EA Asks Appeals Court to Delay Ruling on Athletes’ Suit

Electronic Arts Inc. urged a federal appeals court in California to put on hold a ruling that bars a First Amendment defense to lawsuits accusing the company of profiting from using likenesses of college athletes.

The U.S. Court of Appeals in Philadelphia ruled the opposite in a similar case and said the company was constitutionally protected from claims by college athletes who allege EA violated their rights by using their likenesses in videogames, company lawyers said in a filing yesterday in the U.S. Court of Appeals in San Francisco.

Electronic Arts intends to ask the U.S. Supreme Court to review both rulings and asked that the July 31 decision by the San Francisco-based court, which takes effect Aug. 21, be put on hold for 90 days to allow the company to petition the high court, said Kelli Sager, an EA attorney, in the filing.

In a 2-1 ruling in a case brought in 2009 by former Arizona State University quarterback Sam Keller, the San Francisco-based court said EA wasn’t protected against Keller’s suit because its “NCAA Football” games, which use athletes’ height, weight, hair color and skin tone, though not their names, “literally creates Keller in the very setting in which he has achieved renown.”

Former student basketball and football players allege that Electronic Arts and the NCAA, the governing body of most U.S. intercollegiate sports, conspired to use their likenesses in video games without their permission and without paying them, violating antitrust law and their rights of publicity.

Robert Carey, an attorney representing Keller, said he opposes EA's request. Once the ruling takes effect, Keller's lawyers will begin requesting documents from EA to prepare for trial, he said by phone.

``We've been waiting a long, long time to proceed with the case,'' Carey said.

The case is Keller v. Electronic Arts, 10-15387, U.S. Court of Appeals for the Ninth Circuit, (San Francisco).

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