."
Edited by Alysa Horton, Walker Smith and Caera Learmonth.
Reach the reporter at mosmonbe@asu.edu and follow @miaosmonbekov on X.
Like The State Press on Facebook and follow @statepress on X.
