Electronic Arts Cannot Escape ex-NFL Players’ Lawsuit

On Tuesday, January 6, the 9th Circuit Court of Appeals denied Electronic Arts’ motion seeking dismissal of a lawsuit brought by ex-NFL players who claim EA used their likenesses without permission in ‘Madden NFL’ videogames.

The lawsuit, initiated in April of 2012, is very similar to the lawsuit against Electronic Arts brought by former NCAA players for EA’s unlicensed use of their likenesses in sports videogames.  This time, it is ex-NFL players bringing the lawsuit for the use of their likenesses in the ‘Madden NFL’ series.  The lead plaintiff of the NCAA suit, Sam Keller, is also a named plaintiff in the NFL suit.

Electronic Arts sought to have the case dismissed, claiming protection of free speech under the First Amendment to the US Constitution.  The district court, however, denied the motion, and the 9th Circuit affirmed that denial on appeal.  The court cited to the previous NCAA case against EA in denying the majority of EA’s arguments as they were materially indistinguishable from those used in the NCAA case, which were also denied by the 9th circuit.  EA’s only new argument was that the se of the likenesses was ‘incidental’ and therefore protected.  The 9th Circuit disagreed, finding the use to be central to EA’s commercial purpose of creating a realistic virtual simulation.

The NCAA lawsuit against EA ended in a settlement for $40 million.  Given the similarity between the two lawsuits, a similar settlement may be a possibility.

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