Court of Appeals Rejects EA's First Amendment Claim in NCAA Lawsuit

July 31, 2013 -

Today a U.S. court of appeals handed down a ruling in the case against Electronic Arts (EA) and the National Collegiate Athletic Association (NCAA) over the use of student-athletes’ likenesses in video games. Electronic Arts argued that using a player's likenesses was a practice protected by the First Amendment. In a 2-1 decision, the Ninth Circuit Court of Appeals disagreed, and remanded the case back to the trial court to proceed against all defendants, including the NCAA.

The case, which was originally filed on May 5, 2009 in U.S. District Court in Northern California, was brought by former starting quarterback for Arizona State University and University of Nebraska, Sam Keller. Keller, represented by law firm Hagens Berman Sobol Shapiro LLP, claim that EA’s NCAA games use athletes’ likenesses, including height, age, weight, and other information, without permission.

"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," read the decision.

"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, combined with the NCAA’s decision not to renew its license, speaks volumes about the actions of the defendants," added 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."

A hearing on whether the lawsuit will be given class action status takes place Sept. 5.


Re: Court of Appeals Rejects EA's First Amendment Claim in ...

I wonder how this ruling will effect the use of people's likeness is editorial games. You know, those games designed to make fun of a political figure or some other public figure. Would the creator of such games be open to lawsuits over the unauthorized use of their likeness? Or is the game's creator protected because of the satirical and editorial nature of the game? 

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