On August 17, 2018, a group of retired NFL players was denied class certification in California Federal Court for the second time. As we have previously reported, the retired NFL players claimed that EA created physically and biographically similar avatars of the former NFL players and used them in their famous Madden NFL video game. According to the former players, EA used the player’s actual positions, teams, accurately pointed to the players’ retired statuses, and EA publicized their use by coining certain features of the game as “Historic” and “All-Time.”
According to the order denying class certification, the former players, who currently live and played professionally in nearly every state in the country, first attempt at certification was rejected because the players “failed to satisfy the threshold requirement of showing California law could properly be applied on a nationwide basis.” The prior order denying class certification noted, “[i]t might very well be that a former player living in some state that does not recognize a right of publicity would be entitled to sue in California, under California law, for a misappropriation of his likeness in products sold in California.”
In their most recent motion, the former players based their motion “on a narrowed proposed class definition that, on its face is limited to ‘video games that [were] sold or distributed in California.’” However, according to Judge Richard Seeborg, the former players “revised class definition may be sufficient to overcome the choice of law issue,” which plagued their first attempt at certification, but in their second attempt, the former players “have failed to identify sufficient common issues of law or fact, or that any such issues predominate, to warrant proceeding on a class basis.” As such, class certification was denied for the second time.