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Kirk Herbstreit Takes Scapegoating Path on Dormant EA NCAA Football

Josh Webb
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Scapegoats are a television sports analyst’s best friend, as they cover all manner of sins.

Did the team miss a game-winning shot? Did that kicker miss a game-tying field goal? You have your scapegoat and the person who ruined it all for everyone else. In its most basic sense, it is like a child screaming that their parents are evil because they were not given any dessert.

This is basically the attitude Kirk Herbstreit took when he spoke of the ill-fated EA Sports NCAA Football franchise in mid-November.

Kirk’s comments may have gone unnoticed or un-crapped-upon if not for a simple Facebook post by EA Sports prior to the CFB Playoff National Championship game.

Following that post, anything and everything recently related to the beloved title was fair game for discussion.

“I can’t believe Ed O’Bannon took that game away from us,” Herbstreit said to SEC Country. O’Bannon is, of course, the former UCLA basketball great that challenged EA’s ability to market a game using the image and likeness of players without their consent.

The problem with Herbstreit’s assessment is that is has no basis in reality. This was not something O’Bannon really even had the ability to take away from Kirk, let alone the entire nation. The court made that decision, and no amount of scapegoating by Herbstreit or anyone else is going to change the fact that our legal system demolished the NCAA franchise so quickly that it didn’t even have time to say goodbye on the way out.

That EA packed up and went home rather than fighting O’Bannon further suggests that, on this topic, Kirk Herbstreit is talking out of his ass.

The company has since stated that it would love to get back into the business of making the franchise, but only if it can work out an agreement with the players for payment.

While this doesn’t excuse the millions and millions they made without previously caring about those players, it is supportive of the notion that EA grew a conscious after being caught red-handed.

No, O’Bannon did not take this franchise away from people. EA began that process long ago when they brokered a deal with the NCAA that failed to secure basic likeness rights from the grown adults appearing in their game. It’s a simple concept and one that is straight forward in 95% of situations. People and companies have a tendency to protect what’s theirs, especially if it’s blatantly obvious that someone is profiting illegally off their work.

Ultimately, this always come back to the discussion of pay-for-play and the unionization of college athletes, but that’s just to distract people from the name, image, and likeness portion of the legal argument. Regardless of their student-athlete status, every eligible adult in America is afforded the right to to their own NIL. It’s basically their brand. While there is obviously much more to the legal aspect of this claim, in a rudimentary sense, it is a way for people to protect who they are and what they’ve accomplished in life.

Make no mistake, Kirk Herbstreit was compensated for his appearances in the game and he thinks players should also be compensated, just not in the manner some might think. Herbie’s plan for compensation includes bragging rights and a free copy of the game for the players. Seems totally fair, and Herbstreit tweeted he would lend his voice to the franchise free of royalties.

Still, it’s ludicrous to suggest that someone receive a $60 copy of a game as payment for being one of the main characters in the game. Sports games obviously function differently than single player adventures, but how many people buy the product if EA created their own players from scratch and didn’t model a single one after a real life counterpart?

More to the point, Herbstreit seemed to miss this fact when he unintentionally acknowledged that these were ripoffs.

“I’ve never met one player in college football that’s like: ‘They can’t use my name and likeness! I need to be paid!’ They’re just thrilled to be on the game. They love being on the game. It’s like the biggest highlight of their life, is to be on the game.”

Well, actually, several college players have a major issue with it and Herbstreit likely hasn’t met them because he never wanted to meet them. It’s not like they don’t exist. All he really would have to do is pick up a phone and call Sam Keller.

If Herbie doesn’t want to call Keller, he can surely use ESPN’s might to speak to one of the NCAA lawyers who had to settle with Keller to the tune of $20 million dollars.

The courts continue to rule in favor of the players in these situations, but people continue to blame O’Bannon for demanding that a billion dollar company seek his permission before making money off his life story. At best, Herbstreit’s comments are poorly informed and knee-jerk. At worst, Herbstreit is spouting vitriol over having a nice pay day ripped from his hands by the courts. Either way, it has no basis in anything related to reality.

It’s time for people to move on from their blame of O’Bannon and ask themselves why it was acceptable for two billion dollar companies to illegally use the image and likeness of legal adults without their permission. That’s what this is about. No more, no less. Had they asked for permission in the first place, this likely never would have been an issue.

O’Bannon is not the reason Herbstreit and others can no longer enjoy the NCAA Football franchise. That honor belongs to common sense and the legal system.

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