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Gareth Bale among group of footballers questioning the use of their likenesses in games

If this sounds similar to the Ed O’Bannon v. NCAA/EA lawsuit, that’s because it is.

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Tottenham Hotspur - Press Conference And Training Session Photo by Tottenham Hotspur FC/Tottenham Hotspur FC via Getty Images

There’s a problem brewing in the world international football video games, and it’s not going away any time soon.

Tottenham Hotspur’s Gareth Bale has joined the growing list of footballers that are bringing a lawsuit against EA Sports for the use of player likenesses in the wildly popular FIFA series. The Athletic (£) has confirmed this via Ali Humayun. The article itself is paywalled but I can do a solid breakdown for you.

Sources have told The Athletic that a growing number of top players are likely to follow the lead of Ibrahimovic and Bale and voice their objections to the use of their likeness in the video game without, they believe, proper consent.

Several years ago, I covered in detail the civil suit of O’Bannon v. NCAA/Electronic Arts. The issue at hand there is similar to what Ibrahimovic and Bale are pushing, though circumstances are different. Ed O’Bannon was a point guard for the UCLA Bruins championship basketball team in 1995. He, along with former Nebraska and Arizona State quarterback Sam Keller, brought forth a lawsuit that stated Electronic Arts used player likenesses of college athletes without their permission. The end result was Electronic Arts putting an end to the NCAA Football franchise, with the final version being NCAA Football 14.

The circumstances are different here because O’Bannon and Keller argued that college athletes should be paid for their likenesses, which is against NCAA rules regarding amateurism. In the United States, college athletes are given scholarships to play for a school during their time at the university. However, they cannot profit off of their likeness and do not draw a salary outside of their room, board and stipend they receive from the school. Electronic Arts got around this by listing players by position and number while allowing users to edit the names if they felt like it. The final version of NCAA Football featured over 120 schools with 70+ players on each roster. If you think it’s insane to go through those teams and edit them, there are communities out there who enlist the help of players by updating the rosters every year to ensure accuracy for the following season.

Back to the topic at hand, the reason this is different than O’Bannon v. NCAA is because it involves professional athletes. Doing some google searches, it appears that FIFPRO is the international players union that is able to sell name and image rights. The problem is that they can only do it for nations that are members, and this is where the issue comes into play. Ibrahimovic seems to think he has never been a part of FIFPRO and receives nothing in return for the selling of his likeness in FIFA 21. If this sounds a little strange, it’s not the first time it’s come up. Earlier this summer there was a case in Brazil where EA Sports had to pay out a settlement to 400+ footballers in the nation. Damages there totaled around R$6.5m ($1.22m/£912k) paid out. That doesn’t sound like a lot of money, especially when factoring in the insane revenue that EA Sports takes in around their sports franchises. Daniel Ahmad, who is a Senior Analyst at Niko Partners and is a great follow for video game information, has numbers that will make your head spin:

Now, keep in mind that this is just for Ultimate Team which includes all of their sports franchises and not just the FIFA series. Madden NFL has the same mode but does not have the worldwide reach that FIFA does, given it focuses on American Football. FIFA is a cash cow for EA Sports, but they also know that the clock may be ticking on it. Back in 2019, Kerry Hopkins, who is Vice President of Legal and Government Affairs for EA, called the company’s use of loot boxes “surprise mechanics” in order to get around the gambling aspect of their games. While this hearing was specifically aimed at Battlefront 2 and the awful use of loot boxes to unlock special characters, FIFA was brought up at the hearing.

The problem for Ibrahimovic specifically is that EA Sports has an exclusive contract with AC Milan for likeness use, which means Ibrahimovic is going to be included in that. He may not have a say, but he is just one of many. FIFPRO has yet to comment on the story as well, but doing some research on the organization, this seems to be business as usual for them. The concern here is whether or not players are actually getting a slice of the pie from FIFPRO. The more players that sign on, the more chance there is that FIFPRO is going to have to comment and explain how their system actually works. For what it’s worth, the English Premier League sells their rights as a whole, as does Ligue 1, La Liga, and Bundesliga. Serie A does not have such a deal and allows teams to negotiate as they seem fit. This is why Juventus are not in FIFA 21 and are called “Calcio Piemonte” instead, though the players are still available for use.

This is a story to watch if you’re a fan of the FIFA series. While I don’t believe this is going to kill off arguably the most popular sports franchise in the world, it is going to bring attention to image use and EA/FIFPRO may have to re-work the deals for players to get some of the revenue. Needless to say, Electronic Arts can afford it though they’ll almost certainly fight it tooth and nail before having to do so.