For the second time, a federal appeals court has struck down a key defence Electronic Arts has used in its long-running legal fight against college athletes who say their likenesses have been used in EA Sports video games without their permission.
Electronic Arts had claimed a First Amendment right of artistic expression in how it depicted college players in the rosters of its NCAA Football and its now-canceled NCAA Basketball series. In the games, universities' teams had players whose talents and physical appearances were based on real life performers, but their names were omitted.
Samuel Keller, a former quarterback for Arizona State and Nebraska sued Electronic Arts back in 2009 over this practice. Electronic Arts, emboldened by a 2011 Supreme Court ruling in another matter that video games were protected works of free expression, like films and books, deployed the First Amendment defence in this case and also in one involving the former Rutgers quarterback Ryan Hart.
EA originally prevailed on its First Amendment grounds at the district court level against Hart, back in 2011, but Hart appealed, and the First Amendment protection was overturned by a federal appeals court back in May. Essentially the same thing happened today, in a 2-1 decision by the Ninth Circuit Court of Appeals, which covers Northern California.
Electronic Arts said it intended to appeal. The fact EA is using a First Amendment defence in two different districts almost guarantees the matter will end up before the U.S. Supreme Court to be resolved once and for all.
“The Court of Appeals confirmed that EA’s defence — the First Amendment claim — was fundamentally and fatally flawed,” said Steve Berman, Keller's attorney. “We expect that when we appear before the trial court again this fall, the defendants will have a very difficult time mounting a new defence for their blatant exploitation of student-athletes.
“We are confident that EA and the NCAA made millions of dollars at the expense of student-athletes by improperly taking property belonging to the athletes and the athletes alone," Berman added. "This ruling will give us a chance not only to recover the value of the images for the college athletes, but also to punish EA and the NCAA for intentionally profiting off of things they knew were off limits to them.”
In the Keller decision today, the two-judge majority said Electronic Arts, "literally recreates Keller in the very setting in which he has achieved renown," rejecting the claim that his appearance was altered enough to prevail against a right-of-publicity claim. Like practically all players, Keller's attorneys argued that his appearance for Arizona State in NCAA Football 2005 gave Keller the same height, weight, hair colour, home state, school year, skin tone, throwing handedness, uniform numeral as he has in real life.
The dissenting judge, Sidney Thomas, said the games did have creative and transformative elements that "predominate over the commercial use of the athletes' likenesses."
"We believe the reasoning in Judge Thomas’ dissent in that decision will ultimately prevail as we seek further court review," EA spokesman John Reseburg said in a statement.
Essentially, the First Amendment defence EA uses is the same usage that entitles a filmmaker to make a movie about an actual person — say, General George Patton — without that subject's permission or compensation.
Several professional athletes' unions filed briefs opposing Electronic Arts' defence in the Hart case, despite the fact they already licence EA Sports games. They considered the First Amendment claim an overreach that deprives their members of the right to control their likeness, obviously a valuable commodity in the markets of sports entertainment and memorabilia. The group licence that the NFL Players Association, the Major League Baseball Players Association and others sell to video game makers are among the richest deals those unions' licensing arms have.
In a separate ruling on Wednesday, however, Electronic Arts prevailed against NFL Hall of Famer Jim Brown in a similar matter. Brown had sued EA over a similar inclusion in a roster of all-time greats in EA Sports' Madden series several years ago. But in a unanimous 3-0 ruling by the same Ninth Circuit panel, the judges found that Brown's appearance was "artistically relevant
"We’re pleased with the outcome regarding Jim Brown’s likeness, but equally disappointed with the ruling against First Amendment protection in the Keller case," Reseburg said.