Ex-NFL players' case against EA Sports' video game franchise can proceed

A federal appeals court has refused to dismiss a case filed by former professional football players against a video game producer over the use of their likenesses, rejecting the producer's argument that the use is protected under the First Amendment.

“We are called upon to balance the right of publicity of former professional football players against Electronic Arts' First Amendment right to use their likenesses in its Madden NFL series of video games,” says Tuesday's unanimous ruling by the three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco in Michael E. Davis et al. v. Electronic Arts Inc.

According to the ruling, each annual version of the game in question, “Madden NFL,” includes all current players for all 32 National Football League teams along with accurate player names, team logos, colors and uniforms, for which Redwood City, California-based Electronic Arts pays annual licensing fees.

In addition, however, from 2001 through 2009, the game also included certain particularly successful or popular “historic teams” for which no license was obtained.

Although the players on these historic teams were not identified by name or photograph, each is described by his position, years in the NFL, height, weight, skin tone “and relative skill level in different aspects of the sport,” says the ruling.

Electronic Arts states “its use of former players' likenesses is protected under the First Amendment as 'incidental use,'” says the ruling. “We disagree.

“We hold (Electronic Arts') use of former players is not incidental because it is central to (Electronic Arts') main commercial purpose — to create a realistic virtual simulation of football games involving current and former (National Football League) teams,” says the appeals panel, in upholding a ruling by the U.S. District Court in San Francisco.

In a comparable lawsuit in July 2013, a divided 9th Circuit panel ruled against Electronic Arts in a lawsuit filed by former collegiate athletes who accused the company of using their images in video games without permission.