The EA Sports motto may be “It’s In the Game,” but if the game includes NCAA football players, their likenesses can’t be “in” it unless EA receives permission from each respective player. That’s the ruling today from the 9th Circuit Court of Appeals, which ruled this morning that the First Amendment does not justify the use of student-athletes likenesses in EA NCAA Football video games without their permission.
EA had claimed the First Amendment protected its right to publish the games. After losing in US District Court, EA appealed to the Ninth Circuit. In its 2-1 decision, the Ninth Circuit Court of Appeals in Seattle rejected EA’s first amendment defense. According to the majority opinion, “EA’s use of the likenesses of college athletes like Samuel Keller in its video games is not, as a matter of law, protected by the First Amendment.”
Keller’s case, originally filed on May 5, 2009, in U.S. District Court in Northern California, claimed that EA’s NCAA Football games
use the athletes’ likenesses, accurately depicting the height, age, weight and other information, without the players’ permission. Today’s ruling in the EA NCAA football case remands it back to the trial court to proceed against all defendants, including both Electronic Arts and the NCAA. The lawsuit, filed by former ASU starting quarterback Sam Keller, was over the use of student-athletes’ likenesses in EA’s NCAA Football video games, gutting Electronic Arts’ claim that the practice is protected by the First Amendment.
“The Court of Appeals confirmed that EA’s defense – the First Amendment claim – was fundamentally and fatally flawed,” said Steve Berman, managing partner of Hagens Berman and the attorney who argued Keller’s case on appeal. “We expect that when we appear before the trial court again this fall, the defendants will have a very difficult time mounting a new defense for their blatant exploitation of student-athletes.”
Today’s ruling follows the NCAA’s decision two weeks ago to not renew its licensing relationship with EA when its deal expires in 2014 to publish EA NCAA Football games. It also follows a jury’s decision in an unrelated case to award the original Madden NFL programmer up to $11 million in damages based on claims over intellectual property.
