EA Sports College Football Franchise is Making a Comeback. How do College Athletes Fit In?
In February 2021, Electronic Arts (“EA”) announced the revival of its acclaimed college football video game franchise via a tweet that triumphantly stated “College Football is coming back.”[1] The franchise has not published a video game since 2013 after ongoing litigation concerning the uncompensated use of college athletes’ likeness in the game led the NCAA and several athletic conferences to end their licensing partnerships with EA.[2]
The big question facing EA is what form the revived franchise will take, since the NCAA still disallows student athletes to profit from their name, image and likeness (“NIL”).[3] While most details regarding the franchise’s newest installment remain unknown, EA announced that it as of February 2021 it has no plans to feature the NIL of current college athletes and will center the game around generic players.[4] Furthermore, EA reached a licensing agreement with the Collegiate Licensing Company (“CLC”) which will allow the use of the stadiums, names, and logos of over 100 colleges and universities in the game.[5] Notably, powerhouse program Notre Dame announced that they will not participate in EA’s new game until rules governing the use of college athletes’ NIL are finalized.[6] Notre Dame’s statement stressed that it is the program’s “strong desire” that student athletes be allowed to receive compensation for the use of their NIL, a position that will surely lead more programs to clarify their stance on the matter.[7] As of March 2021, EA’s new video game will not carry any NCAA branding.[8]
EA’s announcement of its revival of the college football franchise comes at a time in which the NCAA, state legislatures, and Congress consider how to move forward regarding athletes’ NIL rights. This past January, the NCAA postponed a planned vote on a new set of rules that could have allowed student athletes to profit from their NIL, after the then Trump administration Justice Department raised concerns.[9] The NCAA was itself pressured to address its NIL rules after at least half a dozen states have passed NIL legislation, in an apparent effort to take advantage of the NCAA’s inaction to make schools in their states more attractive to incoming student athletes.[10] The NCAA’s inaction has led to an interstate competition as to which state can create more favorable NIL conditions for prospective student athletes.[11] As more states pass their own NIL laws, we will see a national patchwork of different NIL laws across states, which would allow some athletes to profit from their NIL, while others would be left out of the spoils.[12] The potential for chaos has already led Congress to introduce its own NIL bill, seeking to preempt state laws and create a uniform legal framework for student athletes to profit from their NIL.[13]
For purposes of EA’s video game, the developing legal environment concerning athletes’ NIL rights could result in the appearance of athletes from some schools, while others would be barred. For example, students from schools in Florida and California, states that have approved their own NIL legislation, could potentially feature in the game.[14] Student athletes from other states that have not adopted NIL legislation likely would not appear in the game. Such consideration may not be an issue for EA yet, with some reports estimating that the game will be released in 2023 at the earliest.[15] A lot can change before then. However, EA’s revival of its college football franchise will spur the national conversation regarding the ongoing challenges student athletes face in getting their NIL rights recognized. Hopefully, the renewed attention to the matter results in a solution that benefits all the parties involved: the athletes, EA game developers, and the fans who have long awaited the return of the franchise.
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