9th Circuit Rejects Dismissal of Case Involving Using NFL Players in Video Games Without Permission

On January 6, 2015, the 9th Circuit held for the former pro football players and agreed with the U.S. District Judge Richard Seeborg of San Francisco that the class action should go forth to litigation and that free speech principles should not be used to shield liability from depicting the players without playing them. David v. Electronic Arts Inc., 2015 DJDAR 229. Although Electronic Arts (“EA”) do pay millions of dollars in licensing fees to current players that they depict the their bestselling Madden NFL series, there are about 6,000 unpaid retired players who appear, unnamed by identifiably by position, years in the NFL, height, weight, skin tone and skill level, in a “historic teams” series.

EA argued before the 9th Circuit panel that under the First Amendment, there is a strong constitutional protection that guarantees free expression by creators of games, books, movies and other artworks. However, the panel appeared skeptical and stated that hundreds of thousands of data points does not amount to expressive work but are just “a bunch of data.” The EA also failed the transformative use test, which tests if the players’ look was sufficiently different as to be able to claim an altered image, along with other tests including the public interest defense, the Rogers test regarding trademark confusion, the incidental use test, and an anti-SLAPP defense, which cites a California law designed to eliminate meritless suits that seek to chill protected speech.

EA settled another suit against former college players in NCAA football related video games for $20 million and another by the then current NCAA players for $40 million. In re NCAA Student Athlete Name & Likeness Licensing Litigation, 724 F.3rd 1268 (9th Cir. 2013).  History may repeat itself, however any settlement or damage reward pales in comparison to EA’s multi-billion dollar viability.