Major Defense for EA in Likeness Suit Struck Down by Appeals Court

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Posted July 31st, 2013 at 11:15 am

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A federal appeals court turned in a split decision today overruling the argument by Electronic Arts that the First Amendment gave them protection as free expression and artistic works in the representation of players in college video games. The 2-1 ruling prevents the company from using the First Amendment as a defense against collegiate athletes who feel their likeness has been misused but it does not represent closure on the subject by any means. 

The majority ruled by stating EA “does not qualify for First Amendment protection as a matter of law because it literally recreates (Sam) Keller in the very setting in which he has achieved renown”. Also cited were accuracies concerning height, weight, skin tone, build, hair color, home state, handedness, and year of eligibility. The ability to edit player names for jerseys and share them got mention as being problematic.

The dissenting opinion was written that “because the creative and transformative elements of Electronic Arts’ NCAA Football video game series predominate over the commercial use of the athletes’ likenesses, the First Amendment protects EA from liability”.

The company will now appeal this decision by the 9th Circuit Court and the Supreme Court seems likely to make the final determination. It’s worth noting The 9th is one of the most reversed courts in the nation. Since 2005 78% of their cases that have reached the Supreme Court have been reversed.

In the process of making the argument EA had pointed to other media including movies which are not subject to judgments based on incorporating someone’s name or likeness. Consider for example 2010’s The Social Network. Mark Zuckerberg was not involved in the making of the film (or the book it was adapted from “The Accidental Billionaires”) yet his name, likeness, and story were used without any legal recourse.

In a separate decision the appeal brought by Jim Brown regarding the dismissal of the claim from 2009 that EA had used his likeness in Madden games was rejected by the court unanimously. Brown had argued that a player similar in make-up to himself (as with NCAA players the company didn’t use his name) represented a “false endorsement” of the product. The court determined his appearance was “artistically relevant” and EA never attempted to mislead consumers about any personal involvement with the product.

Today’s decisions don’t affect the current attempt at being dismissed from the lawsuit prior to the decision on whether it will be certified as class action. EA has been granted a September 5th hearing to argue that they should not be a defendant in the case given they were only following the NCAA’s rules.

Earlier/Summary Below

The player likeness lawsuit against the NCAA, CLC, and Electronic Arts is the culmination of two high profile filings that were combined as led by Sam Keller and Ed O’Bannon (and O’Bannon now heads it up). It alleges improper use of player likeness through various forms of merchandise and media including video games in which the parties in question conspired to avoid paying players for their rights. Some interesting details and claims regarding the case at hand were revealed when EA was reentered as a defendant after initially being dismissed.

EA originally won a previous case regarding player likeness with the courts ruling video games are artistic works rather than commercial speech and therefore protected by the First Amendment. The Supreme Court in 2011 established forms of media, producing expressive works of art, are not subject to judgments based on incorporating someone’s name or likeness. That dismissed case however, involving Ryan Hart, has resurfaced after an appeals court reversed a decision based on that argument.

Recent uncovered emails have shown that NCAA representatives were well aware that players in games were based off real-life players. At one point the NCAA and EA had nearly reached an agreement to have actual player names included in the products. The EA Locker / Roster Share feature was a fallback option. With momentum clearly on the plantiffs’ side NCAA reps have begun to publicly express concern over the future of collegiate sports. A former EA Sports producer admitted players in NCAA games were based off real athletes.

The discovery of Tim Tebow’s name being in NCAA Football 10 could throw another wrench into EA’s series of arguments. Depositions from former Alabama wide receiver Tyrone Prothro and UConn basketball guard Tate George support the defendant’s reasoning for denying class action certification. The class action hearing resulted in the judge heavily questioning the legitimacy of a potential class and insisting a current athlete be involved. The judge required current athletes be added as plaintiffs for that party to have representation if the case is certified as class action. Six current college football players were added as plaintiffs in mid-July. EA is now arguing to be dismissed as a defendant in the suit.

This consolidated case in California if certified as class action would go to trial – barring a settlement – and ultimately be the determining factor of how the NCAA proceeds in the future handling broadcasting rights, merchandising, and video games. Should a negative result come down, which one analyst has pegged as being a potential loss of $1 billion for EA, it would likely not just end the NCAA Football series but also with it any realistic possibility of college sports games being made in the future. The trial now is slated to begin June 2014. Appeals following a decision could extend the fight through 2020.

  • Kevin C

    EA made a lot of money they would not have otherwise made if these player likenesses weren’t included. The fact that so many (including pasta) say the game just wouldn’t sell well without the likenesses PROVES that it was a money maker more than anything, including artistic merit or transformative features. EA will lose or settle this case. It’s a clear as glass.

  • Tazdevil20

    Bryan, do you think all of this bad press raises the eyebrows of the NFL and NFLPA? I’m not an EA hater. I’ve been extremely disappointed with Madden over the last decade, however, like most of us. I think competition would be a great thing in the NFL space, and I am wondering if the NFL would be reconsidering their partnership here. Also, I wonder if a big loss like this would potentially put a dent in EA’s ability to pony up the money to keep the NFL satisfied. Your thoughts?

    • http://pastapadre.com/ pastapadre

      I don’t think it has any influence on either party. Ultimately the NFL backed themselves into a situation where they have no choice but to stick with EA, and EA knows this and will be able to force a much better deal for them because of it.

      • Tazdevil20

        It’s interesting you say that. I was having a conversation with a friend about this the other day. The NFL really screwed themselves here with this situation. The video game exclusive is different from all of the other exclusives. If the NFL chooses Nike over Reebok for 3 years, Reebok can still make athletic apparel and can still compete for the license just fine when the time comes. Same with beer, Sunday Ticket, etc. This creates a competitive scenario for the NFL’s name and drives up the price the NFL can charge.

        However, in the case of games, the NFL essentially eliminated all companies from being able to effectively produce an NFL game worth the investment in start up. This simply gives EA the power to tell the NFL that they can accept what they are willing to pay, or have no game at all (and our ridiculous marketing and hype engine). Stupid move by the NFL on all accounts. Not just for us as consumers, but even for themselves. As much as I would love for 2k to be able to come back, I just don’t see it. In fact, I don’t see any company wanting to take the risk. They would have to heavily invest initially, and they would probably be too afraid that EA would end up securing another exclusive down the line which would nullify all of their profit margin in the future.

        This was a colossally devastating occurrence for the football gaming community. It’s really a shame.

  • Keith.

    Can’t wait to hear what EA’s CEO has to say about this latest legal loss (in a long string of ‘em) during EA’s annual meeting at 5 pm EST today.

    Oh that’s right…they still don’t have a CEO. LoL

    Told you EA was going to lose at the 9th Circuit, Pasta…and you can be sure that I’ll be here in another few months to tell you “I told you so” again when the Supreme Court refuses to hear EA’s merit-less appeal.

    • Brian

      Did Pasta actively disagree with you? Or was he just being partial to both sides, just reporting without bias. I feel like you take a lot of liberties in the argument you made. Simply posting on his side, turns into an I told you so.

      • Keith.

        Sorry, didn’t mean to imply that Pasta’s last 9th Circuit article had any bias in it. Just that I said EA was going to lose, and they did.

      • Keith.

        Unlike the Madden Monopoly lawsuit, Pasta’s generally been pretty partial regarding the Player Likeness lawsuits (EA’s involved in so many lawsuits it can be hard to keep track). Didn’t mean to suggest he wasn’t — just that I said EA was going to lose at the 9th Circuit, and they did.

        Next prediction? The Supreme Court refusing to even hear EA’s appeal.

        • Keith.

          Sports Illustrated’s “legal expert” makes the same prediction:

          “SI.com: What impact does this decision have on the Ed O’Bannon v. the NCAA case?

          Michael McCann: This is a very significant decision because the Keller case was held in the same federal circuit as the O’Bannon case. The Keller decision creates precedent that the judge in the O’Bannon case, Claudia Wilken, will have to follow. This helps O’Bannon as it relates to EA because Electronic Arts cannot successfully argue that players in games reflect the artwork of the video-game programmer more than the players themselves.

          SI.com: How will EA respond to this decision?

          MM: EA has said it will appeal this decision, but an appeal is unlikely to succeed. However, EA now has greater motivation to offer O’Bannon more attractive settlement terms than it did before, because the O’Bannon legal team can use this positive Keller decision as leverage.

          SI.com: How does the Keller decision relate to the Ryan Hart case in the U.S. Court of Appeals for the 3rd Circuit?

          MM: The Keller decision is consistent with the U.S. Court of Appeals decision in the Ryan Hart case. Both courts agree that players in video games are actually renditions of players in real life, and that players should be compensated for being in the games.

          SI.com: Will the U.S. Supreme Court get involved in this case?

          MM: The U.S. Supreme Court is unlikely to take a case where different federal circuit courts agree that the avatars of these players are renditions of the actual players. Since only two Courts of Appeals have opined on this, and since they both agree, it’s unlikely that the Supreme Court will take this type of case on appeal.

          http://college-football.si.com/2013/07/31/ea-sports-sam-keller-ed-obannon/

  • JoeCollege

    NCAA is run by hypocrites

  • rinodino

    So it sounds like EA has just has enough time to make one more college football game to give us, before the shit hits the fan and no more college sport games. They better make 15 count.

  • PPerfect_CJ

    I know this really has nothing to do with this article, but come on, EA. In the picture above, why the hell is the USC quarterback wearing that facemask?! Is ridiculous equipment a veiled attempt to hide player likeness?

  • AmazinsCowboys

    When I go to download the free uni pack it downloads fine but the game says download aborted. also when I go to import a team builder uniform for my rtg character it says I have no teams created even though I just made one online. Any have an idea of how to fix one or both?

  • John Hancock

    Hopefully the Supreme Court will put an end to this nonsense.

  • jwallace0317

    I think it’s pure speculation to say that “the Supreme Court seems likely to make the final determination” in the Keller case. There is no automatic right to Supreme Court review. Instead, review by the Supreme Court is discretionary, and it declines review in the overwhelming majority of cases, leaving the decisions issued by the various Courts of Appeals in those cases to stand undisturbed.

    • Keith.

      Exactly.

      “Fewer than 1 percent of the cases heard by federal appeals courts are later reviewed by the Supreme Court.”

      http://www2.maxwell.syr.edu/plegal/scales/court.html

      And given that both of the Court of Appeals that have already ruled on the issue have ruled the same way (against EA), I’d say there’s close to a 0 percent chance that “the Supreme Court seems likely to make the final determination” as Pasta claims. Without a circuit split, it just ain’t happening.

  • jwallace0317
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