Game Over: SCOTUS Refuses to Hear Appeal on Sports Video Game First Amendment Issue

On Monday, March 21, 2016, the Supreme Court refused to hear Electronic Arts Inc.’s appeal from a Ninth Circuit ruling that the First Amendment did not protect it from a class action suit brought by retired NFL players.

The underlying lawsuit, originally filed in 2010, arises out of the inclusion of “historic teams” in EA’s popular video game “Madden NFL.” Specifically, the suit alleged that EA’s use of “historic teams,” past teams that were particularly popular or famous, impermissibly violated players’ state-law rights of publicity.

The Ninth Circuit rejected EA’s contention that the at-issue uses of the players constituted a protected “transformative use,” opining:

EA’s use of the former players’ likenesses is not incidental, because it is central to EA’s main commercial purpose – to create a realistic virtual simulation of football games involving current and former NFL teams…

Despite EA’s argument that a holding precluding First Amendment protection under the circumstances would have a chilling effect on artists who need to accurately portray real people, the Supreme Court denied certiorari without explanation.

This case closely resembles class action litigation between EA and college athletes in relation to EA’s “NCAA Football” video games. In that lawsuit the Ninth Circuit also held that the First Amendment did not shield EA from a right-of-publicity suit.

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