Why inclusion of 1992 Dream Team members in NBA2K13 may help Ed O'Bannon in O'Bannon v. NCAA

Good news for fans of the popular video game series NBA2K: this year's game, NBA2K13, will include all but one member of the 1992 Dream Team. Why? Because the game's publisher, 2K Sports, negotiated individual licensing contracts with 11 members of the Dream Team, including Michael Jordan, Larry Bird and Magic Johnson (2K couldn't strike a deal with Scottie Pippen).

Undoubtedly, the game is poised to generate more sales with the Dream Team in it, especially among those of us who are old enough to remember the Dream Team. As a teenager in 1992 who bought EA Sports' Team USA Basketball for the Sega Genesis just to play as the Dream Team, I may just have to pick up a copy of NBA2K13 for my XBox 360.

Members of the Dream Team will of course be compensated by 2K Sports for the use of their name and likeness. It sounds like an obvious point, but again, notice how members of the Dream Team were capable of doing their own deals, and as Pippen shows, capable of declining a deal.

One of Ed O'Bannon's antitrust arguments in his class action lawsuit against the NCAA and the Collegiate Licensing Company (CLC) is that ex-NCAA basketball and football players are capable of negotiating their own licensing deals for video games, and the market would be more competitive if they could. Under NCAA rules, they aren't able to enter into such contracts; instead, CLC negotiates on their entire behalf (and, of course, players are barred from any compensation). If ex-NBA players can negotiate their own deals with 2K Sports, why couldn't ex-NCAA players do the same with video game publishers?

Will be interesting to see if NBA2K13 works its ways into the O'Bannon litigation.

Update 1:45 PM: Great point by Ryan Rodenberg on Twitter:

@McCannSportsLaw Also interesting to note that then-college player Christian Laettner is part of the game (and negotiated his own deal?).

Assuming Laettner, like the other Dream Team members, negotiated his own deal, then I believe he would be the first player to negotiate a licensing deal for his basketball performance while he was still an NCAA student-athlete. Would seem that the NCAA's exemption language for NCAA student-athletes who are competing in the Olympics, as Warren Zola wrote about for Sports Law Blog on Monday, would be in play.

Update II August 28 10:00 pm: Scottie Pippen signs last-minute deal to be in NBA2K13 - the Dream Team will be complete. Looks like players can decide if and when they want to be in video games.