A few years back, a fantasy baseball league sued Major League Baseball. Fantasy leagues allow average joes to play general manager by assembling teams of professional athletes. The fantasy-leaguers earn points (or something--we don't play ourselves, so this is purely uninformed speculation) based on how well the various players on their virtual teams perform in the real world. Back in 2005, MLB wanted, in effect to corner the market in fantasy baseball for itself and restrict competing leagues from using the statistics of major-league players--essentially putting these competitors out of business. The courts correctly ruled against Major League Baseball, finding that statistics are public information and that no corporation could claim ownership of those facts.
MLB overreached, but they based their argument on a more accepted principle: the right of people to control the use of their image, particularly in commercial ventures. While fantasy leagues have the right to use public information like player stats, they presumably would not have the right to use pictures of actual players in promoting their product--at least without compensating the players. A question, though: What happens when the statistics ARE the image?
Last year, a former college football quarterback, Sam Keller, sued the video game publisher Electronic Arts, claiming that they misappropriated his image for an NCAA Football video game. The catch is that, technically, EA can claim that they didn't. NCAA rules, you see, prohibit the game developers from using players' names, so strictly speaking the "athlete" portrayed in NCAA Football was not "Sam Keller"--it was just an avatar wearing his jersey number, with his height, weight, stats, and playing style. In effect, EA could claim that all they did was utilize the public information, statistics, to program a player for use in its game.
Where that argument would fail, we think, is in the fact that so much "incidental" information went into the avatar's programming: things like Keller's jersey number and hometown, for example. We wonder, though, what would happen if the game's developers had created a virtual player that looked nothing like Keller, but that was programmed with Keller's stats? Theoretically, there would be no lawsuit. At the same time, there would be less interest in the game.
Part of the appeal of these hyper-realistic sports video games lies in the fact that you get to "play" as your favorite player. A video game that incorporated all the actual statistics but displayed generic-looking athletes would presumably not find as much popularity as one that utilized player likenesses--even if you could play as a really cool avatar like. . . well, like those avatars from "Avatar." And you know James Cameron would take a piece of that action.
Let's not keep pretending that college sports is anything other than big business and that college athletes--particularly in the big-money sports like football and basketball--are in any meaningful way different from the professional athletes they hope one day to be. If a game company's business model derives profit from the use of these folks' images, they should be compensated just like anyone else.
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