One of These Things is Not Like The Other: Electronic Arts and Retired NFL Players Argue Over Class Certification in Likeness Suit

On September 22, 2016, Electronic Arts and retired NFL players who claim that “Madden NFL” uses their likeness without permission argued over class certification in a California federal court. At the hearing, the parties debated whether publicity is a property right and the feasibility of ascertaining thousands of players’ avatars.

The players’ attorney, Brian Douglas Henri, stated that suit was properly brought under California state law, reasoning that EA’s headquarters are in the Bay Area. Judge Richard Seeborg questioned why state law should apply when the damages allegedly occurred nationwide, and Henri explained that publication of the game was the event that triggered liability, which took place in California.

On the other side, EA attorney R. James Slaughter argued that this is actually a proposed nationwide class seeking nationwide claims under state law, citing to the Ninth Circuit’s 2012 decision in Mazza v. American Honda Motor Co., which decertified a nationwide class who sued under California law. He disputed the event that triggered liability, explaining that the last occurring event was actually the sale.

Furthermore, Slaughter argued that publicity is a property right, and that the laws governing it vary widely from state to state. Finally, he explained that it would be impossible to properly identify class members in the case, as utilizing the plaintiffs’ suggestion of identifying an avatar and comparing his stats in game to an NFL roster would be far too unwieldy.

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