Student athletes defeat EA in lawsuit

Submitted by pasadenablue on

Seems to have broken about an hour ago.

In a 2-1 vote, the 9th U.S. Circuit Court of Appeals agreed with a lower court that EA had used the images in its video games of several ex-NCAA athletes without their permission in its NCAA football and basketball series. The decision comes two weeks after EA lost the rights to put the NCAA logo and name on its games beyond this year.
 
Circuit Judge Jay Bybee, writing for the majority of the court, said EA's game "literally recreates [Arizona State University quarterback Samuel] Keller in the very setting in which he has achieved renown."
 
Circuit Judge Sidney Thomas dissented, however, arguing that the games' creative elements "predominate over the commercial use of the athletes' likenesses" and that "Keller's impressive physical likeness can be morphed by the gamer into an overweight and slow virtual athlete, with anemic passing ability".
 
The decision could open up additional legal action against the video game publisher from other former college athletes who have been unhappy with their likenesses being used in the games without compensation.

http://www.nbcnews.com/business/former-ncaa-athletes-win-video-game-lawsuit-against-ea-6C10809666

http://www.reuters.com/article/2013/07/31/us-electronicarts-lawsuit-idUSBRE96U0VA20130731

1464

July 31st, 2013 at 5:03 PM ^

Little bit of sensationalism in your headline.  They were not denied the ability to file for class action.  They haven't won anything.  It's more akin to scoring an early TD than to winning the game as a whole.

ChiBlueBoy

July 31st, 2013 at 5:32 PM ^

"Defeat" is a strong word for this. For us MgoLawyers, we would see this as a victory (and a significant one), but EA is far from defeat at this point. It will come back with new arguments, and there's a long way to go before any money moves from one pocket to another.

vablue

July 31st, 2013 at 5:05 PM ^

Seems more like a victory for the ex student athlete. I am on the NCAA's side on this larger issue, but I do think the ex student athlete has a legit case when their likeness continues to be used, even if they did sign away their rights.

GRFS11

July 31st, 2013 at 5:14 PM ^

For class actions, the biggest battle is often the ability to file for a class/obtain class status at all, because then the company (EA) is facing a massive potential loss. Often forces settlements.

samdrussBLUE

July 31st, 2013 at 5:14 PM ^

How can an ex student athlete continue to be used? If they leave school they would not be in any future games, unless as a legacy character in the game. What am I missing here?

jackrobert

July 31st, 2013 at 5:34 PM ^

Not sure if this is what you are asking, but the NCAA has required (and still does, I believe) student athletes to sign away their right of publicity in their likeness in perpetuity when they sign their letter of intent.  Having acquired a monopoly over the likeness of all current and past student athletes, the NCAA then sells those likenesses to EA Sports, which in turn creates current teams and legacy teams stocked with these likenesses.

samdrussBLUE

July 31st, 2013 at 5:12 PM ^

To me this is kind of bullshit. Strictly talking about EA, and not should athletes be compensated, I feel like EA does nothing wrong. They have licensing from the schools and NCAA, currently, and they create teams with players "similar" to the actual players. But have covered themselves with noticeable differences between the real guys and the game. Would seem if EA gets hammered hard than that means college athletes should be compensated from their likeness/contributions in every other aspect of their amateurism.



I don't know this at all, but what do NFL players get, all of them, for Madden every year it is released? Pool of money to the players union?

unWavering

July 31st, 2013 at 5:23 PM ^

EA clearly is reproducing the teams and student athletes - who are ameteurs - and making a profit off of them.  They have the same numbers, sizes, skin colors, etc.  That being said, I personally don't think the players are being manipulated or taken advantage of.  I think EA's bigger crime is producing the same game each and every year and branding it as new.

NFL guys don't see any monetary gain from Madden because of clauses in their contracts (someone correct me if I'm wrong here).  

 

pasadenablue

July 31st, 2013 at 7:31 PM ^

https://www.nflplayers.com/About-us/Group-Licensing/

 

Any program utilizing six (6) or more NFL players in conjunction with consumer products, marketing, advertising or sales initiatives requires a license from NFL PLAYERS Inc – the marketing and licensing subsidiary of the NFLPA. These may include products that are sold at retail or used as promotional or premium items. We currently work with over 60 licensees who use almost 2,000 players in products ranging from video games to trading cards to apps. For questions, please contact Group Licensing at (202) 572-7500. Please check out the licensee pages for a full list of our licensing partners.

 

Well, though I'm (as mentioned before) obviously not a lawyer, that kinda makes its seem that players may have the choice to selectively opt out of the licensing agreement with any sponsor.

 

I figure players would rather be in the game than not, due to increased publicity.  Players in other leagues have held their names out of games (MJ is the biggest example).  There is also the case of Bill Belichick and Sean Payton being listed as NE Coach and NO Coach in Madden 13, due to Payton's suspension, and Belichick's refusal to join the NFL Coaches Association (which handles licensing agreements for the coaches).

The Dirty Nil

July 31st, 2013 at 5:37 PM ^

In my opinion (which doesn't mean much), EA isn't exactly profiting from the athletes, but more from the schools being on the game. A lot of gamers don't even recognize the default rosters and use the team builder feature for more accurate rosters. The numbers are often wrong, and the players don't all have their own running styles like madden.



Goes both ways though I guess..

taistreetsmyhero

July 31st, 2013 at 6:47 PM ^

I wonder who "that guy" is who gets NCAA 14 and then proceeds to exemplify the game's creativity by morphing Devin Gardner into "Fat Slob QB #69."



Actually, now that I think about it, I think it may be time to turn Braxton Miller into "Cooler Pooper Exhibit #5"