Latest move in EA Sports, The Brandr Group lawsuit could signal resolution

Attorneys representing EA Sports and The Brandr Group have agreed to a joint stipulation, pushing back the deadline for the video game brand to respond to the group licensing company’s complaint.

The Brandr Group initially sued Electronic Arts last month, arguing that EA attempted to retain players’ rights while evading the company. While The Brandr Group does have group licensing contracts with more than 54 Division I institutions, the agreements with athletes are non-exclusive.

The complaint was initially due on Tuesday. However, EA has been given an extension to August 1. Part of the reason behind the continuation is that the lawsuit was originally filed in San Mateo County Court, where EA is headquartered but has since been moved to the Northern District of California court.

The decision for both parties to grant an extension could also mark a resolution on the horizon, according to attorney Darren Heitner. The Brandr Group recently filed a temporary restraining order against EA Sports, which was denied by United States District Judge Haywood Gilliam on June 30. The move could have delayed the release of EA’s College Football video game.

A Case Management Conference had been set for Sept. 26. But Gilliam has moved the call to Aug. 15. The meeting could set the date for a hearing or be the place where a resolution is announced.

“Extensions of time are liberally granted by courts and counsel tends to not object particularly for a first request,” Heitner told On3. “It sometimes allows the parties time to negotiate a resolution early on as well, instead of wasting resources on fighting the case.”

Where do things stand in EA Sports, The Brandr Group case?

When The Brandr Group sued EA in June, the brand management, marketing and licensing agency argued EA was “causing irreparable harm” to its athletes. When the court denied The Brandr Group’s TRO, it also outlined the likelihood of success on merits in its lawsuit. Somewhat uncommon, the response showed why The Brandr Group could struggle to make its case in a courtroom.

Gilliam noted that even if athletes’ intellectual property and name, image and likeness are used in the game, the rights are not licensed together nor contingent on one another. EA Sports declined to comment after the TRO was denied. But a spokesperson pointed to the court’s response as evidence of where the lawsuit could be headed.

Losing the TRO lost The Brandr Group any leverage it had in the lawsuit.

“What appears to be at stake here, then, is simply the possible monetary benefit that Plaintiff could receive from creating co-branding licensing opportunities that package a school’s IP and students’ NIL rights together,” Gilliam wrote. “Plaintiff attempts to couch the loss of this co-branding opportunity as irreparable harm. But this too falls short.”

Why does this matter?

EA contracted OneTeam Partners in May to facilitate college athletes’ likeness. Details of the agreements are still murky. But a source indicated to On3 at the time that the cash pool for athletes was in the $5 million neighborhood, which would pay out to $500 per player. Athletes will reportedly not make royalties off the game, either. An official offer has not been extended to players yet.

Multiple sources have told On3 The Brandr Group’s decision to sue was just as much about OneTeam. A competitor in the college licensing realm, the two were previously doing business together after OneTeam made an investment for a minority stake in April 2021.

OneTeam had been positioned for the EA bid since the video gaming brand decided to return to college football in 2022. Working with a number of professional players’ associations on group licensing and marketing, the firm has become a major player in the NIL era. It worked with Fanatics last February to facilitate group license deals with college football players for a multi-jersey customization program.

With the court striking down The Brandr Group’s move for a TRO, any chance the courtroom could delay the release of EA Sports College Football was gone. EA has the intention to include athletes’ image and likeness in the game for the first time. But the steps to execute the plan could be difficult.

Before July 2021, college athletes were prohibited from profiting from their name, image and likeness. The origin of NIL traces back to the late 2000s when former UCLA basketball player Ed O’Bannon and 19 others sued the NCAA, arguing the organization violated United States antitrust laws by not allowing athletes to make a share of the revenues generated from the use of their in broadcasts and video games.

This will be the first EA Sports college football game since 2013. It will also be the first video game that FBS athletes have been given the opportunity to benefit from their NIL. The last time the EA Sports video game hit the shelves in 2013, roughly 1.5 million copies were sold. Since then, the gaming industry has seen significant growth and interest. Esports leagues have been started. Twitch has become an extremely popular live streaming service thanks to video games, too.

“The complaint will not impact our development timelines,” the video gaming company told The Athletic last month. “The game is on track and is a priority for EA Sports.”