Ask any Millennial who liked sports growing up: EA Sports video games were a big part of our fandom. On PlayStation 2s, for hours on end, we could manage our own virtual teams, simulating seasons deep into the 2030s and beyond. Even now, hearing the games’ soundtracks and seeing the games’ covers is a hit of nostalgia like none other.
The Madden NFL video games were the most popular; you could argue that the MVP baseball games had the most realistic gameplay; but the historic rosters with which you could play on NCAA football and basketball games take the cake. If you wanted to pit, for example, Indiana’s undefeated 1975-76 basketball team against Duke’s back-to-back championship teams from the early 90s, you could “settle” the debate about which was the greater team. The video games included the likenesses (including image, position, jersey number, height, and skill level) — but not the names — of the players who were on those teams.
Enter Ed O’Bannon, a member of UCLA’s 1995 championship team, who saw an injustice. The National Collegiate Athletic Association (NCAA) for years had prevented athletes from profitting off their names, images, and likenesses (NIL). And yet here were EA Sports and the NCAA selling millions of dollars’ worth of video games using his likeness. In 2009, O’Bannon filed an antitrust class action lawsuit against the NCAA.
The NCAA, an organization composed of more than 1000 member universities, had operated for years as a cartel. Essentially, those schools had banded together and agreed not to allow their athletes to make money, instead “paying” them only in the form of scholarships and small stipends.
That cartel began to crumble with O’Bannon’s 2014 win in court. It further crumbled in 2021, when the Supreme Court ruled unanimously that the NCAA had been violating antitrust laws.
That decision, along with the recent passage in many states of new NIL laws, means the door appears to be open for college athletes to be paid salaries commensurate with the revenue they provide their universities and the NCAA.
For more, see our discussion with Georgetown University Professor Peter Jaworski, who highlighted that college football and basketball coaches are often states’ highest-paid public employees … while the players who play for them often aren’t paid at all.