In Pursuit of Class Certification against EA, Retired NFL Players Cite Bette Midler

The retired NFL players suing Electronic Arts Inc. (EA) are citing an unexpected figure in their continued efforts to gain class certification: singer Bette Midler.

The athletes’ action against EA began in 2010, over the company using their likeness in the video games, arguing that, while EA pays the NFL players union when featuring the names and likeness of current players, EA failed to compensate retired players in the same fashion. A federal judge recently ruled against the athletes, refusing to certify their case as a class action, holding that each class member must be identified within the video game.

Now, the players argue that the judge’s ruling conflicts with precedent, pointing to a ruling in 1988 in which Bette Midler was authorized to sue Ford Motor Co. for featuring a “sound alike” singer in their commercials without just compensation to Midler.

In their motion for consideration, the athletes contend, “As the Midler court makes clear and contrary to this court’s holding, EA’s conduct of suggesting that the former NFL players are in Madden NFL is enough to state a misappropriation claim, and it is ‘irrelevant’ whether each class member can be identified within the game.”

The players continue their battle towards class certification, as such certification dramatically increases the potential damages threatened towards EA.

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