It's Football Time in Tennessee! (Are You Ready for Some Lawsuits?) - Articles

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Posted by: William Haltom on Aug 27, 2009

Journal Issue Date: Sep 2009

Journal Name: September 2009 - Vol. 45, No. 9

As that noted graduate of the University of Tennessee College of Law, John Ward, used to say, "It's football time in Tennessee!" And as Hank Williams Jr. sings, "Are you ready for some lawsuits?"

You read that right, John Madden breath! Autumn not only means football, but also football-related lawsuits.

For example, for the last several years, the college football rivalry between my Tennessee Vols and the Alabama Crimson Tide has featured more subpoenas than forward passes. (As Wilford Brimley said in Absence of Malice, "Wonderful thing, suh-pee-knees!") Poor Phillip Fulmer. Every time he showed up for SEC media days, some crazy Alabama lawyer was trying to serve him a suh-pee-knee to make sure he had to give a deposition on the morning of the Tennessee-Alabama game to answer charges that the he and the NCAA had engaged in a conspiracy to bring down Alabama football. For years, I wondered why SEC football coaches were always flanked by state troopers at games. Now I know. They are there to protect the coaches from lawyers.

But while Phillip has now been forcibly removed from the Neyland Stadium sidelines and replaced by the coaching firm of Kiffin, Kiffin & Orgeron, football litigation continues unabated. The latest gridiron lawsuit is Samuel Michael Keller v. Electronic Arts Inc. and the National Collegiate Athletics Association, a class action suit filed in the United States District Court for the Northern District of California on May 5th. The nominal plaintiff is Samuel Keller, a former student ath-uh-leet (as Neyland Stadium announcer Bobby Denton calls them) who was a starting quarterback for the Arizona State University and University of Nebraska football teams. (Not at the same time, mind you. He transferred.) I suspect that he was also once a member of his high school mock trial team, but I don't know that for a fact.

Defendant Electronic Arts Inc. is a "multi-billion dollar interactive entertainment software company" that produces NCAA football, NCAA basketball, and "NCAA March Madness" videogames. The co-defendant is the NCAA, which formally having conspired with Phillip Fulmer to bring down Alabama football, is now (according to the allegations of the class action lawsuit) conspiring with Electronic Arts to deprive college football players of their names and likenesses without compensation. The lawsuit claims that if you purchase and play one of the Electronic Arts football videogames, you will see images of Sam Keller and other current or past college football players. Keller claims that even though he and his fellow student ath-uh-leets are amateurs, Electronic Arts and the NCAA have no right to use their names and likenesses without compensation.

I have never played an electronic football videogame. However, I am an expert on the subject because in 1959, when I was seven years old, Santa brought me a Sears & Roebuck official electric football game set for Christmas. I don't know what made the Sears & Roebuck electric football set "official." Maybe Vince Lombardi certified it as such. But it sure looked official. More than that, it looked absolutely beautiful.

I must have been a pretty good boy in 1959. Either that or I totally duped Santa Claus that year, because the Sears & Roebuck official electric football game set was the best Christmas gift I ever got. It was so cool. The game set contained not only an awesomely realistic metal football field, but also two complete teams consisting of 22 little bitty football players all made of plastic. There were, of course, 11 plastic players on each team. One team was red and the other team was yellow. The red team was obviously Alabama, and I declared the yellow team to be Tennessee, even though the little plastic yellow players looked more like Vanderbilt Commodores than Tennessee Vols.

There was also a tiny football made of felt that could be placed in a tiny running back's plastic arms.

And there was good news for my dad. The Sears & Roebuck official electric football game set required no batteries and came "completely assembled." That's right. My father did not have to worry about those three terrifying words: "Some assembly required."

All a seven-year-old boy had to do to have a Sears & Roebuck official electric football game was to line up the little official plastic players on the little metal official field, put the official plug in a household electrical outlet, and then push an official little red switch to the official "on" position. When this happened, the official little metal football field would vibrate like an earthquake and make a loud noise that was guaranteed to wake your parents at 5 o'clock on Christmas morning. The little plastic football players would then shake, rattle and roll in all directions on the metal playing field. Sometimes your running back would turn around and run the wrong way, just like Roy "Wrong Way" Riegels did in the 1929 Rose Bowl or Jim Marshall did for the Minnesota Vikings in a 1964 game against the San Francisco 49ers.

The end result looked more like a demolition derby than a football game, but it was all incredibly exciting.

There was no passing in electric football. My friends and I tried to figure out a way to get the little plastic running backs to toss the tiny felt football to a little plastic receiver. But while the little plastic running backs fumbled a lot, they couldn't even toss the ball underhanded like Erik Ainge did against LSU in 2005.

And so, in playing electric football, my buddies and I just ran the single wing. And whenever a player actually shook down the field in the right direction and scored a touchdown, we always went for a two-point conversion. See, not only could the little plastic players not pass, they couldn't kick.

While an electric football game between plastic Alabama and plastic Tennessee was loud, erratic, and fairly random, my buddies and I loved it. I spent all of Christmas Day 1959 reenacting one gridiron battle after another.

And while I don't know this for a fact, I seriously doubt anyone ever sued Sears & Roebuck over the official electric football game set, unless some little kids got shocked while trying to play electric football in a bathtub. (I never tried that.) And I am absolutely confident that neither Mr. Sears nor Mr. Roebuck was ever sued for misappropriating the name and likeness of any college or pro football players. As I recall, not one of the 22 little plastic football men in my electric football set looked at all like Johnny Majors, Bart Starr, or Y. A. Tittle.

And so here's some free legal advice for Electronic Arts and the NCAA. Settle the lawsuit with Mr. Keller by simply agreeing that you will discontinue the production of football videogames. Cut a deal with Sears & Roebuck and start manufacturing the old classic electric football sets. I guarantee you they will sell like hotcakes. In fact, I can promise you this. If you bring back the official electric football game set, I know exactly what I am going to ask Santa to bring me this Christmas.

Bill Haltom BILL HALTOM is a partner with the Memphis firm of Thomason, Hendrix, Harvey, Johnson & Mitchell. He is past president of the Tennessee Bar Association and is a past president of the Memphis Bar Association.