9th Circuit denies EA Sports' appeal

Electronic Arts lost an appeal Wednesday in a case over its college football video game when a federal court dismissed arguments the company had made in hopes of justifying its use of an athlete's likeness without permission.

The appellate court affirmed a decision of a U.S. District Court that EA Sports could not use a First Amendment defense to protect it against the rights of publicity claims filed by former Arizona State and Nebraska quarterback Sam Keller.

A panel of judges on the 9th Circuit Court of Appeals in California voted 2-1 that EA was not protected by free speech because the company created the the likeness of Keller "in the very setting in which he has achieved renown."

"Given that NCAA football realistically portrays college football players in the context of college football games, the district court was correct in concluding that EA cannot prevail," Judge Jay S. Bybee wrote in the decision.

Keller argued that EA violated his rights of publicity by using his likeness, and the likeness of others, in its NCAA college football games without approval.

Rob Carey, the attorney for Keller and other former players who joined him in the lawsuit, told Tom Farrey of "Outside the Lines" that his legal team now plans to take aim at the NCAA, a co-defendant with EA. If Keller did not have a valid claim against EA, he would not have had a claim against NCAA.

"Because we won against EA, we will be able to go against the NCAA for its looking the other way and increasing its royalty payments by using the likenesses of the students," Carey said. "We look forward to showing a jury the hypocrisy of the NCAA along with the blatant misappropriation by Electronic Arts of the property of the student athletes."

While EA's college games did not use the players' names, most of the players had the same jersey number, height, weight, skin tone, hair color and home state listed in their in-game bio.

EA also sought to dismiss the case by arguing that the information it filled in for the players was allowed because it was statistics that were relevant to the public interest. The appeals court denied that claim as well, differentiating EA from a form of media by saying that "EA is not publishing or reporting factual data."

Nathan Siegel, a First Amendment lawyer who had filed a brief with the court in support of EA and on behalf of media companies (including ESPN), called the decision "disappointing." He said it was a departure from past court rulings in which media companies have won cases allowing them to use personas or performances of athletes in fantasy games and other commercial products.

"This decision flies in the face of principles of creative expression that have been in place for decades," Siegel told Farrey. "The court is doing one of two things. It's either creating a special rule of law for video games, even though the Supreme Court said a few years ago that video games have the same right of expression as other forms of media. Or, the court is articulating some principle that could be applied more broadly, which would open the door for more celebrities to assert their rights [to publicity in media products]."

Siegel said he expects EA to appeal the decision to the full, 11-member Ninth Circuit court and, if necessary, the Supreme Court.

EA spokesman John Reseburg declined to say what EA's next step would be, only that the company is "disappointed with the ruling against First Amendment protection in the Keller case. We believe the reasoning in Judge [Sidney] Thomas' dissent in that decision will ultimately prevail as we seek further court review."

The Keller case can now proceed along with an identical case in New Jersey, which was brought by former Rutgers quarterback Ryan Hart. In May, an appellate court there also denied EA's First Amendment claim.

It has been a busy month for Electronic Arts, which saw the NCAA drop out as a partner to its college football game earlier this month as the pressure mounts in another case featuring former UCLA basketball player Ed O'Bannon. EA said it will continue to publish the game in the same manner but will not use the NCAA logo in future titles.

The news wasn't all bad for EA on Tuesday. In an unrelated decision, the same three-judge panel from the Ninth Circuit that ruled against EA rejected an appeal by former NFL star Jim Brown to reinstate in his lawsuit against the video game company, which had used his likeness in the Madden NFL game.

EA has a licensing agreement with NFL Players Association to use of the names and likenesses of current players. Brown, as a former player, is not covered by those agreements, and argued that his rights were infringed. The panel concluded that Brown's likeness was "artistically relevant to the games and that there were no alleged facts to support the claim that Electronic Arts explicitly misled consumers as to Brown's involvement with the games."

Information from Tom Farrey of ESPN's "Outside The Lines" contributed to this report.