Court rejects EA’s First Amendment appeal in player likeness case

A court has ruled in favor of ex-NCAA athletes in a lawsuit filed against Electronic Arts and the NCAA which claims the companies used the student-athletes' likenesses in video games.

In a 2-1 decision, the Ninth Circuit Court of Appeals rejected EA's claim that the practice of using a player's likeness is protected by the First Amendment. 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.”

The case, originally filed on May 5, 2009, was brought by former Arizona State University quarterback Sam Keller. In it, Keller and his attorneys claim that EA's NCAA games use the athletes' likenesses, accurately depicting the height, age, weight, and other information without permission.

“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.”

The ruling comes two weeks after the NCAA decided not to renew its licensing relationship with EA when it expires in 2014. Despite the NCAA's decision, EA maintains that it will continue to develop and publish college football games, a statement that was bolstered by the company's recent signing of a three-year contract with the Collegiate Licensing Company (CLC), the entity that handles trademark licensing and marketing services for universities.