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College sports video games went extinct, but just like the dinosaurs they could make a comeback

By on @pastapadre

College sports video games thrived for decades, but now they’re gone. A landscape that once bristled with college football, hoops, and even baseball titles connecting fans to their alma maters (and schools they had nothing to do with) has become barren. Despite booming TV ratings for March Madness and unthinkably lucrative payouts courtesy of the College Football Playoff, fans have no way to replicate or reverse real-world results on the virtual playing field.

How did we get here?

Lawyers. Of course! Ultimately, many of the reasons for the disappearance of college sports games can be traced through a history of legal action. This long road we’ll meander down is littered by half-truths, conflicting arguments and rulings – many centered on the use of arguably unauthorized likenesses within collegiate video games.

Even now, six-plus years after challenges were first made in the courts, there’s no finality to be found. So this isn’t changing anytime soon. It’s also important to know that legal concerns do not represent the entirety of why college games disappeared. Falling sales numbers and increased expenses of some titles played a role, as did difficulty in producing a digital revenue stream similar to Ultimate Team. That means their return would not be guaranteed even should the eventual legal results yield a system that would allow them to exist. More on that later.

The Beginning of the End

It started in 2009 when two significant lawsuits were filed. One was fronted by former Nebraska quarterback Sam Keller and the other by former UCLA basketball player Ed O’Bannon. Though the arguments being made were different – Keller’s related to current athletes and O’Bannon’s to those featured on classic teams – they would eventually be merged with O’Bannon continuing on as the face of the movement.

The cases centered on how the players in the video games were created with, shall we say, “more than coincidental” similarities to their real-life counterparts. We all knew who the important players were in NCAA Football or NCAA March Madness (both published by the company Electronic Arts) and so did O’Bannon. The problem, naturally, is that the game publishers had not paid for the rights to anyone’s likenesses. Furthermore, the defendants were said to have conspired to avoid paying student-athletes for their rights. Evidence came out that showed the NCAA and Electronic Arts had actually agreed to use names in the game at one point before reversing course, and that the EA Locker feature was created to allow easy and widespread sharing of named rosters.


Changing Course

But the class-action suit was to become about far more than video games – it evolved into a referendum on the NCAA as a whole. The NCAA, Collegiate Licensing Company, and Electronic Arts were named as defendants. Video games became a sidebar, as the revenue they generate pales in comparison to those from broadcasting rights and merchandising sales (which had become the major point of contention within the case).

EA and the CLC played themselves out in September 2013 by reaching a settlement with the class. They agreed to pay $40 million. That sounds like a lot of money on the surface, but it’s a relative drop in the bucket compared to what they were at risk to lose. With that amount, each former athlete that qualified would receive only a few hundred to a few thousand dollars depending on how many class members were to make a claim.

The Last Game

By the time of the 2013 settlement, only one college sports video remained – Electronic Arts’ venerable NCAA Football series. The franchise had gotten increasingly strong and was poised to be an important bullet in EA’s arsenal for the coming launches of the new PlayStation 4 and Xbox One. Unfortunately, EA would decide to cancel the series after the settlement, disappointing fans and shuffling longtime NCAA Football developers onto other projects or laying them off. Whether they terminated their NCAA franchise out of desire to avoid future litigation, or an agreement within the settlement that made it unfeasible to continue, remains unclear.

Somehow failing to see the writing on the wall – or perhaps hoping any ruling would help stave off the expected future “super conference” organization that will cause much of the NCAA to disintegrate – the NCAA refused to settle and the case continued until August of 2014. U.S. District Judge Claudia Wilken determined that the NCAA was violating anti-trust laws by preventing players from being paid for their name and likenesses. While a big loss, it was not the “death sentence” that supporters of the NCAA’s side warned against.


The Ruling

Wilken’s ruling determined that the NCAA would no longer be allowed to prevent student-athletes from being offered a share of revenues generated from use of their names, images, and likenesses while enrolled in school. However, a twist of the ruling stated that the organization would be able to set a cap on that amount, which could not be lower than the cost of attendance. The NCAA would also no longer be able to restrict institutions from setting up a trust to be paid to athletes once they leave school or their eligibility expires. Once again, they would have control over a cap, but for that at no lower than $5,000 a year.

In March of this year the NCAA argued in front of the Ninth Circuit Court of Appeals. They are unlikely to get a favorable ruling from the three-judge panel, expected by September, given that it is made up of the same judges that already sided with Keller over EA when that case (which has been considered “related” explaining why the same panel was assigned to O’Bannon) was still ongoing.

To the Supreme Court?

The NCAA is holding out hope that the case will eventually end up in the Supreme Court, particularly because the Ninth has consistently been the most reversed court in the land. Well known for having a liberal slant, nearly 80% of their cases that reach the Supreme Court are reversed. That assumes that the Supreme Court agrees to hear that case, though; there is no guarantee of that.

In theory, if the ruling from Judge Wilken were to hold, EA would be able to fund a pool that would go to players in order secure their inclusion in college-based video games. That could be money accessible to the players during their time in school or through a trust disbursed only after they depart.


So…how feasible is the return of college games?

There’s a lot that still needs to happen to make a new video game something EA or any other company would consider.

First off, there is a distinct possibility that no college sports game would be backed by the NCAA (if the NCAA even still exists when the time comes). That creates complications, such as rounding up various licenses for conferences, bowl games, and stadiums – things that make college football and basketball games feel like college football and basketball games – and affect branding and exposure.

The most likely – college football

A college football game makes the most sense, although difficulties abound. While there is a lot of football technology available at Tiburon Studios (the Orlando facility that makes Madden and used to make NCAA Football), there would still be tens of thousands of man hours needed to establish college football on a brand new generation of hardware. Stadiums, uniforms, commentary, music, artwork, and customization of gameplay to the distinctly different college game are all on tap. It’s a massive effort with no guarantee of near-term payoff.

Even if work were to begin again, there are still other questions to answer such as whether all the individual institutions would come back to the table for a game. Many were prepared to walk away from video games before the series was officially cancelled; Ohio State was just one of many schools rumored to not allow themselves to be represented. The lack of key universities would be a death knell to realism for many. The relatively paltry revenues will be seen by some as not worth the risk.

It’s also important to monitor how players are paid. Under the proposal by Judge Wilken that system would theoretically work for EA, but there would have to be some sort of organization to come to terms with, a la the NFLPA for players in Madden. The alternative is having to license players individually; being forced into negotiations on a player-to-player basis would be a logistical impossibility. Even if some player got to sign deals for themselves, the result would be a game containing a mix of real athletes and fake ones; there’s very little appeal in that.


Why not hoops?

Many people forget that college basketball died out before even all the primary litigation concerns began. NCAA March Madness and College Hoops 2K simply didn’t move copies when they existed. It wouldn’t necessarily be a surprise to see someone take another shot at it – Take Two is well positioned with their NBA 2K technology, for example – because the market may expand when real players are officially included. However, the development costs to build the multiple dozens of arenas, plus the decidedly different (and less appealing than pro) athletic skills of college players and a difficult release frame (after all the other sports games have come out) combine with an uncertain return on investment making it far from being a sure thing.

EA did testify during the case proceedings that they would be “very interested in acquiring the rights” of players to use in the games. Yet the projects have to be justifiable so there are circumstances under which they would do so and others where they would not.

Where do we go now?

College video games will sell better with the real players built into the game, but the schools ultimately provide the most appeal. Fans cheer for their schools while players come and go. The NCAA Football series sustained itself over the years by representing the schools and conferences, making the players secondary. Sure, they had the individual athletes match closely to how their counterparts actually played and looked, and those who cared a lot about names could edit them in or easily import them through another method. The schools and conferences have to commit to being full partners with any sports game made. Everything else falls in line after that.

Will there ever be another college sports game?

Almost certainly, and the leading candidate to return is EA’s NCAA Football. It comes down to money, and it’s there to be made if the series can be re-launched and have a multi-year window to recoup the sizeable investment necessary to bring it back to life. The College Football Playoff is certainly a big enough draw to generate sales, and having licenses to players would allow for a complete Ultimate Team experience to drive digital revenues. Because of that there’s no doubt all of the stakeholders – EA, Sony, and Microsoft – are following the developments closely to determine how they can capitalize and when. While it may be a few years away from materializing there’s thankfully some reason for optimism.


3/15/16: The 9th Circuit Court of Appeals affirmed that the NCAA violated antitrust laws but struck down the ability for athletes to receive up to $5,000 a year in deferred payments. That complicates the potential return of college sports video games. The O’Bannon class is now appealing that decision to the Supreme Court.

10/3/16: The Supreme Court has turned down the petition to hear the case made by both the plaintiffs and the defendant. The appeals rulings stand. The NCAA has violated antitrust laws but student-athletes can still not be paid above educational-related expenses.