BIRMINGHAM, Alabama -- Newly-released e-mails from the Ed O'Bannon lawsuit show the NCAA knew that Electronic Arts Sports made video games intending to match real-life characteristics of actual college athletes.

The NCAA "knowingly tolerated this 'illegal' rigging," lawyers for the plaintiffs wrote in an Aug. 31 motion unsealed today in U.S. District Court in California. The plaintiffs argued the "unlawful scheme" isn't justified by NCAA principles of amateurism or competitive balance, but rather as a way to divert money elsewhere.

A July 2003 internal email shows NCAA Director of Corporate Alliances Peter Davis relaying this response he received on whether EA Sports uses current football players' names in video games: "We don't actually use player names but we do use all the attributes and jersey numbers of the players."

Davis' e-mail went on to raise the point that if Ole Miss quarterback Eli Manning got injured, the video game roster would reflect that change. Davis expressed concern whether using Manning's number and attributes would be too close to his likeness and cause an eligibility issue.

Fifteen former football and men's basketball players are suing the NCAA, EA Sports and Collegiate Licensing Company, saying their names, images and likenesses were used illegally by the NCAA for commercialized products. The plaintiffs, who include former Alabama football star Tyrone Prothro, claim the defendants violated antitrust law by colluding to prevent athletes from getting paid based on the use of their name, image and likeness while in school.

"Although we haven't reviewed these documents, it appears the plaintiffs again are trying to make their case on likeness," NCAA spokesman Erik Christianson said in an e-mail today. "Discovery and the plaintiffs' own depositions clearly indicate that the NCAA never marketed student-athlete likeness nor prohibited student-athletes from profiting from their likeness when their eligibility was completed."

The 3-year-old suit is scheduled for a class-action certification hearing next March.

Lawyers for the plaintiffs are challenging the NCAA's amateurism model. They claim EA Sports and CLC are complicit in the NCAA's "scheme" because the NCAA requires its business partners to follow the association's rules and the companies did so.

As part of a string of internal NCAA e-mails from 2009, Davis wrote that the NCAA reached an agreement for EA Sports to use enhanced graphics in its basketball video game. Davis added: "if it's in the game, however, it's fair game (e.g., likenesses of student-athletes from the game can be used, just can't be enhanced to look more like the real guys)."

In a separate series of e-mails between NCAA officials in 2007, then-NCAA Vice President Greg Shaheen made a push for the NCAA to adopt legislation that would allow EA to use the names and likenesses of current athletes. Shaheen argued that if the NCAA polled athletes, they would overwhelmingly want their names used.

"The issue for me is that the names and likenesses are rigged into the games now by illegal means, meaning that many of the video game players have the features, it's just that our membership doesn't benefit from it," Shaheen wrote.

Shaheen wrote that sales numbers showed the NCAA basketball video game was unsustainable without providing the realism expected from video games. If the likeness issue was solved, Shaheen said, he estimated using athletes' names would be worth more than the $4 to $8 million annually that's made from the current model.

Then-NCAA President Myles Brand responded with serious doubt that university presidents would agree to a more permissive use of athletes' names and likenesses in commercial products, including video games.

"Do the presidents understand that by doing so they are leaving money on the table? Yes," Brand wrote. "Do they realize that there is already some of that taking place on their campuses and in their conferences? Probably so. Does the inconsistency matter to them? Apparently not."

Schools admit selling athletes' likeness

According to a "NCAA Commercialism and Licensing Issues Survey" filed by the plaintiffs, 12 of the 150 responding Division I schools said they presently sell licensed products bearing a current athlete's individual likeness. The document doesn't indicate when the survey was taken.

The schools that responded yes: Arizona State, Hawaii, Kansas State, Kansas, Nebraska, UNLV, North Texas, Saint Louis, Nevada, Wake Forest, Wichita State and one unknown. To define athlete likenesses on a for-profit product, the NCAA included as examples individual photos on trading cards, a name on a jersey, a name in video games or an image on a bobble-head doll.

In another survey question, 13 percent of the responding schools said athletes should be paid in some manner from the sale of products bearing his or her individual likeness. Also, 24 percent said they believe there's no difference between selling jerseys with a player's last name and selling jerseys bearing only a number that the player wears.

The O'Bannon lawsuit also challenges the NCAA's requirement for athletes to sign forms that the plaintiffs allege relinquishes players' rights related to their names, images and likenesses even after their college career ends. The NCAA denies that's what those forms do.

The NCAA manual says athletes must annually sign a statement related to a number of eligibility issues in order to participate. One part of that statement authorizes the NCAA, or a third party acting on the NCAA's behalf, to use the name or picture of the athlete to promote the NCAA. The student-athlete form says athletes, "Must complete and sign Parts I, II, III, IV, V and VI to participate in intercollegiate competition," and that includes the publicity part of the statement.

However, NCAA Associate Director of Membership Services Leeland Zeller wrote in a 2006 e-mail that athletes don't need to sign off on publicity rights to be eligible. Zeller was responding to Texas A&M compliance director David Batson, who inquired about what to do because one Texas A&M athlete did not want to sign that portion of the statement.

NCAA President Mark Emmert testified last March he doesn't think signing the form is a requirement for an athlete to participate in an NCAA-sanctioned event. NCAA Vice President David Berst said in his deposition the form is voluntary and that he has never been told some schools tell athletes they're ineligible for a scholarship if they don't sign.

"I'd be pleased to ensure that it's clearly understood that you have a choice," Berst testified.

The NCAA unsuccessfully fought to conceal some of the e-mails released today, citing "competitively sensitive" information about business negotiations. The NCAA was allowed to redact some information from its lucrative media contracts with Turner and CBS.

In addition to seeking damages for former athletes, lawyers for the plaintiffs have said they want money generated by the licensing and sale of athletes' name, images and likenesses to be held in a trust fund until their college career ends. Most of that money is live TV revenue from lucrative NCAA and conference contracts.

The NCAA is arguing the O'Bannon case shouldn't be a class action in part because the ex-players changed their legal strategy, costing the NCAA significant wasted time and money in its defense. Last week, the NCAA filed an excerpt from O'Bannon's deposition on Nov. 1, 2011, in which the former UCLA basketball star indicated college athletes shouldn't be paid while in school.

An attorney for the defendants referenced an article from The Las Vegas Sun in 2010 that quoted O'Bannon as saying, "Maybe athletes shouldn't get paid while they're in school. I understand that. They're on scholarship. But once we leave, why can't we take our likeness?"

The attorney pressed O'Bannon several times on whether he believes college sports should remain amateur and athletes shouldn't be paid while in school. "Yeah, I think so," O'Bannon testified.

E-mail: jsolomon@al.com. Follow @jonsol

(Updated at 8:27 p.m. to include NCAA comment.)