EA and NCAA's appeal rejected in likeness lawsuit
The Ninth Circuit Court of Appeals has rejected an appeal by EA and NCAA that college athletes' likenesses were protected by the First Amendment with regard to the development of EA's college football and basketball games. Just yesterday, EA motioned to dismiss a third amended complaint that added six current NCAA student athletes to certify the class in the lawsuit.
The majority opinion held by the court stated that "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." This began with former Nebraska quarterback Samuel Keller filing a class-action lawsuit against EA in May 2009. The suit has since been combined with that of former UCLA basketball player Ed O'Bannon, according to Bloomberg.
NCAA opted to not renew its contract with EA for development of the NCAA Football series earlier this month. EA stated that it will move forward in developing college football games with licensing provided by the Collegiate Licensing Company for the next three years on a non-exclusive basis.
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Ninth Circuit Court of Appeals Rejects EA, NCAA Appeal in Player Likeness Case
SEATTLE – Today a U.S. court of appeals handed down a ruling in the high-profile case against Electronic Arts (NASDAQ: EA) and the National Collegiate Athletic Association (NCAA) over the use of student-athletes' likenesses in video games, gutting Electronic Arts' claim that the practice is protected by the First Amendment.
The ruling, handed down by the Ninth Circuit Court of Appeals, remands the case back to the trial court to proceed against all defendants, including the NCAA.
The case, originally filed on May 5, 2009, in U.S. District Court in Northern California, was brought by Sam Keller, a former starting quarterback for Arizona State University and University of Nebraska. Keller and his attorneys at Hagens Berman Sobol Shapiro LLP claim that EA's NCAA games use the athletes' likenesses, accurately depicting the height, age, weight and other information, without 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 a 2-1 decision, the appellate court 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."
According to Steve Berman, managing partner of Hagens Berman and the attorney who argued Keller's case on appeal, today's ruling is a pivotal point in the four-year litigation.
"The Court of Appeals confirmed that EA's defense – the First Amendment claim – was fundamentally and fatally flawed," Berman said. "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."
A status call on the case is scheduled for Sept. 5, 2013.
Today's ruling follows the NCAA's decision two weeks ago to not renew its licensing relationship with EA when it expires in 2014.
"Today's ruling, combined with the NCAA's decision not to renew its license, speaks volumes about the actions of the defendants," said Berman. "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. 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."
More information about the case is available at www.hbsslaw.com/NCAAvideogames.
