On January 13, 2014, the U.S. Supreme Court denied the NCAA’s request to intervene as a party in Keller v. Electronic Arts Inc. The Keller case stems from 2009 and involves “rights of publicity” and antitrust claims. Former college football players alleged that the EA violated their right of publicity and conspired with the NCAA by using their image and likeness in its videogames.
In EA’s appeal, the Ninth Circuit held that the NCAA was not immune to the players’ claims because the depictions in EA’s video games were too realistic. EA and the Collegiate Licensing Company settled the antitrust suit three days after EA petitioned the Supreme Court in September 2013. The NCAA sought to intervene in the settlement because it was not a party to the Ninth Circuit decision but was a defendant in the trial court.
The NCAA told the Supreme Court that EA’s settlement may mean “that there will not be a party in the Supreme Court to raise the First Amendment issues, as EA had done in the Ninth Circuit.” The NCAA argued that the ruling should be reversed because it is inconsistent with core First Amendment principles. However, the Supreme Court denied NCAA’s petition to intervene.