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NCAA compensation may put a hold on future games

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There has been a long-standing disagreement in sports at the college level over whether athletes deserve to get paid for their time on the court or field. Previously, the NCAA would not allow college athletes to profit from their likenesses and would disqualify them from play if they received any form of gift or compensation.  However, a recently passed California law requiring the NCAA to allow college athletes to receive payment has challenged this notion, and at the national level an ongoing conversation has once again heated up. Now, people are wondering what the NCAA can do to fairly pay athletes without breaking the bank. Many schools, including some of the biggest names in college sports, run their various sports programs at a loss by using them to help attract alumni and outside donor support to make up for the financial shortfall. The entire system is built around not having to pay athletes living wages, something which many critics argue against as being exploitative given the pressure put on these men and women.

There are more than 30,000 athletes in Division I NCAA football alone, so the potential implications of such a change are massive. Of course, it’s already met with push back from some in the US, notably some politicians who think that college athletes should remain uncompensated. Their arguments might be a bit flimsy though, like North Carolina Republican Richard Burr who said that:

‘If college athletes are going to make money off their likenesses while in school, their scholarships should be treated like income. I’ll be introducing legislation that subjects scholarships given to athletes who choose to “cash in” to income taxes.’

The problem is that this could be argued to be similar to making college athletes employees of the schools they play for, meaning that they deserve, and are potentially legally entitled to, compensation anyway. Perhaps some deeper arguments can be made to support compensating collegiate athletes for their likenesses and identities on the field, but for video games the focus is a bit different.

Well-known video game lawyer, Stephen McArthur, spoke on the subject of the recent decision and its potential impact on video games. The outlook isn’t good, as it would require a ton of work for what is essentially a niche title. The company hasn’t made a college sports title since NCAA Football 2014, and there’s a good reason for that.

“If Electronic Arts decides to bring back a college sports video game, it will hit a roadblock, because it has to get permission from each and every individual athlete, since there is no larger union/organization to negotiate with,” he explained. Going further McArthur said, “An organization will need to spring into effect to aggregate the negotiating for the rights of each player so that video games don’t need to independently negotiate the rights of hundreds or even thousands of separate players.”

Back in 2009, a former UCLA basketball player – Ed O’Bannon – filed a lawsuit against EA, the Collegiate Licensing Company, and the NCAA seeking royalties for college athletes who featured in, and were often used to help promote, EA Sports titles. The former two companies settled the lawsuit for $60 million in 2014. Whereas the NCAA paid out various plantiffs in the case to the tune of  $20 million. This sum was paid to the various Division I football and men’s basketball players who had featured in the series of games since 2003.

Professional sports organizations such as the NBA, NFL, and MLB have unions, something the NCAA lacks. This collective bargaining presence has allowed those former organizations to negotiate catch-all exclusivity contracts with several publishers. These contracts often involve billions of dollars in compensation for the use of likenesses and team iconography. This would be a very tough sell for both the NCAA and the publishers that might be interested.

There is another question though, as some are rightly concerned about the aggressive monetization leaking into an NCAA-branded game were EA or another publisher to negotiate a licensing agreement. And with EA, the company already canned one sports entry this year, it’s somewhat unlikely that the company would jump into another commitment so quickly.

The infamous overly aggressive loot boxes and gambling in 2K sports games is a direct consequence of the billions of dollars 2K spent to acquire the exclusivity deal, and there’s a very real chance such a thing could happen with another game series. And since EA is pushing for more live services in 2020 and beyond, there’s a major chance they would do exactly the worst thing.

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