When lawsuits began to challenge the alleged presence of real player likenesses in college sports video games around seven years ago it seemed inevitable that a decision would ultimately have to come down from the Supreme Court. With the NCAA's rules centered on amateurism and huge revenue sources such as broadcasting rights and merchandising later taking center stage - making video games just a small part of the conflict in question - the stakes were raised and an ultimate appeal to the highest court was assured.
Tuesday, the plaintiffs in the class-action lawsuit led by Ed O'Bannon officially made the request for the Supreme Court to hear the case. There's no guarantee the split court of eight justices will take, but given its high-profile nature the chances seem higher than most. Only about 0.2 percent of cases petitioned to the Supreme Court are heard.
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The O'Bannon class actually beat the NCAA at the lower court. So why are they the ones appealing? Last September, the 9th Circuit Court of Appeals affirmed the antitrust ruling against the NCAA but struck down the part of the ruling that would have allowed student-athletes to receive money above the cost of attendance. They would have been able to get up to $5,000 a year in deferred compensation based on the decision from district judge Claudia Wilken. The NCAA is also expected to make an appeal to the Supreme Court, but that would be over the antitrust aspect of the ruling rather than the question of compensation the plaintiffs are challenging now.
Without the ability to include real players in the products by paying for their rights it's unlikely any developer including EA Sports would take on the massive project of rebuilding a college sports video game. The NCAA and individual colleges and conferences, many who dropped out even before the cancellation of the NCAA Football series, probably would not even consider coming back without definitively knowing that they would be completely in the clear of any potential future litigation.
There's no evidence that a generic product lacking real teams, players, conferences and bowl season, would be supported by consumers to an extent that would justify the extensive development costs that would be required. For a summary of how things got to where they are now with the lawsuits and involvement of video games, check out this article from last year.
A decision on the O'Bannon case will be made by the Supreme Court in whatever action they take. If they do hear the appeal, they could reinstate the initially granted ability to compensate college athletes above their attendance costs or they could affirm the 9th Circuit's decision to block it. A split decision given the current make-up of the Supreme Court would uphold the previous ruling.
If they don't hear the appeal from the O'Bannon plaintiffs at all, the return of college sports video games will remain in limbo, with other cases such the one brought by attorney Jeffrey Kessler against the NCAA and its major conferences the next to watch. That one attempts to go beyond just shattering the cap of attendance-related costs for athletes, as the end-goal is to create a completely open and free market in college sports.
Bryan Wiedey posts sports gaming news and analysis daily at Pastapadre.com, has co-founded the new site HitThePass.com, hosts the Press Row Podcast, and be reached on Twitter @Pastapadre.